Right to Counsel
Criminal defendants have a Sixth Amendment right to counsel and that right is guaranteed regardless of the defendant's ability to pay.
“Of all the rights than an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.” United States v. Cronic, 466 U.S. 648 (1984).
TYPES OF CASES IN WHICH AN INDIGENT DEFENDANT IS ENTITLED TO APPOINTMENT OF COUNSEL
The Sixth Amendment right to counsel is offense-specific. See Texas v. Cobb, 532 U.S. 162 (2001).
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Felony (Gideon v. Wainwright, 372 U.S. 335 (1963))
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Misdemeanor cases in which a jail sentence is imposed (active or suspended) (Argersinger v. Hamlin,407 U.S. 25 (1972); Alabama v. Shelton,535 U.S. 654 (2002); Scott v. Illinois, 440 U.S. 367 (1979))
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Appeals (Douglas v. California, 372 U.S. 353 (1963); Halbert v. Michigan, 545 U.S. 605 (2005))
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Juvenile Delinquency (In Re Gault, 387 U.S. 1 (1967))
WHEN THE SIXTH AMENDMENT RIGHT TO COUNSEL ATTACHES
The right to counsel “attaches” when formal judicial proceedings have begun. An accused is entitled to have counsel present and participating at all “critical stages” of the process. Rothgery v. Gillespie County, 554 U.S. 191 (2008).
Stages at which an accused is entitled to counsel at government expense:
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Live lineups and show ups upon the initiation of criminal charges (United States v. Wade, 388 U.S. 218 (1967))
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Interrogations following initiation of adversarial proceedings (Massiah v. United States, 377 U.S. 201 (1964))
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Preliminary hearings (Coleman v. Alabama, 399 U.S. 1 (1970))
Some states provide greater protections in both the scope of cases in which an accused is entitled to counsel at government expense and the point at which counsel is provided.
EFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment guarantees every criminal defendant adequate and effective representation. Strickland v. Washington, 466 U.S. 668, 685-86 (1984). Whether trial counsel has acted as an effective advocate must be measured by the purpose of this constitutional guarantee—that is, to ensure that the defendant's trial is a fair one, in which evidence is presented and subjected to adversarial testing, and which produces a reliable result. When the conduct of trial counsel falls below objective standards of reasonableness, counsel has not provided the assistance of counsel to which the defendant is entitled.
Whether an attorney’s performance is objectively unreasonable is “necessarily linked to the practice and expectations of the legal community: The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Padilla v. Kentucky, 559 U.S. 356, 366 (2010). Prevailing norms of practice as reflected in the American Bar Association (ABA) standards “are guides to determining what is reasonable.” Id.
Examples of professional standards include:
- a) a duty of confidentiality regarding information relevant to the client’s representation which duty continues after the representation ends;
- (b) a duty of loyalty toward the client;
- (c) a duty of candor toward the court and others, tempered by the duties of confidentiality and loyalty;
- (d) a duty to communicate and keep the client informed and advised of significant developments and potential options and outcomes;
- (e) a duty to be well-informed regarding the legal options and developments that can affect a client’s interests during a criminal representation;
- (f) a duty to continually evaluate the impact that each decision or action may have at later stages, including trial, sentencing, and post-conviction review;
- (g) a duty to be open to possible negotiated dispositions of the matter, including the possible benefits and disadvantages of cooperating with the prosecution;
- (h) a duty to consider the collateral consequences of decisions and actions, including but not limited to the collateral consequences of conviction.
ISSUES IMPACTING RIGHT TO COUNSEL
- Late access to counsel
- Inadequately funded public defense systems
- Attorney workload
- Lack of public defense infrastructure
WAIVER
As is the case with many other constitutional rights, the Sixth Amendment right to counsel can be waived. Faretta v. California, 422 U.S. 806 (1975). The question courts must answer is whether the decision to waive counsel is a knowing and intelligent one. Even in instances in which a defendant wishes to waive counsel, "[t]he Constitution does not forbid States from insisting upon representation by counsel for those competent enough to stand trial but who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Indiana v. Edwards, 554 U.S. 164 (2008).
Standard for waiving the right to counsel:
A waiver of the right to counsel, must be knowing, intelligently and voluntarily made. There is a presumption against waivers of constitutional rights and courts must make a meaningful inquiry before a waiver may be found. Johnson v. Zerbst, 304 U.S. 458 (1938), Iowa v. Tovar, 541 U.S. 77 (2004).
What factors may contribute to the waiver of the right to counsel?
- Custodial status of accused
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Community/court culture
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Method of advisement of one’s right to counsel
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Reputation of public defense providers
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Restrictive indigency standards
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Application and/or user fees
Statements made after waiver:
The Sixth Amendment right to counsel prohibits use of statements “deliberately elicited” from a defendant once the Sixth Amendment right attaches, absent a valid waiver. The central questions in this context are whether the incriminating statement was made after the Sixth Amendment right to counsel attached, whether the statement was “deliberately elicited,” and whether the defendant waived the right to counsel.
Brewer, 430 U.S. 387 (1977) (although defendant confessed after being informed of right to counsel and understood that right, his consistent prior reliance on counsel indicated lack of intent to “relinquish” Sixth Amendment right to counsel).
It is also important to note that the Supreme Court fundamentally altered the legal landscape in Montejo v. Louisiana, 556 U.S. 778 (2009), deciding that even if a defendant secures counsel at arraignment, that is not the same as a request for counsel. If there is a request for counsel, there's a presumption that the subsequent waiver is invalid or coerced, whereas if a defendant has merely secured counsel, no such presumption is necessary.
Emerging Issues and innovations regarding waiver of the right to counsel
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Is there a 6th Amendment right to counsel at initial bail hearings? Booth v. Galveston County (TX)
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Given the impact of collateral consequences, should the 6th Amendment right to counsel include any time a criminal conviction may result?
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How to conduct meaningful advisements of the right to counsel in large volume courts?
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How to conduct meaningful assessments of whether a waiver of counsel is knowing, intelligent, and voluntary?
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What role can/should technology play in the advisement process?
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Providing an accused the opportunity to consult with an attorney before deciding whether to waive their right to counsel
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Prohibiting juveniles from being able to waive their right to counsel unless they have consulted with an attorney.
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Know your rights educational programs to increase awareness and understanding
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Community organizations and peer navigators to assist individuals and their families in understanding and negotiating the court system.
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Eliminating jail a means to eliminate the right to counsel in misdemeanor cases.
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The lack of counsel in municipal and local courts.
Areas for Special Consideration:
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At Risk and Disadvantaged Populations (including those with mental illness, intellectual/developmental disabilities, and immigrant populations).
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May lack understanding of terms used by the court relating to rights and waivers.
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May lack understanding of the meaning of their rights regarding counsel
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Rural Communities
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Study in Texas revealed just 25% of misdemeanor defendants in rural counties received appointed counsel, compared to 39% in urban counties.
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May lack sufficient counsel within the community to provide representation.
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Cultural pressures to waive counsel
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Juveniles
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Factors that contribute to waivers:
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Adolescent Brain Development:
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Youth may lack an appreciation of future consequences, seeking short term gains such as a release from custody.
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Youth may overestimate their own ability to favorably resolve the situation.
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Youth have underdeveloped capacities to regulate emotions and curb impulsive behaviors, a barrier to strategic decision-making
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Fees and costs assessed to youth/their parents
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Parental pressures:
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Concerns about costs (Jones, 2004)
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Accept responsibility (Bishop, 2010)
If you are interested in obtaining Training and Technical Assistance (TTA) related to strengthening Sixth Amendment protections in your jurisdiction, click the link below.
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RESOURCES FOR RIGHT TO COUNSEL
ASSESSMENT TOOLS
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The Rhode Island Project: A Study of the Rhode Island Public Defender System and Attorney Workload Standards (NACDL & ABA, 2017)
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Indigent Defense Reforms in Brooklyn, New York: An Analysis of Mandatory Case Caps and Attorney Workloads (Center for Court Innovations, 2015)
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The Committee for Public Counsel Services Answering Gideon's Call Project Attorney Workload Assessment (CCI, 2014)
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The Missouri Project: A Study of the Missouri Public Defender System and Attorney Workload Standards (ABA, 2014)
CASES
Right to Counsel
- Rothgery v. Gillespie County, 554 U.S. 191 (2008)
- Halbert v. Michigan, 545 U.S. 605 (2005)
- Alabama v. Shelton, 535 U.S. 654 (2002)
- Texas v. Cobb, 532 U.S. 162 (2001)
- United States v. Cronic, 466 U.S. 648 (1984)
- Scott v. Illinois, 440 U.S. 367 (1979)
- United States v. Ash, 413 U.S. 300 (1973)
- Argersinger v. Hamlin,407 U.S. 25 (1972)
- Coleman v. Alabama, 399 U.S. 1 (1970)
- Gilbert v. California, 388 U.S. 263 (1967)
- In Re Gault, 387 U.S. 1 (1967)
- United States v. Wade, 388 U.S. 218 (1967)
- Massiah v. United States, 377 U.S. 201 (1964)
- Douglas v. California, 372 U.S. 353 (1963)
- Gideon v. Wainwright, 372 U.S. 335 (1963)
Effective Assistance of Counsel
- Padilla v. Kentucky, 559 U.S. 356 (2010)
- Strickland v. Washington, 466 U.S. 668 (1984).
Waiver
- Indiana v. Edwards, 554 U.S. 164 (2008)
- Iowa v. Tovar, 541 U.S. 77 (2004)
- Faretta v. California, 422 U.S. 806 (1975)
- Johnson v. Zerbst, 304 U.S. 458 (1938)
REPORTS AND STUDIES
Public Defense System Reports
- BJA’s Sixth Amendment Initiative: Strengthening the Constitutional Protections of the Accused A Report on Ten Sites Participating in Strategic Planning (CCI, 2021).
- Right to Counsel National Campaign: Stakeholder Engagement Report (R2C, 2020)
- What is the State of Empirical Research on Indigent Defense Nationwide? A Brief Overview and Suggestions for Future Research (Nadine Frederique, Patricia Joseph, & R. Christopher C. Hild, 2015)
- The ABA "Ten Principles of a Public Defense Delivery System": How Close Are We to Being Able to Put Them into Practice? (Caroline S. Cooper, 2015)
- The Trials of Indigent Defense: Type of Counsel and Case Outcomes in Felony Jury (Erin York Cornwell, 2015)
- What Makes Lawyers Happy? Transcending the Anecdotes with Data from 6200 Lawyers (Lawrence S. Krieger & Kennon M. Sheldon, 2015)
- How Do We "Do Data" in Public Defense? (Andrew Lucas Blaize Davies, 2015)
- Indigent Defense Services in the United States (US Bureau of Justice Statistics, 2014)
- State Government Indigent Defense Expenditures (US Bureau of Justice Statistics, 2014)
- Map of Public Defense Funding, Delivery Models, State Independence, and Workload Standards (Gideon at 50, 2013)
- Right to Counsel Services in the 50 States: An Indigent Defense Reference Guide for Policymakers (David Carroll, 2017)
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Spreading Justice to Rural Montana: Rurality's Impacts on Supply and Demand for Legal Services in Montana
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Public Defender Primer
LAW REVIEW ARTICLES
- Hoag, Alexis, Black on Black Representation (February 13, 2021). New York University Law Review, Vol. 96, 2021.
- The Sixth Amendment Façade: The Racial Evolution of the Right to Counsel, Shaun Ossei-Owuwu, University of Pennsylvania Law Review, 2019.
- Sixth Amendment Center and The Defender Initiative, "The Right to Counsel in Mississippi: Evaluation of Adult Felony Trial Level Indigent Defense Services" (2018). Fred T. Korematsu Center for Law and Equality. 90.
- The Right To Counsel But Not The Presence of Counsel: A Survey of State Criminal Procedures For Pre-Trial Release, John P. Gross, Fla. L. Rev., 69 Fla. L. Rev. 831 (2017).
- Steven J. Mulroy, The Bright Line's Dark Side: Pre-Charge Attachment of the Sixth Amendment Right to Counsel, 92 Wash. L. Rev. 213 (2017).
- Veronica J. Finkelstein, Better Not Call Saul: The Impact of Criminal Attorneys on their Clients' Sixth Amendment Right to Effective Assistance of Counsel, 83 U. Cin. L. Rev. 1215 (2015)
- Race, Paternalism, and the Right to Counsel, Kristin Henning, 54 AM. Crim. L. Rev, 2017.
- Gideon Skepticism, Alexandra Natapoff, Washington and Lee Law Review, 2013.
- John D. King, Beyond "Life and Liberty": The Evolving Right to Counsel, 48 Harv. C.R.-C.L. L. Rev. 1 (2013).
- Michael C. Mims, A Trap for the Unwary: The Sixth Amendment Right to Counsel After Montejo v. Louisiana, 71 La. L. Rev. (2010)
- Melissa Minas, Blurring the Line: Impact of Offense-Specific Sixth Amendment Right to Counsel, 93 J. Crim. L. & Criminology 195 (2002-2003).
NEWS ARTICLES
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Unequal Before the Law, By Matt Clair, The Nation, December 14, 2020.
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The Sixth Amendment Doesn't Shut Down When The Government Does, By Kira Lerner, The Appeal, January 24, 2019.
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When the Money Runs out for Public Defense, What Happens Next?, By Oliver Laughland, The Marshall Project, September 7, 2016.
OTHER LEGAL SOURCES
- American Bar Association (ABA) standards
- DC’S YOUNG MEN EMERGING UNIT: A STORY OF REFORM AND LESSONS LEARNED FROM THE FRONT LINES, Justice Policy Institute, September 2020.
BLOGS, VIDEOS, WEBINARS, PODCASTS
Introduction to the Right to Counsel
Introduction to the Sixth Amendment's Right to Counsel
Presented by the National Association of Criminal Defense Lawyers (NACDL)
OPEN MIKE: Right to Fair Trial?
Right to Fair Trial? National Expert Exposes Serious Concerns in Courts All Across America
David Carroll is a nationally recognized expert in court system reform and the delivery of good counsel services. He works with the Sixth Amendment Center to ensure that people accused of crimes have access to adequate legal representation. In this episode of Open Mike, David tells Mike about the Michigan Justice system’s recent improvements after a report that his organization made on the state. They also discuss the inherent problem of bail and how court-appointed lawyers are too overworked to provide good counsel. Tune in to this insightful episode to learn about the problems with our criminal justice system and what needs to be done to fix it.
Sixth Amendment
A selected lecture from "Introduction to Key Constitutional Concepts and Supreme Court Cases" with University of Pennsylvania law professor Kermit Roosevelt III.
In Practice
Check out this episode of "In Practice" with host Rob Wolf and members of the Center for Court Innovation's Criminal Defense Initiatives team, Lisa Vavonese, deputy director, and Liz Ling, coordinator in which they discuss the use of video conferencing at initial appearances.
COVID-19 Issue Spotting and Record Preservation
The Michigan State Appellate Defender Office and the staff to the Michigan Indigent Defense Commission developed this important training for Michigan criminal defense attorneys during the COVID-19 pandemic. Co-Presenters for this session: Katherine Marcuz, Assistant Defender, State Appellate Defender Office Marla McCowan, Director of Training, Outreach & Support, Michigan Indigent Defense Commission Michael Mittlestat, Deputy Director, State Appellate Defender Office