Right to counsel

Overview

The right to counsel refers to the right of a criminal defendant to have a lawyer assist in his defense, even if he cannot afford to pay for an attorney. The Sixth Amendment gives defendants the right to counsel in federal prosecutions. However, the right to counsel was not applied to state prosecutions for felony offenses until 1963 in Gideon v. Wainwright, 372 U.S. 335. This was done through the incorporation doctrine. However, for certain misdemeanors, there is not a guaranteed right to counsel. 

When Does The Right to Counsel Attach?

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 to counsel. In Brewer v. Williams, 430 U.S. 387 (1977), the Supreme Court held 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."
 
In United States v. Gouveia, 467 U.S. 180 (1984), the Court clarified that an inmate suspected of committing murder while in prison (i.e. murdering another inmate) lacks the right to counsel while in administrative segregation prior to indictment, because said segregation happens before the "initiation of adversary judicial proceedings."

In Moran v. Burbine, 475 U.S. 412, 431 (1986), the Court found that "a defendant's right to counsel was not violated when the police secured Miranda waivers and interviewed him without informing the defendant that t[he police] had been contacted by an attorney retained without his knowledge by his sister." Moran reinforced the holding in Gouveia by stating that "the first formal charging proceeding [is] the point at which the Sixth Amendment right to counsel initially attaches." Later in its decision, the Moran court used more open-ended language, holding that the Sixth Amendment "becomes applicable only when the government's role shifts from investigation to accusation. For it is only then that the assistance of one versed in the 'intricacies . . . of law,' is needed to assure that the prosecution's case encounters 'the crucible of meaningful adversarial testing.'" 

Effective Counsel

The Right to Effective Counsel in General

In addition, the Supreme Court has ruled that the right to counsel implies the right to an effective lawyer. To determine whether a court-appointed attorney has given effective counsel, courts will use the test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The Court established a two-prong test for whether a court-appointed attorney has given the proper amount of care to a court-appointed client:
  1. Error Prong
    1. whether counsel's performance is deficient under the circumstances, with performance being measured under the standard of prevailing professional norms
      1. this largely relies upon custom
  2. Prejudice Prong
    1. Whether the lawyer's supposed subpar conduct affected, with reasonable probability, the trial's outcome
      1. this relies upon but-for causation: "but for counsel's unprofessional errors, the results of the proceeding would have been different"

If the counsel fails this test, then the remedy is to have a new trial

The Conflict Between The Right to Effective Counsel and The Issue of Perjury

In Nix v. Whiteside, 475 U.S. 157 (1986), the Supreme Court found that an attorney in a criminal trial has a duty not to allow client to give perjured information. The ethical duty of an attorney not to allow perjured info supersedes a duty of zealous advocacy. The Supreme Court held that the Sixth Amendment right of a criminal defendant is not violated when an attorney refuses to cooperate with the defendant in presenting perjured evidence at trial.

The right to effective counsel typically entails that the attorney engaged in zealous advocacy for the defendant. However, there are exceptions to what attorneys may do for their defendants. In United States v. Shaffer Equip. Co., 11 F.3d 450, 1993 U.S. App. LEXIS 32040, 24 ELR 20706, 37 ERC (BNA) 2078 (4th Cir. W. Va. Dec. 9, 1993), the court found that when a client wants to engage in perjury, the client's attorney is required to compel the client not to commit perjury, even if the perjury can benefit the client's outcome. The court found that an attorney who does not do so has violated the attorney's duty of candor and good faith required to protect the integrity of the judicial process. 

Further, while most jurisdictions do not require an attorney to proceed with full representation of a client after the client attempts to commit perjury, some jurisdictions do require that the attorney stops representing the client, while other jurisdictions require that the attorney continues the representation. 

Further Reading

For more on the right to counsel, see this Harvard Law Review article, this University of Arkansas at Little Rock Law Review article, and this William & Mary Law Review article