The Right to Counsel in the United States

This right to does not apply in all cases, and comes from a variety of sources. The Sixth Amendment gives defendants the right to counsel in federal prosecutions.

Advisory, by Way Of Counsel: Historical Definition

The verdict on a feigned issue is said to be advisory because the chancellor may, in his discretion, disregard it. [1]

History of the Right to Counsel Amendment and the Supreme Court Cases

The right to counsel under the Sixth Amendment to the U.S. Constitution was established as an obligation of state governments in Gideon v. Wainwright.

Clarence Earl Gideon was charged with breaking and entering with the intent to commit a misdemeanor, which is a felony under Florida law. At trial, Gideon appeared in court without an attorney. In open court, he asked the judge to appoint counsel for him because he could not afford an attorney. The trial judge denied Gideon’s request because Florida law only permitted appointment of counsel for poor defendants charged with capital offenses.

At trial, Gideon represented himself – he made an opening statement to the jury, cross-examined the prosecution’s witnesses, presented witnesses in his own defense, declined to testify himself, and made arguments emphasizing his innocence. Despite his efforts, the jury found Gideon guilty and he was sentenced to five years imprisonment.

“Mr. Gideon,” the judge said, “I am sorry, but I cannot appoint counsel to represent you in this case. Under the laws of the State of Florida, the only time the court can appoint counsel to represent a defendant is when that person is charged with a capital offense.”

Gideon sought relief from his conviction by filing a petition for writ of habeas corpus in the Florida Supreme Court. In his petition, Gideon challenged his conviction and sentence on the ground that the trial judge’s refusal to appoint counsel violated Gideon’s constitutional rights. The Florida Supreme Court denied Gideon’s petition.

Gideon next filed a handwritten petition in the Supreme Court of the United States. The Court agreed to hear the case to resolve the question of whether the right to counsel guaranteed under the Sixth Amendment of the Constitution applies to defendants in state court.

A prior decision of the Court’s, Betts v. Brady, 316 U.S. 455 (1942), held that the refusal to appoint counsel for an indigent defendant charged with a felony in state court did not necessarily violate the Due Process Clause of the Fourteenth Amendment. The Court granted Gideon’s petition for a writ of certiorari – that is, agreed to hear Gideon’s case and review the decision of the lower court – in order to determine whether Betts should be reconsidered.

The Supreme Court held that the Sixth Amendment’s guarantee of counsel is a fundamental right essential to a fair trial and, as such, applies the states through the Due Process Clause of the Fourteenth Amendment. In overturning Betts, Justice Black stated that “reason and reflection require us to recognize 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.” He further wrote that the “noble ideal” of “fair trials before impartial tribunals in which ever defendant stands equal before the law . . . cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

This expanded right to counsel was porsuit by the Warren Court, extending new protections to criminal defendants, in the 1966 Miranda v. Arizona Supreme Court case, which led to the practice of “Mirandizing” suspects.

Notes

This definition of Advisory, by Way Of Counsel is based on The Cyclopedic Law Dictionary.