History and Description of the Right to Counsel

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Table of Contents

Introduction
Historical development of the right to counsel
Elements of the right to counsel
Conclusion
References

Introduction

The right to counsel can be defined as a component of an individual’s right to fair trial that gives him/her the right to be assisted by a counsel, and in the case the defendant cannot pay for one, the government is required to appoint one for him/her. The right to counsel was first reflected in the Sixth amendment of the United States constitution (Tomkovicz, 2002). This paper seeks to establish the historical developments of the right to counsel in the US legal system. The paper will also describe at least three elements of the right to counsel.

Historical development of the right to counsel

The origins of the present day’s right to counsel for defendants who cannot afford to pay for their legal services can be traced to events that happened more than 100 years ago. As the law increasingly grew complex, it became apparent that ordinary individuals would require the assistance of attorneys/lawyers to interpret the law, especially during proceedings. The defense lawyer was required to look for any evidence that could exonerate his/her client from the charges labeled against them. The need for an attorney was crucial for boosting the chances of winning a case.

Individuals who were able to afford legal aid, easily accessed help in interpreting the law, doing the paper work and mapping out the important events in the course of a trial. However, those who could not afford the legal services of a lawyer became increasingly disadvantaged as the law became more complex to interpret. In 1853 during the Webb v. Baird, the Indiana Supreme Court identified the need for the right to an attorney at the expense of the public for an impoverished defendant who was being tried for criminal offences (Sonneborn, 2004). The right was awarded on the basis of “the principles of a civilized society,” and not as a constitutional law (Sonneborn, 2004, p. 34). The court stated that the life of any citizen was not going to be put into jeopardy or his/her rights infringed due to the mere fact that the/she is too poor to solicit for counsel aid. The Indiana Supreme Court further stated that it was wrong for any court to proceed with such a trial. In conclusion, the court stated that legal aid was essential for the accused and it was the duty of the court and the public to ensure that such aid was provided.

The right to counsel was thereafter captured in the sixth amendment of the US Constitution (1932) stating that “in all criminal trials, the accused shall enjoy the right to have the assistance of a Counsel for his/her defense” (Sonneborn, 2004, p. 60). The right to counsel during federal proceedings had initially been established by a statute. This right was later reasserted by the United States Supreme Court in 1938 in Johnson v. Zerbst (Sonneborn, 2004).

In the early years of the 20^th century the right to counsel was mostly overseen by way of volunteer efforts by lawyers who provided legal help to the poor, including those accused of capital offences (Tomkovicz, 2002). Legal aid was also facilitated by some private organizations, for instance, the New York Legal Aid Society (NYLAS) was formed late in the 19^th century to provide counsel for indigent immigrants (Kanovitz, 2010). Charity legal counsel services were also available in Los Angeles as from 1914. It’s important to note that at that time legal aid to the needy was only available in the major cities.

The “US Supreme Court established the mechanism for the implementation of the right to counsel in state prosecutions, this however gradually declined and finally stopped in the 20^th century” (Tomkovicz, 2002, p. 15). During a high profile case held in the depression era, the Court reaffirmed the need for a legal counsel in capital proceedings in all the states. This was not however extended to include cases involving felony. In 1963, “the Supreme Court dramatically established the right to counsel in nearly every aspect of state criminal proceedings” (Sonneborn, 2004, p. 54). The courts later reached a unanimous decision to compel all states to appoint a defense lawyer for impoverished persons facing trial for serious crimes. In 1965, the right was extended to indigent juveniles facing delinquency proceedings (Sonneborn, 2004). The right to counsel was subsequently expanded in the states to include all misdemeanor cases where there was a potential of one losing liberty such as mental competency and commitment hearings, status proceedings for juveniles, family matters such as non-payment of court ordered support, child dependency, and abuse and neglect proceedings (Tomkovicz, 2002).

Elements of the right to counsel

The right to counsel in the US constitution states, in part, “In all the criminal prosecutions, the accused shall enjoy the right… to have the Assistance of Counsel for his defense” (Tomkovicz, 2002, p. 33). The right to counsel has been interpreted to imply that an impoverished defendant has the right to have an attorney during all the significant stages of a prosecution. The attorney should be appointed by the court and is required to assist the indigent defendant during “custodial interrogation, post indictment lineups, preliminary hearings, arraignment, trial, sentencing, and the first appeal of conviction” (Sonneborn, 2004, p. 71). The legal counsel appointed for an indigent defendant must be able to provide effective and meaningful representation in all the above named stages. There have been cases where rulings have been reversed in cases where the defendant is deemed not to have received effective assistance from the appointed legal counsel. The defendant must however prove that the effectiveness of the legal counsel was so poor that it determined the outcome of the trial. The right to counsel does not however extend beyond the proceedings after court conviction. For instance, an impoverished defendant lacks the complete right to counsel for revocation of parole or probation proceedings (Kanovitz, 2010).

Historically, the Supreme Court has often dismissed cases where violations have been established in regard to the right to counsel. For instance, in 1964, Danny Escobedo was arrested and taken in for questioning as the first suspect in a murder (Tomkovicz, 2002). The police prevented Escobedo from talking to his attorney, and during subsequent interrogation he confessed to have participated in the murder. Later in the trial, Escobedo’s confessions were used as evidence to convict him for murder and this was promptly reversed by the Supreme Court. The Escobedo case was thereafter used by the court of appeal to warn the police against violating the defendant’s right to talk to his/her attorney even before formal charges are filed (Tomkovicz, 2002).

Conclusion

This paper sought to establish the historical developments of the right to counsel in the US legal system. The paper also sought to describe at least three elements of the right to counsel. It has been established that right to counsel was developed basically due to the difficulties in interpreting the law and the need to provide a fair to trial to all defendants regardless of their economic statuses. The right to counsel is often applied at all the crucial stages of the prosecution (Sonneborn, 2004).

References

Kanovitz, J. R. (2010). Constitutional law (12th ed). New providence. NJ: Mathew Bender.

Sonneborn, L. (2004). The Rights of the Accused. New York: Rosen.

Tomkovicz, J. (2002). The Right of the Assistance of Counsel: A reference guide to the United States Constitution. West port, Conn: Greenwood Press.

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History and Description of the Right to Counsel

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