One of the key essentials of a fair trial is availing legal representation to a defendant. This is embodied in the right to counsel. Basically, this right enables a defendant during proceedings to be aided by a lawyer at their own expense, or if unable to pay for one, at the state’s expense. The basis for this right is that a defendant may be greatly disadvantaged, especially in criminal proceedings, if they are deprived of legal representation. This right enables the defendant, through counsel, to take part actively in the pre-trial process and also the trial itself.
This right is so fundamental to the justice system that it is given constitutional recognition in many countries. Historically, this right originated in England where persons charged with minor criminal offences were allowed the right to counsel (Prentzas, 2007). The right however did not apply to felonies. Over time, people charged with felonies were allowed to hire counsels to represent them. This practice was later adopted in America due to British colonization. However, after independence the right was given more recognition especially in relation to criminal charges. Initially states where given the latitude to legislate on the right, however, after the civil war it was contained in the Constitution.
The Sixth Amendment provides that a defendant is entitled to the assistance of counsel in all criminal proceedings. Five distinct rights encompass this right: the right to selected counsel, the effectual aid of counsel, the right to counsel free of conflict, the right to self representation, and the right to counsel of one’s choice. In Bridges v. Wixon, it was held that the right to counsel only applied to criminal proceedings and could not be extended to civil proceedings even if they had penal aspects.
Traditionally, this right was fathomed to connote that a defendant could hire legal representation if they so chose and could afford it. The aspect of the state providing an attorney for a defendant who could not afford it did not arise. This however changed in 1932 pursuant to the Supreme Court decision in Powell v. Alabama. In the case, nine African-American men were charged with rape. In the proceedings, they were each allowed limited access to counsel, at the morning of the trial day; this essentially deprived them of the opportunity to plan a concrete defense.
After trial, eight of the defendants were sentenced to death. They later appealed to the Supreme Court of Alabama which dismissed their appeal holding that the trial was fair. They subsequently appealed to the U. S. Supreme Court on the basis that they had been deprived adequate legal representation. The court quashed their convictions holding that the defendants had not been able to attain the assistance of counsel during the trial. The court further established that in capital offences where the defendant is unable to afford a counsel, it is the duty of the court, either pursuant to request by the defendant or on its own motion, to appoint a counsel for the defendant.
This decision established that in all capital offences, i.e. where the death penalty is permitted, the defendant is entitled to counsel at state’s expense if they cannot afford one. It also introduced the ‘special circumstances test’; in circumstances where it was likely that the defendant cannot mount a good defense, it was incumbent upon the court to appoint counsel for the defendant. The court however limited this right to the federal government.
This was however changed in the case of Gideon v. Wainwright.
In the case, Clarence Earl Gideon had been charged with breaking and entering a poolroom in the state of Florida (Prentzas, 2007). At trial, he had requested the judge to appoint a counsel for him as he could not afford one. The judge stated that as per the law of Florida, he could only do so if the charge involved a capital offence. The trial proceeded with Gideon conducting his own defense, thus exercising the right to self representation. The jury later found him guilty and he was convicted. He appealed to the Florida Supreme Court arguing that his due process rights under the fourteenth Amendment had been violated. The Court dismissed his appeal holding that the trial court was right in declining to appoint an attorney for him.
Gideon later petitioned the U.S Supreme Court while in jail to review his case. The Supreme Court agreed to review the case and even appointed an attorney for him (Wroble, 2009). The Court later ruled that the denial of counsel was a violation of the Sixth Amendment and thus also a violation of the due process clause under the fourteenth Amendment. Essentially, the court established that in all criminal proceedings, the right to counsel means that a defendant is entitled to legal representation, whether they can afford it or not.
The right to counsel has also been intertwined with the right against self incrimination to require that a suspect has a right to a counsel before and during interrogation. This was established in the case of Miranda v. Arizona, where a conviction based on a confession made by defendant without legal representation was overturned. The court ruled that a suspect in criminal proceedings has a right to legal representation before, during and after interrogation. Further that the authorities (police) must inform the suspect of this right; hence the concept of Miranda warning (Siegel, 2010). The suspect therefore can hire an attorney or be provided with one at state’s expense.
In summary therefore, the right to counsel applies in all criminal proceedings. In this context not just the court proceedings but also the pre-trial processes leading to the trial. The suspect or defendant may hire a lawyer or the state may provide one. The authorities, that is, the court or the police, have a duty to inform the defendant or suspect. The purpose and role of the counsel is to ensure that their client participates to the fullest extent within the law in the proceedings. This is because without legal representation a layperson cannot participate to such extent. This may deprive them a fair trial which is the corner stone of the justice system.
Bridges v. Wixon, 326 U.S. 135 (1945)
Gideon v. Wainwright, 372, U.S. 335 (1963)
Miranda v. Arizona, 384 U.S. 436 (1966)
Powell v. Alabama, 287 U.S. 45 (1932)
Prentzas, G. S. (2007). Gideon v. Wainwright: The Right to Free Legal Counsel New York:
InfoBase Publishing Company. Print.
Siegel, L. J. (2010). Intoduction to Criminal Justice California: Wadsworth, Cengage
Wroble, L. (2009). The Right to Counsel: From Gideon v. Wainwright to Gideon’s Trumpet New
York: Enslow Publishers Inc. print.