CRS Annotated Constitution

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Betts v. Brady and Progeny.—An effort to obtain the same rule in the state courts in all criminal proceedings was rebuffed in Betts v. Brady.199 Justice Roberts for the Court observed that the Sixth Amendment would compel the result only in federal courts but that in state courts the Due Process Clause of the Fourteenth Amendment “formulates a concept less rigid and more fluid” than those guarantees embodied in the Bill of Rights, although a state denial of a right protected in one of the first eight Amendments might “in certain circumstances” be a violation of due process. The question was rather “whether the constraint laid by the Amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment.”200 Examining the common–law rules, the English practice, and the state constitutions, laws and practices, the Court concluded that it was the “considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right essential to a fair trial.” Want of counsel in a particular case might result in a conviction lacking in fundamental fairness and so necessitate the interposition of constitutional restriction upon state practice, but this was not the general rule.201 Justice Black in dissent argued that the Fourteenth Amendment made the Sixth applicable to the States and required the appointment of counsel, but that even on the Court’s terms counsel was a fundamental right and appointment was required by due process.202

Over time the Court abandoned the “special circumstances” language of Powell v. Alabama203 when capital cases were involved and finally in Hamilton v. Alabama,204 held that in a capital case[p.1433]a defendant need make no showing of particularized need or of prejudice resulting from absence of counsel; henceforth, assistance of counsel was a constitutional requisite in capital cases. In non–capital cases, developments were such that Justice Harlan could assert that “the ‘special circumstances’ rule has continued to exist in form while its substance has been substantially and steadily eroded.”205 The rule was designed to afford some certainty in the determination of when failure to appoint counsel would result in a trial lacking in “fundamental fairness.” Generally, the Court developed three categories of prejudicial factors, often overlapping in individual cases, which required the furnishing of assistance of counsel. There were (1) the personal characteristics of the defendant which made it unlikely he could obtain an adequate defense of his own,206 (2) the technical complexity of the charges or of possible defenses to the charges,207 and (3) events occurring at trial that raised problems of prejudice.208 The last characteristic especially had been utilized by the Court to set aside convictions occurring in[p.1434]the absence of counsel,209 and the last case rejecting a claim of denial of assistance of counsel had been decided in 1950.210

Gideon v. Wainwright.—Against this background, a unanimous Court in Gideon v. Wainwright211 overruled Betts v. Brady and held “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.”212 Justice Black, a dissenter in the 1942 decision, asserted for the Court that Betts was an “abrupt break” with earlier precedents, citing Powell and Johnson v. Zerbst. Rejecting the Betts reasoning, the Court decided that the right to assistance of counsel is “fundamental” and the Fourteenth Amendment does make the right constitutionally required in state courts.213 The Court’s opinion in Gideon left unanswered the question whether the right to assistance of counsel was claimable by defendants charged with misdemeanors or serious misdemeanors as well as with felonies, and it was not until recently that the Court held that the right applies to any misdemeanor case in which imprisonment is imposed—that no person may be sentenced to jail who was convicted in the absence of counsel, unless he validly waived his right.214 The right to the assistance of counsel exists in juvenile proceedings also.215


Because the absence of counsel when a defendant is convicted or pleads guilty goes to the fairness of the proceedings and undermines the presumption of reliability that attaches to a judgment of a court, Gideon has been held fully retroactive, so that convictions obtained in the absence of counsel without a valid waiver are not only voidable,216 but also may not be subsequently used either to support guilt in a new trial or to enhance punishment upon a valid conviction.217


199 316 U.S. 455 (1942) .
200 Id. at 461–62, 465.
201 Id. at 471, 473.
202 Id. at 474 (joined by Justices Douglas and Murphy).
203 287 U.S. 45, 71 (1932) .
204 368 U.S. 52 (1961) . Earlier cases employing the “special circumstances” language were Williams v. Kaiser, 323 U.S. 471 (1945) ; Tompkins v. Missouri, 323 U.S. 485 (1945) ; Hawk v. Olson, 326 U.S. 271 (1945) ; De Meerleer v. Michigan, 329 U.S. 663 (1947) ; Marino v. Ragen, 332 U.S. 561 (1947) ; Haley v. Ohio, 332 U.S. 596 (1948) . Dicta appeared in several cases thereafter suggesting an absolute right to counsel in capital cases. Bute v. Illinois, 333 U.S. 640, 674 (1948) ; Uveges v. Pennsylvania, 335 U.S. 437, 441 (1948) . A state court decision finding a waiver of the right in a capital case was upheld in Carter v. Illinois, 329 U.S. 173 (1946) .
205 Gideon v. Wainwright, 372 U.S. 335, 350 (1963) .
206 Youth and immaturity (Moore v. Michigan, 355 U.S. 155 (1957) ; Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956) ; Uveges v. Pennsylvania, 335 U.S. 437 (1948) ; Wade v. Mayo, 334 U.S. 672 (1948) ; Marino v. Ragen, 332 U.S. 561 (1947) ; De Meerleer v. Michigan, 329 U.S. 663 (1947) ), inexperience (Moore v. Michigan, supra (limited education), Uveges v. Pennsylvania, supra), and insanity or mental abnormality (Massey v. Moore, 348 U.S. 105 (1954) ; Palmer v. Ashe, 342 U.S. 134 (1951) ), were commonly–cited characteristics of the defendant demonstrating the necessity for assistance of counsel.
207 Technicality of the crime charged (Moore v. Michigan, 355 U.S. 155 (1957) ; Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956) ; Williams v. Kaiser, 323 U.S. 471 (1945) ), or the technicality of a possible defense (Rice v. Olson, 324 U.S. 786 (1945) ; McNeal v. Culver, 365 U.S. 109 (1961) ), were commonly cited.
208 The deliberate or careless overreaching by the court or the prosecutor (Gibbs v. Burke, 337 U.S. 772 (1949) ; Townsend v. Burke, 334 U.S. 736 (1948) ; Palmer v. Ashe, 342 U.S. 134 (1951) ; White v. Ragen, 324 U.S. 760 (1945) ), prejudicial developments during the trial (Cash v. Culver, 358 U.S. 633 (1959) ; Gibbs v. Burke, supra), and questionable proceedings at sentencing (Townsend v. Burke, supra), were commonly cited.
209 Hudson v. North Carolina, 363 U.S. 697 (1960) , held that an unrepresented defendant had been prejudiced when his co–defendant’s counsel plead his client guilty in the presence of the jury, the applicable state rules to avoid prejudice in such situation were unclear, and the defendant in any event had taken no steps to protect himself. The case seemed to require reversal of any conviction when the record contained a prejudicial occurrence that under state law might have been prevented or ameliorated. Carnley v. Cochran, 369 U.S. 506 (1962) , reversed a conviction because the unrepresented defendant failed to follow some advantageous procedure that a lawyer might have utilized. Chewning v. Cunningham, 368 U.S. 443 (1962) , found that a lawyer might have developed several defenses and adopted several tactics to defeat a charge under a state recidivist statute, and that therefore the unrepresented defendant had been prejudiced.
210 Quicksal v. Michigan, 339 U.S. 660 (1950) . See also Canizio v. New York, 327 U.S. 82 (1946) ; Foster v. Illinois, 332 U.S. 134 (1947) ; Gayes v. New York, 332 U.S. 145 (1947) ; Bute v. Illinois, 333 U.S. 640 (1948) ; Gryger v. Burke, 334 U.S. 728 (1948) . Cf. White v. Ragen, 324 U.S. 760 (1945) .
211 372 U.S. 335 (1963) .
212 Id. at 344.
213 Id. at 342–43, 344. Justice Black, of course, believed the Fourteenth Amendment made applicable to the States all the provisions of the Bill of Rights, Adamson v. California, 332 U.S. 46, 71 (1947) , but for purposes of delivering the opinion of the Court followed the due process absorption doctrine. Justice Douglas, concurring, maintained the incorporation position. Gideon, supra, at 345. Justice Harlan concurred, objecting both to the Court’s manner of overruling Betts v. Brady and to the incorporation implications of the opinion. Id. at 349.
214 Scott v. Illinois, 440 U.S. 367 (1979) , adopted a rule of actual punishment and thus modified Argersinger v. Hamlin, 407 U.S. 25 (1972) , which had held counsel required if imprisonment were possible.
215 In re Gault, 387 U.S. 1 (1967) . See also Specht v. Patterson, 386 U.S. 605 (1967) .
216 Pickelsimer v. Wainwright, 375 U.S. 2 (1963) ; Doughty v. Maxwell, 376 U.S. 202 (1964) ; Kitchens v. Smith, 401 U.S. 847 (1971) . See Linkletter v. Walker, 381 U.S. 618, 639 (1965) .
217 Burgett v. Texas, 389 U.S. 109 (1967) (admission of record of prior counselless conviction at trial with instruction to jury to regard it only for purposes of determining sentence if it found defendant guilty but not to use it in considering guilt inherently prejudicial); United States v. Tucker, 404 U.S. 443 (1972) (error for sentencing judge in 1953 to have relied on two previous convictions at which defendant was without counsel); Loper v. Beto, 405 U.S. 473 (1972) (error to have permitted counseled defendant in 1947 trial to have his credibility impeached by introduction of prior uncounseled convictions in the 1930’s; Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist dissented); But see Nichols v. United States, 511 U.S. 738 (1994) (as Scott v. Illinois, 440 U.S. 367 (1979) provides that an uncounseled misdemeanor conviction is valid if defendant is not incarcerated, such a conviction may be used as the basis for penalty enhancement upon a subsequent conviction).
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