6.1 Constitutional Basis: the Sixth Amendment

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

6.1 Constitutional Basis: The Sixth Amendment

The Sixth Amendment provides in material part that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."¹ The right to counsel has always stood for the proposition that a criminal defendant has the right to the assistance that he has retained himself.² "Historically and in practice, in our country at least,³ [a hearing] has always included the right to the aid of counsel when desired and provided by the party asserting the right."⁴ Furthermore, for many years it has been undisputed that the Sixth Amendment provides all federal criminal defendants the right to appointed counsel at trial.⁵

While the Supreme Court sometimes required counsel for some defendants in state criminal proceedings—based on due process considerations—it was not until 1963 that the Sixth Amendment's right to counsel was incorporated as such to apply against the states through the Fourteenth Amendment's Due Process Clause. Prior to this time, Sixth Amendment law was found to mandate lawyers in state criminal cases only where the defendant's due process rights would be violated otherwise. This principle was characterized, most notably, by the so-called special circumstances doctrine requiring counsel where the defendant's inexperience or ignorance, the hostile environment, or the complex nature of the charges necessitated a lawyer for a fair trial.⁶

The most famous and important case in which a state criminal conviction was reversed for failure to grant trial counsel is one sadly well known in American jurisprudence. Powell v. Alabama⁷ is often referred to as "the Scottsboro case." There, nine black minors were accused of raping two white girls on a train passing through Alabama. The defendants were taken to Scottsboro and tried amidst a "tense, hostile, and excited public sentiment."⁸ According to the Court, the defendants were young, poor, ignorant, illiterate nonresidents; they were tried without an attorney. The Court held that the defendants' due process rights were violated by denying them assigned counsel based on the factors present in their situation.⁹ The sweeping language in the Court's opinion suggested, though, that the right to counsel might be of a fundamental nature in other criminal prosecutions.

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated

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