The right to counsel is the right for a criminal defendant to have representation by an attorney in assistance of their defense, regardless of their ability to pay. The right to counsel stems from the Sixth Amendment of the United States Constitution, specifically for prosecutions in federal courts. The right to counsel for prosecutions within state courts did not apply to criminal defendants for felony defendants until 1963. In Gideon v. Wainwright, the Supreme Court of the United States extended the right to counsel to state courts as well, invoking the incorporation doctrine. However, note that an exception exists for the right to counsel for certain categories of misdemeanors. Moreover, the right to counsel provides for the criminal defendant’s right to an attorney, not a right to a specific attorney that the criminal defendant would like to represent them.
The Supreme Court construes the right to counsel as the right to an effective lawyer. The court relies on the Strickland v. Washington test when determining whether the court-appointed counsel is indeed an effective lawyer. The Strickland test has two prongs: the error prong and the prejudice prong. The two prongs for the Strickland test look into whether the court-appointed lawyer has provided an appropriate amount of care to the criminal defendant.
- Error Prong: Whether the performance of the court-appointed attorney is deemed insufficient under the circumstances. The court measures the performance of the court-appointed attorney by the standard of prevailing professional norms, which mostly depends on the custom of the profession.
- Prejudice Prong: Whether the court-appointed attorney’s insufficient performance affected the trial’s outcome with reasonable certainty. The court measures the performance’s effect on the outcome of the trial by but-for causation (but-for the counsel’s unprofessional deficiencies, the results of the trial would have been different).
If the court determines that the court-appointed counsel has failed the test, then the court provides the remedy of opening a new trial.
Brewer v. Williams raised a controversy within the right to counsel. Specifically, the issue was when the defendant gained the right to counsel in the process of criminal proceedings. The Supreme Court held that the defendant attains the right to a court-appointed attorney when “at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or arraignment.” The Supreme Court further delineated the timing of when the criminal defendant gains the right to counsel in United States v. Gouveia. In Gouveia, the inmate was under suspicion that he murdered another inmate while in prison. The Court determined that Gouveia lacked the right to counsel prior to indictment and during administrative segregation in preparation for the proper indictment because the said segregation occurred before the initiation of the adversary judicial proceedings.
The Supreme Court also 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 v. Burbine). The court in Moran v. Burbine bolstered the Gouveia decision by claiming that "the first formal charging proceeding [is] the point at which the Sixth Amendment right to counsel initially attaches." The Moran court explained in more plain language 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."
Another issue concerning the right to counsel involves the conflict between the right to effective counsel and the problem of perjury. The Supreme Court held that the criminal defendant’s lawyer must not allow the defendant to give perjured information in Nix v. Whiteside. The reasoning behind the ruling is that the duty of earnest advocacy for the defendant is superseded by the duty of the lawyer to not allow perjury. The Supreme Court reasoned that the criminal defendant’s Sixth Amendment rights are not violated when the lawyer refuses to present perjured evidence during a proceeding, even for the benefit of the defendant. United States v. Shaffer Equip. Co. augmented the Nix court’s decision by claiming that the attorney of the client must compel the client to not commit perjury even to the client’s detriment when the client suggests engaging in perjury. Furthermore, the court ruled that the attorney who does engage in perjury, has violated the duty of candor and good faith even if the perjury was solely for the benefit of the client. The specifics of the duty against perjury differ from jurisdiction to jurisdiction. For example, some jurisdictions require that the attorney stop representing the client altogether after learning about the client’s attempt at perjury, while other jurisdictions do not require a full halt on legal representation after learning about the client’s intent to perjure.
[Last updated in March of 2024 by the Wex Definitions Team]