Your Right To Counsel Explained

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Having a criminal defense attorney is essential to, and a right for, any criminal defendant.  But were exactly does this right come from?  The Sixth Amendment of the United States Constitution provides that, “[I]n all criminal prosecutions, the accused shall enjoy the right to have Assistance of Counsel for his defence.”[1]  However, this right is not as simple as it sounds.  To understand the complex application of the right to counsel, one must first understand the history of the Sixth Amendment and its application.

Over the years, the Supreme Court of the United States has held that the right to counsel is not guaranteed in discretionary appeals,[2]post-conviction relief hearings,[3]or in certain civil contempt proceedings.[4]  In addition to the aforementioned cases, the Supreme Court shocked the legal profession in a 1942 Maryland case.[5]  In this case, a criminal defendant was denied the assistance of counsel because his sentence did not carry a death sentence and the Supreme Court agreed.  In the years succeeding this ruling, scholars and attorneys attempted to get the Supreme Court to change its mind, and thus its application of the Sixth Amendment.

Failing to get the Supreme Court of the United States to change its mind should come as no surprise, and is in fact, extremely rare. However, in 1963, the Supreme Court of the United States changed its mind in the landmark case of Gideon v. Wainwright.  In this case, the Supreme Court of the United States issued its famous ruling on the Sixth Amendment stating, “reason and reflection, require us to recognize that . . . 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. The Supreme Court further held, that the Sixth Amendment right to counsel was also made obligatory to the States by way of the Fourteenth Amendment.  It should be noted, however, that this ruling only applied to felony cases.

While the decision in Gideon, was a huge victory in the practice area of criminal law, this decision left two questions unanswered by the states: (1) Who is going to provide the assistance of counsel, and (2) Who is going to pay for it.  Prior to the introduction of public defense, judges relied on the professional obligations of pro bono services for federal criminal defendants.  It was not until the Criminal Justice Act of 1964, that Congress established a law requiring compensation for appointed counsel.

Today, public defense varies from State to State.  Bringing it home to Georgia, there is a non-profit organization that controls the public defense services of this State.  Also, individual counties are permitted to “opt-out” of this public defender service and provide public defense in any of a number of ways. For example, in Gwinnett County, attorneys are rotated from a list of volunteers provided to the County’s Bar Association.  In Cobb County, most attorneys enter into a flat fee contract with the county to take on an unlimited number of cases at a fixed rate.

In addition to its limited application, the Supreme Court of the United States has ruled that the Sixth Amendment right to counsel is only applicable at the “critical stages” of a criminal case.  A critical stage is generally defined as any proceeding in a criminal process, formal or informal, that will help the accused cope with the legal problems, make an important decision, or meet his adversary.”[6]  Critical stages usually occur during the point of a criminal trial in which the government (by way of the prosecuting attorney) has committed to prosecuting a particular defendant for a particular crime(s).  It is important to understand that the investigation of a crime, leading up to an arrest are not critical stages of the criminal process, and therefore, a defendant at this time is not entitled to assistance of counsel..

Also, under the Sixth Amendment, attorneys are required to provide a certain level of assistance.  The Supreme Court has determined that the appropriate level is “effective.”  In the unfortunate event a defendant believes he or she has received ineffective assistance of counsel, he must show that in addition to the ineffective assistance of counsel, his trial would have fared differently had he received effective assistance of counsel.  Success could result in a new trial.

The Constitution of the United States, in addition to each individual State Constitution provides for the assistance of counsel in criminal cases. For example, in Georgia, all defendants are afforded the privilege and benefit of counsel (emphasis added).[7]  Every criminal defendant should take advantage of this opportunity.  If you are facing criminal charges, trust our attorney’s at Bixon Law.  We will not only provide you the assistance of counsel you deserve, but our experienced criminal defense attorneys offer nothing less than effective assistance of counsel.  Contact us today to see how we can help—it is to your benefit!

[1]U.S. Const.amend. VI

[2]Ross v. Moffitt, 417 US 600 (1974)

[3]Murray v. Giarratano, 492 US 1 (1989)

[4]Turner v. Rogers, 564 US 431 (2011)

[5]Betts v. Brady, 316 US 455 (1942)

[6]United States v. Wade, 388 U.S. 218, 226 (1967).

[7]G.A. Const.art I. § I, ¶ XIV.


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