Assistance of Counsel Clause

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The Assistance of Counsel Clause of the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defence." [1]

Contents

The assistance of counsel clause includes five distinct rights: the right to counsel of choice, the right to appointed counsel, the right to conflict-free counsel, the effective assistance of counsel, and the right to represent oneself pro se .

Attachment at critical stages

As stated in Brewer v. Williams , 430 U.S. 387 (1977), the right to counsel "means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, 'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" [2] Brewer goes on to conclude that once adversarial proceedings have begun against a defendant, he has a right to legal representation when the government interrogates him [3] and that when a defendant is arrested, "arraigned on [an arrest] warrant before a judge," and "committed by the court to confinement," "[t]here can be no doubt that judicial proceedings ha[ve] been initiated."

Individuals subject to grand jury proceedings do not have a Sixth Amendment right to counsel because grand juries are not considered by the U.S. Supreme Court to be criminal proceedings which trigger the protections of that constitutional protection. [4]

Choice of counsel

Subject to considerations such as conflicts of interest, [5] scheduling, counsel's authorization to practice law in the jurisdiction, and counsel's willingness to represent the defendant (whether pro bono or for a fee), [6] criminal defendants have a right to be represented by counsel of their choice. The remedy for erroneous deprivation of first choice counsel is automatic reversal. [7]

Conflict free counsel

Whether counsel is retained or appointed, the defendant has a right to counsel without a conflict of interest. If an actual conflict of interest is present, and that conflict results in any adverse effect on the representation, the result is automatic reversal. [8] The general rule is that conflicts can be knowingly and intelligently waived, [9] but some conflicts are un-waiveable. [10]

Appointment of counsel

In Powell v. Alabama , the Supreme Court ruled that "in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him." [11] In Johnson v. Zerbst , the Supreme Court ruled that in all federal cases, counsel would have to be appointed for defendants who were too poor to hire their own. [12] However, in Betts v. Brady , the Court declined to extend this requirement to the state courts under the Fourteenth Amendment unless the defendant demonstrated "special circumstances" requiring the assistance of counsel. [13]

In 1961, the Court extended the rule that applied in federal courts to state courts. It held in Hamilton v. Alabama that counsel had to be provided at no expense to defendants in capital cases when they so requested, even if there was no "ignorance, feeble mindedness, illiteracy, or the like." [14] Gideon v. Wainwright explicitly overruled Betts v. Brady and found that counsel must be provided to indigent defendants in all felony cases. [15] Under Argersinger v. Hamlin , counsel must be appointed in any case resulting in a sentence of actual imprisonment. [16] However, in Scott v. Illinois , the Court ruled that counsel did not need to be appointed if the defendant was not sentenced to any imprisonment. [17]

In the United States, while the right to counsel in trials by the federal government was recognized by the US Bill of Rights, the affirmation that this right extended to cases tried by state courts (i.e. most criminal trials, including for crimes such as murder in most cases) came much later. While some state supreme courts affirmed this right during the 19th century, it was only in the 1963 decision Gideon v. Wainwright that the Supreme Court affirmed the right for defendants to have counsel in felony trials.

Ineffective assistance of counsel

The constitutional right to counsel necessarily encompasses a right to effective counsel. [18] Mere formal appointment of counsel does not satisfy Sixth Amendment's constitutional guarantees; [19] instead, a criminal defendant is entitled to reasonably competent representation. [20]

In Strickland v. Washington (1984), the Court held that, on collateral review, a defendant may obtain relief if the defendant demonstrates both (1) that defense counsel's performance fell below an objective standard of reasonableness (the "performance prong") and (2) that, but for the deficient performance, there is a reasonable probability that the result of the proceeding would have been different (the "prejudice prong"). [21]

To satisfy the prejudice prong of Strickland, a defendant who pleads guilty must show that, but for counsel's deficient performance, he or she would not have pleaded guilty. [22] In Padilla v. Kentucky (2010), the Court held that counsel's failure to inform an alien pleading guilty of the risk of deportation fell below the objective standard of the performance prong of Strickland and permitted an alien who would not have pleaded guilty but for such failure to withdraw his guilty plea. [23]

Self-representation

A criminal defendant may represent himself, unless a court deems the defendant to be incompetent to waive the right to counsel.

In Faretta v. California , 422 U.S. 806 (1975), the Supreme Court recognized a defendant's right to pro se representation. However, under Godinez v. Moran , 509 U.S. 389 (1993), a court can require a defendant to be represented by counsel if it believes the accused less than fully competent to adequately proceed without counsel. In Martinez v. California Court of Appeals , 528 U.S. 152 (2000), the Supreme Court ruled the right to pro se representation did not apply to appellate courts. In Indiana v. Edwards , 554 U.S. 164 (2008), the Court ruled that a criminal defendant could be simultaneously competent to stand trial and yet not competent to represent himself. The Court ultimately concluded that, in light of these rules, a state may require an otherwise competent criminal defendant to proceed to trial with the assistance of counsel. The standard for competency to stand trial presumes that the defendant will have a lawyer to assist him at that trial. Implicit therefore in the Dusky rule is the idea that the standard for competency to stand trial must be lower than the standard for competency to represent oneself. The right to represent oneself at trial is qualified by the trial court's interest in preserving courtroom decorum and promoting the orderly presentation of evidence, questioning of witnesses, and advancement of legal argument. For the Court, it was "common sense" that a defendant's mental illness might impair his ability to accomplish these tasks—tasks that any lawyer must if he is to press his client's case effectively. "A right of self-representation at trial will not affirm the dignity of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel."

In Bounds v. Smith , 430 U.S. 817 (1977), the Supreme Court held that the constitutional right of "meaningful access to the courts" can be satisfied by counsel or access to legal materials. Bounds has been interpreted by several United States courts of appeals to mean a pro se defendant does not have a constitutional right to access a prison law library to research his defense when access to the courts has been provided through appointed counsel. [24]

Similar state-law provisions

In Louisiana, the state Supreme Court has discussed at what point the right to counsel attached under the state and federal constitutions in State v. Hattaway, 621 So. 2d 796 (La. 1993). In this case, the Court repeated the Brewer condition that the Sixth Amendment right to counsel attaches after the commencement of adverse judicial criminal proceedings, and that the right exists only during pre-trial confrontations that can be considered "critical stages" during adverse judicial criminal proceedings. 621 So.2d at 801. No clear definition of a critical stage was given, but interrogation of a defendant by police officers was offered as an example of a critical stage in that case.

Some states extend the right to counsel to all matters where a defendant's liberty interest is threatened. The New Jersey Supreme Court unanimously held that, regardless of whether the proceeding is labeled as civil, criminal, or administrative, if a defendant faces a loss of liberty, she or he is entitled to appointed counsel if indigent. Anne Pasqua, et al. v. Hon. Gerald J. Council, et al., 186 N.J. 127 (2006) (March 2006).

Application to state offenses

Until 1963, the right to counsel only applied to criminal defendants accused of federal crimes. However, in Gideon v. Wainwright , the Supreme Court held that the right to counsel also applied to state criminal defendants. [25]

Related Research Articles

<span class="mw-page-title-main">Sixth Amendment to the United States Constitution</span> 1791 amendment enumerating rights related to criminal prosecutions

The Sixth Amendment to the United States Constitution sets forth rights related to criminal prosecutions. It was ratified in 1791 as part of the United States Bill of Rights. The Supreme Court has applied all but one of this amendment's protections to the states through the Due Process Clause of the Fourteenth Amendment.

Gideon v. Wainwright, 372 U.S. 335 (1963), was a landmark U.S. Supreme Court decision in which the Court ruled that the Sixth Amendment of the U.S. Constitution requires U.S. states to provide attorneys to criminal defendants who are unable to afford their own. The case extended the right to counsel, which had been found under the Fifth and Sixth Amendments to impose requirements on the federal government, by imposing those requirements upon the states as well.

In United States law, ineffective assistance of counsel (IAC) is a claim raised by a convicted criminal defendant asserting that the defendant's legal counsel performed so ineffectively that it deprived the defendant of the constitutional right guaranteed by the Assistance of Counsel Clause of the Sixth Amendment to the United States Constitution. Ineffectiveness claims may only be brought where the defendant had the right to counsel, ordinarily during the critical stages of a prosecution.

In criminal law, the right to counsel means a defendant has a legal right to have the assistance of counsel and, if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal expenses. The right to counsel is generally regarded as a constituent of the right to a fair trial. Historically, however, not all countries have always recognized the right to counsel. The right is often included in national constitutions. Of the 194 constitutions currently in force, 153 have language to this effect.

Johnson v. Zerbst, 304 U.S. 458 (1938), was a United States Supreme Court case, in which the petitioner, Johnson, had been convicted in federal court of feloniously possessing, uttering, and passing counterfeit money in a trial where he had not been represented by an attorney but instead by himself. Johnson filed for habeas corpus relief, claiming that his Sixth Amendment right to counsel had been violated, but he was denied by both a federal district court and the court of appeals.

Massiah v. United States, 377 U.S. 201 (1964), was a case in which the Supreme Court of the United States held that the Sixth Amendment to the United States Constitution prohibits the government from eliciting statements from the defendant about themselves after the point that the Sixth Amendment right to counsel attaches.

Faretta v. California, 422 U.S. 806 (1975), was a case in which the Supreme Court of the United States held that criminal defendants have a constitutional right to refuse counsel and represent themselves in state criminal proceedings.

Strickland v. Washington, 466 U.S. 668 (1984), was a landmark Supreme Court case that established the standard for determining when a criminal defendant's Sixth Amendment right to counsel is violated by that counsel's inadequate performance.

Wiggins v. Smith, 539 U.S. 510 (2003), is a case in which the United States Supreme Court spelled out standards for "effectiveness" in the constitutional right to legal counsel guaranteed by the Sixth Amendment. Previously the court had determined that the Sixth Amendment included the right to "effective assistance" of legal counsel, but it did not specify what constitutes "effective", thus leaving the standards for effectiveness vague. In Wiggins v. Smith, the court set forth the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases Guideline 11.8.6.(1989), as a specific guideline by which to measure effectiveness and competence of legal counsel.

Indiana v. Edwards, 554 U.S. 164 (2008), was a United States Supreme Court case in which the Court held that the standard for competency to stand trial was not linked to the standard for competency to represent oneself.

Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010), is a case in which the United States Supreme Court decided that criminal defense attorneys must advise noncitizen clients about the deportation risks of a guilty plea. The case extended the Supreme Court's prior decisions on criminal defendants' Sixth Amendment right to counsel to immigration consequences.

<span class="mw-page-title-main">United States constitutional criminal procedure</span> United States constitutional criminal procedure

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A Marsden motion is the only means by which a criminal defendant can fire a court-appointed attorney or communicate directly with a judge in a California state court. It is based on a defendant's claim that the attorney is providing ineffective assistance or has a conflict with the defendant. The name comes from the case People v. Marsden. A defendant is required to know to make a challenge of ineffective assistance of counsel, and make one, or the claim of ineffective assistance of counsel or the issue cannot be raised on appeal. There is no requirement to notify a defendant of such a requirement.

Glasser v. United States, 315 U.S. 60 (1942), was a landmark decision of the US Supreme Court on two issues of constitutional criminal procedure. Glasser was the first Supreme Court decision to hold that the Assistance of Counsel Clause of the Sixth Amendment required the reversal of a criminal defendant's conviction if his lawyer's representation of him was limited by a conflict of interest.

In the United States, a public defender is a lawyer appointed by the courts and provided by the state or federal governments to represent and advise those who cannot afford to hire a private attorney. Public defenders are full-time attorneys employed by the state or federal governments. The public defender program is one of several types of criminal legal aid in the United States.

Pointer v. Texas, 380 U.S. 400 (1965), was a decision by the United States Supreme Court involving the application of the right of to confront accusers in state court proceedings. The Sixth Amendment in the Bill of Rights states that, in criminal prosecutions, the defendant has a right "...to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor..." In this case, a person arrested in Texas for robbery was deprived of the ability to cross-examine a witness when the lower court allowed the introduction of a transcript of that witness's earlier testimony at a preliminary proceeding instead of compelling attendance by the witness at trial.

Bell v. Cone, 535 U.S. 685 (2002), was a Supreme Court of the United States case that upheld a death sentence despite the defendant's argument that he should not be sentenced to death because he was suffering from drug-induced psychosis when he committed the crimes. Cone also argued that he was denied effective assistance of counsel because his attorney failed to present sufficient mitigating evidence during the sentencing phase of his trial and that his attorney inappropriately waived his final argument during the sentencing phase. In an 8–1 opinion written by Chief Justice William Rehnquist, the United States Supreme Court denied Cone's petition for a writ of habeas corpus. The Court held that the actions taken by Cone's attorney during the sentencing phase were "tactical decisions" and that the state courts that denied Cone's appeals did not unreasonably apply clearly established law. Justice John Paul Stevens wrote a dissenting opinion in which he argued that Cone was denied effective assistance of counsel because his attorney failed to "subject the prosecution's case to meaningful adversarial testing."

Lafler v. Cooper, 566 U.S. 156 (2012), was a United States Supreme Court case in which the Court clarified the Sixth Amendment standard for reversing convictions due to ineffective assistance of counsel during plea bargaining. The Court ruled that when a lawyer's ineffective assistance leads to the rejection of a plea agreement, a defendant is entitled to relief if the outcome of the plea process would have been different with competent advice. In such cases, the Court ruled that the Sixth Amendment requires the trial judge to exercise discretion to determine an appropriate remedy.

Garza v. Idaho, 586 U.S. ___, 139 S. Ct. 738 (2019), was a case in which the United States Supreme Court held that the presumption of prejudice for Sixth Amendment purposes applies regardless of whether a defendant has waived the right to appeal.

Kimmelman v. Morrison, 477 U.S. 365 (1986), was a decision of the U.S. Supreme Court that clarified the relationship of the right to effective assistance of counsel under the Sixth Amendment to other constitutional rights in criminal procedure. In this case, evidence against the defendant was probably seized illegally, violating the Fourth Amendment, but he lost the chance to argue that point due to his lawyer's ineffectiveness. The prosecution argued that the defendant's attempt to make a Sixth Amendment argument via a habeas corpus petition was really a way to sneak his Fourth Amendment argument in through the back door. The Court unanimously disagreed, and held that the Fourth Amendment issue and the Sixth Amendment issue represented different constitutional values, and had different requirements for prevailing in court, and therefore were to be treated separately by rules of procedure. Therefore, the habeas corpus petition could go forward. In its opinion, the Court also gave guidance on how to apply its decisions in Stone v. Powell and Strickland v. Washington.

References

  1. ↑ United States Constitution, Amendment VI
  2. ↑ Brewer v. Williams, 430 U.S., 398
  3. ↑ Massiah v. United States , 377 U.S. 201 (1964)
  4. ↑ Chief Justice Warren E. Burger. "U. S. v. Mandujano, 425 U.S. 564, 581, 96 S. Ct. 1768, 1779, 48 L. Ed. 2d 212 (1976)". Justicia. Retrieved February 15, 2012.
  5. ↑ Wheat v. United States, 486 U.S. 153 (1988).
  6. ↑ Morris v. Slappy, 461 U.S. 1 (1983).
  7. ↑ United States v. Gonzalez-Lopez, 548 U.S. 140 (2006).
  8. ↑ Burger v. Kemp, 483 U.S. 776 (1987); Cuyler v. Sullivan, 446 U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475 (1978).
  9. ↑ See United States v. Curcio, 680 F.2d 881 (2d Cir. 1982).
  10. ↑ See, e.g., United States v. Schwarz, 283 F.3d 76 (2d Cir. 2002); United States v. Fulton, 5 F.3d 605 (2d Cir. 1993).
  11. ↑ Powell v. Alabama , 287 U.S. 45 (1932)
  12. ↑ Johnson v. Zerbst , 304 U.S. 458 (1938)
  13. ↑ Betts v. Brady , 316 U.S. 455 (1942)
  14. ↑ Hamilton v. Alabama , 368 U.S. 52 (1961)
  15. ↑ Gideon v. Wainwright , 372 U.S. 335 (1963)
  16. ↑ Argersinger v. Hamlin , 407 U.S. 25 (1972)
  17. ↑ Scott v. Illinois , 440 U.S. 367 (1979)
  18. ↑ McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)
  19. ↑ Avery v. State of Alabama, 308 U.S. 444, 446 (1940)
  20. ↑ State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995)
  21. ↑ Strickland v. Washington, 466 U.S. 668 (1984). See also Casey Scott McKay, Constitutional Law-the Plea-Bargaining Process-Mr. Counsel, Please Bargain Effectively for Your Client's Sixth Amendment Rights, Otherwise the Trial Court Will Be Forced to Reoffer the Plea Deal and Then Exercise Discretion in Resentencing, 82 Miss. L.J. 731 (2013) . Archived 2019-07-02 at the Wayback Machine
  22. ↑ Hill v. Lockhart, 474 U.S. 52, 59 (1985).
  23. ↑ Padilla v. Kentucky, 130 S. Ct. 1473 (2010). See also Casey Scott McKay, Constitutional Law-the Plea-Bargaining Process-Mr. Counsel, Please Bargain Effectively for Your Client's Sixth Amendment Rights, Otherwise the Trial Court Will Be Forced to Reoffer the Plea Deal and Then Exercise Discretion in Resentencing, 82 Miss. L.J. 731 (2013) . Archived 2019-07-02 at the Wayback Machine
  24. ↑ 2nd Circuit: Having a Lawyer Satisfies Test for Court Access, Law.com, Mark Hamblett, October 8, 2004
  25. ↑ Gideon v. Wainwright , 372 U.S. 335, 345 (1963)
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