Right to Counsel
| Author | Jeffrey Wilson |
| Pages | 507-511 |
Page 507
During the colonial period and the early years of the Republic the practice in the United States was varied with respect to providing counsel to suspects in criminal cases. The practice varied from the English method, where no counsel was provided to defendants of felony charges, but counsel was made available for defendants of misdemeanor charges. Rules in a few states allowed for the appointment of counsel where defendants could not afford to retain a lawyer. The Sixth Amendment to the U.S. Constitution states: "in all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense." At the time the Sixth Amendment was ratified, Congress enacted two laws that appeared to indicate an understanding that the Sixth Amendment guarantee was limited: counsel would not be denied to those who wished for and could afford a lawyer. Much later—in 1930s—the Supreme Court began to expand the clause to its present scope.
Police officers ask questions of victims, witnesses, and suspects. If individuals feel that they are suspects in a criminal investigation or even that they could later be considered a suspect, they should speak with a lawyer before they speak with law enforcement officers. What they say to their lawyer is confidential and cannot be used against them. However, what they say to the police can be used against them, even if there is no recorded or written record of that conversation.
Individuals can always inform the police officer that they wish to speak with a lawyer before they answer any questions. If they are in custody (have been arrested or otherwise detained), the police must stop their questioning and they will be given an opportunity to speak with a lawyer. The police may return and begin to ask them questions again after a reasonable amount of time. If they have not yet spoken with a lawyer when the police return to question them, they may continue to refuse to answer any questions until they have obtained legal assistance.
The Sixth Amendment guarantees the right to legal counsel at all significant stages of a criminal proceeding. This right is so important that there is an associated right given to people who are unable to pay for legal assistance to have counsel appointed and paid for by the government. The federal criminal jus-
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tice system and all states have procedures for appointing counsel for indigent defendants. The Sixth Amendment right to counsel has been extended to the following:
the interrogation phase of a criminal investigation
the trial itself
sentencing
at least an initial appeal of any conviction
If individuals are arrested in the United States they have a range of rights that give them certain protections, even if they are not a citizen of the United States. These rights include the following:
A trial by a jury (in most cases)
The jury to hear all of the witnesses and see all of the evidence
Presence at the trial and while the jury is hearing the case
The opportunity to see, hear, and confront the witnesses presenting the case against them
The opportunity to call witnesses and to have the court issue subpoenas to compel the witnesses to appear
The chance to testify themselves should they choose to do so
The option to refuse to testify
Access to a criminal defense lawyer. If individuals cannot afford to hire their own criminal defense lawyer, a public defender will represent them. This lawyer can act on their behalf before, during, and after the trial
The right to cross-examine the witnesses giving testimony against them
The right to compel the state to prove its case against them beyond a reasonable doubt.
A judge will appoint an attorney for an indigent defendant; this...
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