Assistance of Counsel in the United States

A protection of the Sixth Amendment that entitles any accused person to have “assistance of counsel for his defense.” The assistance of counsel provision in its early construction was confined to preventing the government from keeping an accused from securing his or her own counsel. There was no expectation that counsel was required or would be provided in the instance of defendant indigency. The Supreme Court has gradually expanded the coverage of the counsel language, however, to require the appointment of defense counsel in all federal and state felony cases and finally in all misdemeanor cases involving the possibility of confinement to jail. An accused must be permitted to consult with an attorney before police interrogation and at all other “critical stages” in the criminal process. The accused may opt not to use the right to counsel, but if he or she does waive this right, it must be both informed and voluntary. It is up to the presiding judge to determine whether a defendant is reasonably requesting waiver. Juvenile delinquency proceedings also require the appointment of counsel.

See Also

Critical Stage (Criminal Process) Defense Attorney ( U.S.);

Public Defender (Criminal Process).

Analysis and Relevance

The assistance of counsel doctrine has developed around two basic points. First, the aid by counsel is invaluable to criminal cases, and due process requires the “guiding hand of counsel” for an accused charged with a criminal defense. Justice Black remarked in Gideon v. Wainwright (372 U.S. 335: 1963), that lawyers are necessities, not luxuries. Second, a defendant should not be denied assistance of counsel because he or she is indigent. Any person who is charged with a criminal offense and who is not able to afford counsel cannot have a fair trial unless counsel is provided by the state. The right to counsel has also been extended to various critical stages of the criminal process both before and after trial. A critical stage is defined as any step in the criminal process where the advice of counsel may be essential to protecting the rights of an accused person, or where the defendant’s overall fate is substantially affected. Currently recognized as critical stages are custodial interrogations, preliminary hearings, arraignments, post-indictment lineups, sentencing, and probation revocation hearings. Assistance of counsel is also a part of the civil trial process. While such assistance is not constitutionally mandated for civil trials, federal appellate courts have held that less strict adherence to evidentiary rules and less formal discovery compliance ought to be applied through trial courts when one of the parties is unrepresented by counsel. In the case of an unrepresented prisoner plaintiff in civil rights actions, counsel is often appointed by the trial judge to ensure fairness.

Notes and References

1. Definition of Assistance of Counsel from the American Law Dictionary, 1991, California