Skip to main content

Right to counsel

 

The right of a criminal defendant to have a lawyer assist in their defense, even if they cannot afford to pay for one. This right to does not apply in all cases, and comes from a variety of sources. The Sixth Amendment gives defendants the right to counsel in federal prosecutions, but the right was not applied to state prosecutions for felony offences until 1963 in Gideon v. Wainwright, 372 U.S. 335; see also Incorporation (of the Bill of Rights). Thus, the right to counsel does not apply in state non-felony cases.    

 

One area of controversy related to the right to counsel is the question of when the right attaches, or, in other words, when, in the process of criminal prosecution, the defendant gains the right. The Supreme Court has ruled that a defendant gains the right to an attorney “at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or arraignment” Brewer v. Williams, 430 U.S. 387  at 398 (1976).   

 

In addition, the Supreme Court has ruled that the right to a lawyer implies the right to an effective lawyer.  

 

Definition from Nolo’s Plain-English Law Dictionary

The right of criminal defendants to have a lawyer appointed by the court to represent them if the defendants cannot afford to hire one. The Sixth Amendment of the U.S. Constitution guarantees this right to those charged with federal crimes; the U.S. Supreme Court case of Gideon v. Wainright extended this right to those charged with state offenses. The right to counsel applies only where the defendant faces the possibility of imprisonment, and only at trial and through the first appeal, if the defendant is convicted. Juveniles are also entitled to counsel.

Definition provided by Nolo’s Plain-English Law Dictionary.

August 19, 2010, 5:23 pm

 

[R]eason and reflection [] require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

Gideon v. Wainwright, 372 U.S. 335 (1963)