34-f-4 Right of Access to Counsel

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

34-F-4. Right of Access to Counsel

Under the Sixth Amendment of the U.S. Constitution, you have a right to counsel in the preparation of your defense. (See Part C of this Chapter for a broader discussion of your right to counsel.) This right includes the right to meet with and communicate with your attorney while you are detained awaiting trial. If the conditions of your detention interfere with your ability to meet with your attorney or to communicate in private to discuss your case, then they may violate your Sixth Amendment right to counsel.²⁴²

Pretrial detainees may have a greater right of access to counsel than convicted prisoners. The Supreme Court in Maine v. Moulton recognized that the right to counsel is especially important during the period before trial.²⁴³Moulton did not involve a pretrial detainee,²⁴⁴ but it has been cited by some lower courts as support for the proposition that courts should be especially protective of your right to counsel while you are a pretrial detainee.²⁴⁵ As one court stated, when pretrial detainees are kept from effectively communicating with their attorneys, "the ultimate fairness of their eventual trial can be compromised."²⁴⁶

Prison regulations that make it difficult for your attorney to meet and communicate with you may violate your Sixth Amendment right to counsel. Regulations and conditions found to interfere with this right include limits on detainees' telephone conversations with attorneys,²⁴⁷ inadequate privacy during such telephone discussions,²⁴⁸ inadequate or inadequately private space in which to meet with your attorneys,²⁴⁹ and prison regulations that create substantial and unpredictable delays when your attorneys come to meet with you.²⁵⁰ A transfer from one detention facility to another may also violate your right to counsel, if the transfer is to a place so distant that your access to counsel is impaired.²⁵¹

The Sixth Amendment right to counsel guarantees you the right to have access to your attorney. It may also provide you with a right to access a law library.²⁵² In particular, under Faretta v. California,²⁵³ prisoners who wish to proceed "pro se " (advocating for yourself before the court) may have a right to a law library. However, not every circuit recognizes that right.²⁵⁴ At least one court has held that inadequate access to a law...