THE RIGHT TO COUNSEL AND SYSTEMS
Introduction
The sixth amendment is crucial in comprehending an individual’s right to counsel. As such, the right to counsel has a strong relationship with criminal procedures and the right to self-representation. The attorney plays a vital role in the criminal justice system relative to its application of the right to counsel. Consequently, a criminal defendant has the right to an attorney, as outlined by the sixth amendment of the US constitution. Hence, the assistance of an attorney is required in criminal prosecutions in the US. It is a constitutional right for the defendant to be represented by an attorney during the prosecution process. Therefore, all accused persons should be provided with a speedy public trial as directed by the state’s impartial jury. So, the US constitution apprehends that an accused person is innocent until proven guilty by the courts.
The Development of Right to Counsel
The right to counsel has not always been part of the court system. “English first allowed a defendant the right to legal representation in trial treasons only in 1965” (Zalman, 2011). It was not until the 1800s that defendants were allowed legal representation inside the courtroom. Colonial America quickly embraced the use of paid attorneys for criminal trials (Zalman, 2011). Even though attorneys were allowed in criminal trials, this did not mean that everyone had an attorney to represent them. Defendants were allowed Counsel, but only if the defendant could afford an attorney (Clapman, 2011). Free Counsel was not mandatory to criminal defendants until the 1930s. However, the Powell and Alabama case proved that the courts provide free Counsel to the criminal defendant but only in special circumstances.
The Case
Miranda and Arizona is the famous case which exemplifies the importance of the right to counsel as provided by the US constitution. In this case, Ernesto Miranda was apprehended by the Phoenix Police on allegations of rape and kidnapping of a woman aged 18 years (Sonneborn, 2013). Since the accused was not conversant with the English language, he ended up signing a document confessing to being guilty of the rape and kidnapping charges placed against him. He signed the document purposing that he was not coerced to admitting the allegations against him. Furthermore, he admitted that he was aware of his legal rights, but because he did not speak English (Sonneborn, 2013).
Also, in Powell v Alabama nine African-American teenagers were tried and charged for rape. Eight teenagers were slapped with death sentences, but later the US Supreme Court reversed the decision. The US highest court reversed the decision stating that the defendants’ rights were violated and deserved to be heard (Clapman, 2011). The teenagers were denied the right to counsel. As such, no lawyer was appointed in their defense hence violating their human rights. As a result, the teenagers were left defenseless for a capital crime. The defendants’ right to counsel was not accorded, thus simply ignoring their actualities.
Besides, in 1938 two soldiers on leave were arrested and convicted in a federal case for passing counterfeit money. The two soldiers did not have a lawyer appointed to their case. The soldiers presented the case; however, the prosecutor pointed out and asked questions that made the soldiers look bad (Chacón, 2010). This was proof that the presence of Counsel is much needed in such a case. Justice Hugo Blacks, majority opinion secured that federal felony cases required an attorney unless waived by the defendant (Zalman, 2011). In 1972 the court found no difference between a misdemeanor and felony trials in regards to Counsel.
A person’s Right to Counsel
The Sixth Amendment, as provided by the US constitution, the accused an opportunity to appeal for Legal Counsel in the court of law. The right to counsel in the US is a constitutional right and must be accorded to every American (West, 2010). If a defendant cannot afford a lawyer, the government can appoint and, in other circumstances, pay for the legal expenses. A person’s right to counsel includes being provided with constitutional treatment while in custody awaiting the court’s verdict (Clapman, 2011). If a person is unable to afford Counsel, their Right to Counsel ensures that the court can appoint an attorney who serves in the best interest of the accused. The US constitution apprehends that all individuals have the right to counsel to create a balance with America’s criminal justice system. Furthermore, it is fundamental for states in the US to avail legal Counsel to all individuals charged with criminal offenses.
Right to Counsel on Discretionary Pleas
The courts ruled that providing Counsel for second, discretionary appeals was not to be extended (Bibas, 2011). Since the court provides Counsel for the first appeal, it does not believe supplying Counsel for the second appeal would make a difference. This does not mean defendants do not have the right to counsel just that the defendant must attain their own Counsel. The “fourteenth amendment does not require absolute equality or precisely equal advantages. It only requires that the state appellate systems be free of unreasonable distinctions” (Zalman, 2011).
The Sixth Amendment and States
The sixth amendment in the US has only been regarded as the ultimate rule for the US just in recent times. During the amendment’s initial stages, the states were not provided with the ability to provide Counsel to the accused. However, the final ratification done to the amendment enabled states to provide Counsel the accused unable to provide for their own since it is a constitutional requirement in America (Sonneborn, 2013). As such, the right to counsel was considered as a necessity to persons who have been wrongly convicted. Hence, the sixth amendment provided a legal background to offer protection as provided by the law. Nevertheless, many individuals opposed amendments made since innocent persons would be provided equal opportunities for representation as those accused and found guilty. Conversely, we should comprehend that in the present society, a person is innocent until proven guilty (Gerstein, 2012). Accused persons should, therefore, be treated with the utmost respect and never evaluated on accusations leveled against them.
Ratification
The prosecution is required to create a successful case whereby individual accusations are examined based on set constitutionals laws in the US. Therefore, constitutional interpretation is vital in determining key case outcomes based on the provided evidence. As a result, the amendment ratification is crucial in determining criminal court verdicts. A large portion of our laws has evolved, as well as the way crimes are being committed to exploiting loopholes in the way the law is written (Sonneborn, 2013). To combat this, the meanings have to change as well. For the law of our land to be effectively and accurately as possible, many lawmakers believe our criminal justice system must work.
The Sixth Amendment originally stemmed from a need to reinforce the standards set in place by lawmakers in colonial America when they were at war with the English. The right to counsel was considered to be abused and could potentially be a negative that worked against the defendant (Bibas, 2011). It was also believed the Counsel who would be appointed would not defend their client’s best interests. Nowhere in the amendment does it state that the person accused will be given Counsel provided by the government (Sonneborn, 2013). Because of this, an addendum had to be added later to be able to battle an issue of legality that could arise when facing the integration of the right to counsel clause as it applied to the modern system of criminal justice.
Self-Representation
The Sixth Amendment does not only outline provisions regarding the right to counsel, but it also states that a person can represent himself or herself if they so choose (Home et al., 2015). Historical evidence shows us that the right to self-representation has been in existence since the US found independence. A defendant that chooses to self-represent must first voluntarily and knowingly decide to take their case rather than illicit the assistance of their attorney (Bibas, 2011). This must be done promptly, and the person must understand and acknowledge that they are waiving their right to counsel. Next, the courts are obligated to remind the person that if they choose to self-represent that the decision may have ramifications. “He who represents himself has a fool for a client.” (Abraham Lincoln).
However, it is not guaranteed that an individual must be accorded the right of representation. In other cases, the defendant is required to appoint a standby counsel who would act on their behalf. As such, the Constitution provides a trial judge who has the authority to terminate the standby counsel’s representation without the defendant’s consent (Johnston, 2011). For instance, the Martinez and Court of appeal case proved that the defendant could not represent oneself on appeal (Tomkovicz, 2002). A person is allowed to decide to attempt self-representation if they find they are unable to obtain a lawyer willing to take their case. Self-representation is an option if the defendant does not believe their lawyer is performing to the best of their ability to give legal advice. The fees a lawyer charges may also be a reason a person would choose to take their case. However, Self-representation may not be an option for a judge who eliminates self-representation (Israel, Kamisar & LaFave, 2009).
The Fifth Amendment
The Fifth Amendment is also implicated in a person’s right to counsel as it is governed by the Constitution. Self-incrimination or not providing self-incrimination evidence during the Miranda process could be considered grounds for a person’s right to counsel. Any evidence gathered while the suspect is giving a statement could grant probable cause (Chacón, 2010). This means that while being given the Miranda rights, the suspect must have Counseled to ensure that they are protected while they are in custody. Waving Miranda rights is optional; however, if it can be proven that someone did so without having a full understanding of what that means, then the information shared can technically not be used by the courts because it was obtained in an unlawful manner (Israel, Kamisar & LaFave, 2009). A difference between the Fifth and Sixth Amendment protections is that the Fifth states that a person is not allowed to be questioned in regards to any case regardless of any information. The Sixth simply gives protection over the direct case that the suspect is involved in.
Federal Implications
At the federal level in the criminal court, a person is required to distinguish between their rights to counsel when obtaining representation versus the state obtaining representation. States have been accused of obtaining representation for the accused that were incompetent (West, 2010). Because of this, federal courts have now imposed rules in regard to the knowledge of the attorney to be appointed. The attorney is required to give insight and knowledge on the case in which they have been appointed, and other representation will be sought if they can’t. In a landmark case, a defendant pled guilty to a charge but was overturned because their plea was allegedly neither voluntary nor intelligent (Tomkovicz, 2002). They also reported that their attorney was not capable of providing quality legal advice. It was later found that the lawyer did not completely and accurately advise based on the sentencing that resulted in a plea of guilty. The conviction was overturned due to a poor representation from his legal Counsel. As a result of this case, a competent lawyer is now a fundamental right under the federal court system (Israel, Kamisar & LaFave, 2009).
The assistance of Counsel Guaranteed
The Sixth Amendment guarantees assistance of Counsel when needed but also when wanted. The defendant has the right to defend oneself in a criminal trial. The judge also has the right to deny the defendant this right if the judge believes the defendant cannot do so adequately. Effective Counsel does not have a clear definition, rather a set of guidelines (Chacón, 2010). Counsel must be able to present the case effectively, presenting mitigating factors and positive sides of the defendant. Besides, the two-prong test for ineffective Counsel looks at performance and the prejudice of the Counsel (Johnston, 2011). The defendant must prove that the Counsel was unreasonable. “A convicted defendant claiming ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable, professional judgment” (Zalman, 2011). By prejudice, the courts are looking to see if the Counsel’s performance directly contributed to a guilty verdict or sentence of death. Deficiency in the attorney’s performance, causing errors, is viewed as prejudice.
Presumed Ineffective Counsel
Ineffective Counsel is presumed when failure to argue a point under federal sentencing guidelines, possibly increasing the defendant’s sentence of six months or more. This is enough to raise the ineffective counsel argument (Zalman, 2011). “under Strickland v Washington (1984) a defendant established prejudice when a trial court makes a sentencing error, the attorney fails to argue against the error, and as a result, the defendant’s sentence is increased” (Zalman, 2011).
Limitations
Many court cases are presented in regard to the defendant’s right to Counsel. However, some limitations are required to be taken into consideration. A defendant must be represented, but they do not have the right to choose the type of Counsel they will receive. If the court appoints the attorney, they must be competent (Gerstein, 2012). The defendant has no right to choose one appointed attorney over another based-on reputation. If the appointed attorney has proven to be knowledgeable, that attorney must represent the defendant. Defendants may be able to show just cause about preferring to self-represent, but again, they must show a clear understanding in deciding to refuse Counsel for their case (Tomkovicz, 2002).
Conclusion
Over the years, the court system has evolved to better protect the rights of criminal defendants Constitutional rights. The right to Counsel and due process is set in place to ensure everyone is equally and fairly treated when accused of criminal activity. Without these rights and processes, society would breakdown and end up in chaos. The need for rules and regulations will always be around, as will the need for the evolvement of rights and processes. Moreover, an individual right to counsel is guaranteed by the US sixth amendment to ensure equality before the law. An individual must be considered innocent until proven guilty, thus requiring persons to be fairly represented before the law. Also, the fifth and sixth amendments differ since the latter protects the accused contrary to the former. Such constitutional changes have ensured justice is provided to persons who have been wrongly accused.
References
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Chacón, J. M. (2010). A diversion of attention? Immigration courts and the adjudication of fourth and fifth amendment rights. Duke Law Journal, 1563-1633.
Clapman, A. (2011). Petty Offenses, Drastic Consequences: Toward a Sixth Amendment Right to Counsel for Noncitizen Defendants Facing Deportation. Cardozo L. Rev., 33, 585.
Gerstein, C. (2012). Plea bargaining and the right to counsel at bail hearings. Mich. L. Rev., 111, 1513.
Home, C. P. O. P., Mission, C. P. O. P., Staff, C. P. O. P., Rates, R. M. M., & Disparities, S. (2015). The growing gap in life expectancy by income: Implications for federal programs and policy responses.
Israel, J. H., Kamisar, Y., & LaFave, W. R. (2009). Criminal Procedure and the Constitution. West Publishing Company.
Johnston, E. L. (2011). Representational Competence: Defining the Limits of the Right to Self-Representation at Trial. Notre Dame L. Rev., 86, 523.
Shatz, H. J., Kitchens, K. E., & Rosenbloom, S. (2011). Highway infrastructure and the economy: implications for federal policy. Rand Corporation.
Sonneborn, L. (2013). Miranda V. Arizona: The Rights of the Accused. The Rosen Publishing Group.
Tomkovicz, J. J. (2002). The right to the assistance of Counsel: A reference guide to the United States Constitution (No. 1). Greenwood Publishing Group.
West, E. M. (2010). Court Findings of Ineffective Assistance of Counsel Claims in Post-Conviction Appeals Among the First 255 DNA Exoneration Cases. Innocence Project.
Zalman, M. (2011). Criminal procedure: Constitution and society. Pearson College Division.