CRS Annotated Constitution

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The provision requires, of course, that the defendant be afforded legal process to compel witnesses to appear,186 but another apparent purpose of the provision was to make inapplicable in federal trials the common–law rule that in cases of treason or felony the accused was not allowed to introduce witnesses in his defense.187 “The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law,” applicable to states by way of the Fourteenth Amendment, and the right is violated by a state law providing that coparticipants in the same crime could not testify for one another.188

The right to present witnesses is not absolute, however; a court may refuse to allow a defense witness to testify when the court finds that defendant’s counsel willfully failed to identify the witness in a pretrial discovery request and thereby attempted to gain a tactical advantage.189

In Pennsylvania v. Ritchie, the Court indicated that requests to compel the government to reveal the identity of witnesses or produce exculpatory evidence should be evaluated under due process rather than compulsory process analysis, adding that “compulsory process provides no greater protections in this area than due process.”190


Development of an Absolute Right to Counsel at Trial

Neither in the Congress which proposed what became the Sixth Amendment guarantee that the accused is to have the assistance of counsel nor in the state ratifying conventions is there any[p.1430]indication of the understanding associated with the language employed. The development of the common–law principle in England had denied to anyone charged with a felony the right to retain counsel, while the right was afforded in misdemeanor cases, a rule ameliorated in practice, however, by the judicial practice of allowing counsel to argue points of law and then generously interpreting the limits of “legal questions.” The colonial and early state practice in this country was varied, ranging from the existent English practice to appointment of counsel in a few States where needed counsel could not be retained.191 Contemporaneously with the proposal and ratification of the Sixth Amendment, Congress enacted two statutory provisions which seemed to indicate an understanding that the guarantee was limited to assuring that a person wishing and able to afford counsel would not be denied that right.192 It was not until the 1930’s that the Supreme Court began expanding the clause to its present scope.

Powell v. Alabama.—The expansion began in Powell v. Alabama,193 in which the Court set aside the convictions of eight black youths sentenced to death in a hastily carried–out trial without benefit of counsel. Due process, Justice Sutherland said for the Court, always requires the observance of certain fundamental personal rights associated with a hearing, and “the right to the aid of counsel is of this fundamental character.” This observation was about the right to retain counsel of one’s choice and at one’s expense, and included an eloquent statement of the necessity of counsel. “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crimes, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent eviden[p.]the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”194

The failure to afford the defendants an opportunity to retain counsel violated due process, but the Court acknowledged that as indigents the youths could not have retained counsel. Therefore, the Court concluded, under the circumstances—“the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their lives”—“the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment.” The holding was narrow. “[I]n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy,195

Johnson v. Zerbst.—Next step in the expansion came in Johnson v. Zerbst,196 in which the Court announced an absolute rule requiring appointment of counsel for federal criminal defendants who could not afford to retain a lawyer. The right to assistance of counsel, Justice Black wrote for the Court, “is necessary to insure fundamental human rights of life and liberty.” Without stopping to distinguish between the right to retain counsel and the right to have counsel provided if the defendant cannot afford to hire one, the Justice quoted Justice Sutherland’s invocation of the necessity of legal counsel for even the intelligent and educated layman and said: “The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.”197 Any waiver, the Court ruled, must be by the intelligent choice of the defendant, will not be presumed from[p.1432]a silent record, and must be determined by the trial court before proceeding in the absence of counsel.198


186 United States v. Cooper, 4 U.S. (4 Dall.) 341 (C.C. Pa. 1800) (Justice Chase on circuit).
187 3 J. Story, Commentaries on the Constitution of the United States 1786 (1833). See Rosen v. United States, 245 U.S. 467 (1918) .
188 Washington v. Texas, 388 U.S. 14, 19–23 (1967) . Texas did permit coparticipants to testify for the prosecution.
189 Taylor v. Illinois, 484 U.S. 400 (1988) .
190 480 U.S. 39, 56 (1987) (ordering trial court review of files of child services agency to determine whether they contain evidence material to defense in child abuse prosecution).
191 W. Beaney, The Right to Counsel in American Courts 8–26 (1955).
192 Section 35 of the Judiciary Act of 1789, ch.20, 1 Stat. 73 , provided that in federal courts parties could manage and plead their own causes personally or by the assistance of counsel as provided by the rules of court. The Act of April 30, 1790, ch.9, 1 Stat. 118 , provided: Every person who is indicted of treason or other capital crime, “shall be allowed to make his full defense by counsel learned in the law; and the court before which he is tried, or some judge thereof, shall immediately, upon his request, assign to him such counsel not exceeding two, as he may desire, and they shall have free access to him at all reasonable hours.” It was apparently the practice almost invariably to appoint counsel for indigent defendants charged with noncapital crimes, although it may be assumed that the practice fell short often of what is now constitutionally required. W. Beaney, The Right to Counsel in American Courts 29–30 (1955).
193 287 U.S. 45 (1932) .
194 Id. at 68–69.
195 Id. at 71.
196 304 U.S. 458 (1938) .
197 Id. at 462, 463.
198 Id. at 464–465. The standards for a valid waiver were tightened in Walker v. Johnston, 312 U.S. 275 (1941) , setting aside a guilty plea made without assistance of counsel, by a ruling requiring that a defendant appearing in court be advised of his right to counsel and asked whether or not he wished to waive the right. See also Von Moltke v. Gillies, 332 U.S. 708 (1948) ; Carnley v. Cochran, 369 U.S. 506 (1962) .
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