Right to Counsel

Right to Counsel


Right to Counsel

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense“ (U.S. Const. amend. VI.). The constitutional right to counsel is one that has been debated, denied and expanded upon over the last 83 years by the U.S. Supreme Court, and still remains to be one of the most misunderstood rights that we have as a United States Citizen.

Effective Counsel

“The decisions of the U.S. Supreme Court have also construed this Right to Counsel Clause to mean that an impoverished, or indigent, defendant has the constitutional right to the presence of a court-appointed attorney at critical stages in the criminal proceedings. These critical stages include Custodial Interrogation, post-indictment lineups, preliminary hearings, Arraignment, trial, sentencing, and the first appeal of conviction” (“Right to Counsel”, 2003-2015). This right has also been broadened to include the right to effective assistance of counsel, meaning that all defendants are entitled to a competent and knowledgeable attorney.

In recent years the standard of effective assistance of counsel has been tested but has proved to be hard to establish. “Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant has to prove not only that the attorney’s performance was less than reasonable but that this sub-standard performance changed the outcome of the trial. The second factor is very hard to prove, especially when the evidence of guilt is overwhelming” (“Right to Counsel”, 2003-2015).

In 2013, the U.S. Supreme Court declined to review the Price v. Thomas case involving the issue of effective and competent counsel. “There is no question that the crime here was shocking and that Price is guilty. But there is no question, too, that his court-appointed lawyer did not come close to providing him with “effective assistance” in the penalty phase of his trial” (Cohen, 2013). Price’s lawyer did a number of things to show incompetence, including not asking to delay the penalty phase of the trial for even a few days (as it was done on the same day that Price was found guilty). She also did not investigate his background, where she would have learned of years of child abuse endured by the defendant, or speak with witnesses prior to the trial. She then allowed the closing argument to be given by her second chair who had never addressed a jury and was a recent law school graduate. Price received the death penalty for his crimes but appealed his sentence several times working his way up through the courts. However, the appeals were denied, stating that what his lawyer failed to do would not have affected the sentenced that he received had she actually done it.

Another decision in 2013 was made in the State v. Terrence Miller case by the Supreme Court furthering the inability to exercise the right to ineffective counsel. The case started out with a private counsel but ended with a court appointed attorney. Miller’s initial appointed attorney who informed the court that she was unable to try the case. A new attorney was appointed on December 6th, only four days before the trial was scheduled. His attorney didn’t use that time to meet with Miller to discuss the case, instead waited until the day of the trail and conferred with Miller for a little under an hour in a stairwell in the courthouse prior to the hearing. Miller stated that his right to effective counsel had been denied because he was not afforded the opportunity to build rapport with his attorney, or even discuss a defense. “In fact, the attorney heard his client’s story for the first time while he was testifying under oath at the suppression hearing” (Gelber, 2013). The courts held that Miller’s rights were not denied he had been afforded the opportunity to meet with his attorney, and his attorney had stated that he was prepared and provided a vigorous defense.


“For 150 years, the Right to Counsel Clause was construed as simply granting to a defendant the right to retain a private attorney. This did not mean that an impoverished criminal defendant had the right to a court-appointed attorney without cost. In 1932, the U.S. Supreme Court began to reverse this interpretation in Powell v. Alabama” (“Right to Counsel”, 2003-2015). The decision in, this case, required counsel be provided to indigent defendants in capital cases. This decision was furthered in 1963 with Gideon v. Wainwright when it was decided that it was required that all indigent defendants must be provided with counsel when facing serious criminal charges. Then in 1972 the Argersinger v. Hamlin decision “a unanimous Court extended that right to cover defendants charged with misdemeanors who faced the possibility of a jail sentence” (“Oyez”, 2005-2011).


Although all U.S. Citizens have been afforded the right to counsel at all critical stages in criminal proceedings it has been hard to achieve guarantee for the effective assistance part of this clause. Should you receive counsel that is incompetent, it only matters if you can prove that the outcome would have been different with one who was not, an almost impossible feat. This is an area that I am sure will be looked at more closely in the years to come, and hopefully bring more decisions by the Supreme Court to do more to ensure that we receive effective counsel, as it is immensely important for the ability to receive a fair and just trial.


Cohen, A. (2013, March). When a Minister is Murdered, There is no Right to Counsel. The Atlantic. Retrieved from http://www.theatlantic.com/national/archive/2013/03/when-a-minister-is-murdered-there-is-no-right-to-counsel/273756/

Gelber, D. (2013, October). State v. Miller- New Jersey Supreme Court Gives Short Shrift to Right to Counsel. Jersey Justice Monitor. Retrieved from http://www.jerseyjusticemonitor.com/2013/10/07/state-v-miller-nj-supreme-court-gives-short-shrift-to-right-to-counsel/

Oyez. (2005-2011). Retrieved from http://www.oyez.org/cases/1970-1979/1971/1971_70_5015

Right to Counsel. (2003-015). In The Free Dictionary. Retrieved from http://legal-dictionary.thefreedictionary.com/right+to+counsel

U.S. Const. amend. VI.