Sixth Amendment Right to an Attorney

"You have the right to an attorney. If you cannot afford an attorney one will be provided to you." This statement is well-known to many, whether they've heard it themselves or only on TV. The right for criminal defendants to have the assistance of an attorney comes from the Sixth Amendment. And over the years the Supreme Court has interpreted the Sixth Amendment to determine its scope and when it applies. 

If you or someone you know faces criminal charges, it's important to have someone in your corner protecting your rights. You have the right to an attorney, use it.

What the Sixth Amendment Says

"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 defence."

What It Means

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

By federal statute, an individual tried for a capital crime in a federal court was entitled to appointed counsel, and, by judicial practice, the federal courts came to appoint counsel frequently for indigents charged with noncapital crimes, although it may be assumed that the practice fell short at times of what is now constitutionally required.¹ State constitutions and statutes gradually ensured a defendant the right to appear in state trials with retained counsel, but the states were far less uniform on the existence and scope of a right to appointed counsel. It was in the context of a right to appointed counsel that the Supreme Court began to develop its modern jurisprudence on a constitutional right to counsel generally, first applying procedural due process analysis under the Fourteenth Amendment to state trials, also finding a Sixth Amendment based right to appointed counsel in federal prosecutions, and eventually applying this Sixth Amendment based right to the states.

The development began in Powell v. Alabama,² in which the Court set aside the convictions of eight black youths sentenced to death in a hastily carried-out trial without benefit of counsel. Due process, Justice Sutherland said for the Court, always requires the observance of certain fundamental personal rights associated with a hearing, and the right to the aid of counsel is of this fundamental character. This observation was about the right to retain counsel of one's choice and at one's expense, and included an eloquent statement of the necessity of counsel. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crimes, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he is not guilty, he faces the danger of conviction because he does not know how to establish his innocence.³

The failure to afford the defendants an opportunity to retain counsel violated due process, but the Court acknowledged that the youths could not have retained counsel. Therefore, the Court concluded, under the circumstances—the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their lives—the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment. The holding was narrow. The Court stated that in a case in which the defendant faces the death penalty, does not have a lawyer, and is unable to mount his own defense because of intellectual disability, illiteracy, or a similar condition, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.⁴

Defendants Who Cannot Afford An Attorney

The next step in the expansion came in Johnson v. Zerbst,⁵ in which the Court announced an absolute rule requiring the appointment of counsel for federal criminal defendants who could not afford to retain a lawyer. The right to assistance of counsel, Justice Black wrote for the Court, is necessary to insure fundamental human rights of life and liberty. Without stopping to distinguish between the right to retain counsel and the right to have counsel provided if the defendant cannot afford to hire one, the Justice quoted Justice Sutherland's invocation of the necessity of legal counsel for even the intelligent and educated layman and said: 

"The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel."⁶

Any waiver, the Court ruled, must be by the intelligent choice of the defendant, will not be presumed from a silent record, and must be determined by the trial court before proceeding in the absence of counsel.⁷

An effort to obtain the same rule in the state courts in all criminal proceedings was rebuffed in Betts v. Brady.⁸ Justice Roberts for the Court observed that the Sixth Amendment would compel the result only in federal courts but that in state courts the Due Process Clause of the Fourteenth Amendment formulates a concept less rigid and more fluid than those guarantees embodied in the Bill of Rights, although a state denial of a right protected in one of the first eight Amendments might in certain circumstances be a violation of due process. The question was rather whether the constraint laid by the Amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment.⁹

Examining the common-law rules, the English practice, and the state constitutions, laws, and practices, the Court concluded that it was the considered judgment of the people, their representatives, and their courts that appointment of counsel is not a fundamental right essential to a fair trial. Want of counsel in a particular case might result in a conviction lacking in fundamental fairness and so necessitate the interposition of constitutional restriction upon state practice, but this was not the general rule.¹⁰ Justice Black in dissent argued that the Fourteenth Amendment made the Sixth applicable to the states and required the appointment of counsel, but that even on the Court's terms counsel was a fundamental right and appointment was required by due process.¹¹

Learn More: When Does the Right to An Attorney Apply?

Over time the Court abandoned the special circumstances language of Powell v. Alabama¹² when capital cases were involved and finally in Hamilton v. Alabama,¹³ held that in a capital case a defendant need make no showing of particularized need or of prejudice resulting from the absence of counsel; henceforth, the assistance of counsel was a constitutional requisite in capital cases. 

In non-capital cases, developments were such that Justice Harlan could assert that the 'special circumstances' rule has continued to exist in form while its substance has been substantially and steadily eroded.¹⁴ The rule was designed to afford some certainty in the determination of when failure to appoint counsel would result in a trial lacking in fundamental fairness. 

Generally, the Court developed three categories of prejudicial factors, often overlapping in individual cases, which required the furnishing of assistance of counsel. There were (1) the personal characteristics of the defendant which made it unlikely he could obtain an adequate defense of his own,¹⁵ (2) the technical complexity of the charges or of possible defenses to the charges,¹⁶ and (3) events occurring at trial that raised problems of prejudice.¹⁷ The last characteristic especially had been used by the Court to set aside convictions occurring in the absence of counsel,¹⁸ and the last case rejecting a claim of denial of assistance of counsel had been decided in 1950.¹⁹

Against this background, a unanimous Court in Gideon v. Wainwright²⁰ overruled Betts v. Brady and held that in our adversary system of criminal justice, 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.²¹ Justice Black, a dissenter in the 1942 decision, asserted for the Court that Betts was an abrupt break with earlier precedents, citing Powell and Zerbst. Rejecting the Betts reasoning, the Court decided that the right to assistance of counsel is fundamental and the Fourteenth Amendment does make the right constitutionally required in state courts.²² The Court's opinion in Gideon left unanswered the question of whether the right to assistance of counsel could be claimed by defendants charged with misdemeanors or serious misdemeanors as well as with felonies, and it was not until later that the Court held that the right applies to any misdemeanor case in which imprisonment is imposed—that no person may be sentenced to jail who was convicted in the absence of counsel unless he validly waived his right.²³ The Court subsequently extended the right to cases where a suspended sentence or probationary period is imposed, on the theory that any future incarceration that occurred would be based on the original uncounseled conviction.²⁴

Because the absence of counsel when a defendant is convicted or pleads guilty goes to the fairness of the proceedings and undermines the presumption of reliability that attaches to a judgment of a court, Gideon has been held fully retroactive, so that convictions obtained in the absence of counsel without a valid waiver are not only voidable,²⁵ but also may not be subsequently used either to support guilt in a new trial or to enhance punishment upon a valid conviction.²⁶

Right to Hire the Lawyer of Your Choice

Though there is a presumption under the Sixth Amendment that a defendant may retain counsel of choice, the right to choose a particular attorney is not absolute. The prospect of compromised loyalty or competence may be sufficiently immediate and serious for a court to deny a defendant's selection. In Wheat v. United States, the district court had denied a defendant's proffered waiver of conflict of interest and refused to allow representation by an attorney who represented the defendant's co-conspirators in an illegal drug enterprise.²⁷

Upholding the district court's discretion to disallow representation in instances of an actual conflict of interests or serious potential for conflict, the Court mentioned other situations in which a defendant's choice may not be honored. A defendant, for example, is not entitled to an advocate who is not a member of the bar, nor may a defendant insist on representation by an attorney who denies counsel for financial reasons or otherwise, nor may a defendant demand the services of a lawyer who may be compromised by past or ongoing relationships with the Government.²⁸

The right to retain counsel of choice generally does not bar operation of forfeiture provisions, even if the forfeiture serves to deny to a defendant the wherewithal to employ counsel. In Caplin & Drysdale v. United States,²⁹ the Court upheld a federal statute requiring forfeiture to the government of property and proceeds derived from drug-related crimes constituting a continuing criminal enterprise,³⁰ even though a portion of the forfeited assets had been used to retain defense counsel. Although a defendant may spend his own money to employ counsel, the Court declared, a defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that defendant will be able to retain the attorney of his choice.³¹ Because the statute vests title to the forfeitable assets in the United States at the time of the criminal act,³² the defendant has no right to give them to a third party even if the purpose is to exercise a constitutionally protected right.³³ Moreover, on the same day Caplin & Drysdale was decided, the Court, in United States v. Monsanto, held that the government may, prior to trial, freeze assets that a defendant needs to hire an attorney if probable cause exists to believe that the property will ultimately be proved forfeitable.³⁴ Nonetheless, the holdings from Caplin & Drysdale and Monsanto are limited in that the Court, in Luis v. United States, has held that the Sixth Amendment provides criminal defendants the right to preserve legitimate, untainted assets unrelated to the underlying crime in order to retain counsel of their choice.³⁵

Nevertheless, where the right to be assisted by counsel of one's choice is wrongly denied, a Sixth Amendment violation occurs regardless of whether the alternate counsel retained was effective, or whether the denial caused prejudice to the defendant.³⁶ Further, because such a denial is not a trial error (a constitutional error that occurs during the presentation of a case to the jury), but a structural defect (a constitutional error that affects the framework of the trial),³⁷ the Court had held that the decision is not subject to harmless-error analysis.³⁸

The Court has held that the Sixth Amendment, in addition to guaranteeing the right to retained or appointed counsel, also guarantees a defendant the right to represent himself.³⁹ It is a right the defendant must adopt knowingly and intelligently; under some circumstances the trial judge may deny the authority to exercise it, as when the defendant simply lacks the competence to make a knowing or intelligent waiver of counsel or when his self-representation is so disruptive of orderly procedures that the judge may curtail it.⁴⁰ The right applies only at trial; there is no constitutional right to self-representation on direct appeal from a criminal conviction.⁴¹

The essential elements of self-representation were spelled out in McKaskle v. Wiggins,⁴² a case involving the self-represented defendant's rights vis-a-vis standby counsel appointed by the trial court. The core of the Faretta right is that the defendant is entitled to preserve actual control over the case he chooses to present to the jury, and consequently, standby counsel's participation should not be allowed to destroy the jury's perception that the defendant is representing himself.⁴³ But the participation of standby counsel even in the jury's presence and over the defendant's objection does not violate the defendant's Sixth Amendment rights when serving the basic purpose of aiding the defendant in complying with routine courtroom procedures and protocols and thereby relieving the trial judge of these tasks.⁴⁴

More on the Sixth Amendment

• Right to a Trial By Jury
• Jury Selection and Bias
• Gideon v. Wainwright Case Summary

Footnotes

1. W. Beaney, The Right to Counsel in American Courts 29–30 (1955).
2. 287 U.S. 45 (1932).
3. 287 U.S. at 68–69.
4. 287 U.S. at 71.
5. 304 U.S. 458 (1938).
6. 304 U.S. at 462, 463.
7. 304 U.S. at 464–65. The standards for a valid waiver were tightened in Walker v. Johnston, 312 U.S. 275 (1941), setting aside a guilty plea made without assistance of counsel, by a ruling requiring that a defendant appearing in court be advised of his right to counsel and asked whether or not he wished to waive the right. See also Von Moltke v. Gillies, 332 U.S. 708 (1948); Carnley v. Cochran, 369 U.S. 506 (1962). A waiver must be knowing, voluntary, and intelligent, but need not be based on a full and complete understanding of all of the consequences. Iowa v. Tovar, 541 U.S. 77 (2004) (holding that warnings by trial judge detailing risks of waiving right to counsel are not constitutionally required before accepting guilty plea from the uncounseled defendant).
8. 316 U.S. 455 (1942).
9. 316 U.S. at 461–62, 465.
10. 316 U.S. at 471, 473.
11. 316 U.S. at 474 (joined by Justices Douglas and Murphy).
12. 287 U.S. 45, 71 (1932).
13. 368 U.S. 52 (1961). Earlier cases employing the special circumstances language were Williams v. Kaiser, 323 U.S. 471 (1945); Tomkins v. Missouri, 323 U.S. 485 (1945); Hawk v. Olson, 326 U.S. 271 (1945); De Meerleer v. Michigan, 329 U.S. 663 (1947); Marino v. Ragen, 332 U.S. 561 (1947); Haley v. Ohio, 332 U.S. 596 (1948). Dicta appeared in several cases thereafter suggesting an absolute right to counsel in capital cases. Bute v. Illinois, 333 U.S. 640, 674 (1948); Uveges v. Pennsylvania, 335 U.S. 437, 441 (1948). A state court decision finding a waiver of the right in a capital case was upheld in Carter v. Illinois, 329 U.S. 173 (1946).
14. Gideon v. Wainwright, 372 U.S. 335, 350 (1963).
15. Youth and immaturity (Moore v. Michigan, 355 U.S. 155 (1957); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956); Uveges v. Pennsylvania, 335 U.S. 437 (1948); Wade v. Mayo, 334 U.S. 672 (1948); Marino v. Ragen, 332 U.S. 561 (1947); De Meerleer v. Michigan, 329 U.S. 663 (1947)), inexperience (Moore v. Michigan, supra (limited education), Uveges v. Pennsylvania, supra), and mental illness (Massey v. Moore, 348 U.S. 105 (1954); Palmer v. Ashe, 342 U.S. 134 (1951)), were commonly cited characteristics of the defendant demonstrating the necessity for assistance of counsel.
16. The technicality of the crime charged (Moore v. Michigan, 355 U.S. 155 (1957); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956); Williams v. Kaiser, 323 U.S. 471 (1945)), or the technicality of a possible defense (Rice v. Olson, 324 U.S. 786 (1945); McNeal v. Culver, 365 U.S. 109 (1961)), were commonly cited.
17. The deliberate or careless overreaching by the court or the prosecutor (Gibbs v. Burke, 337 U.S. 772 (1949); Townsend v. Burke, 334 U.S. 736 (1948); Palmer v. Ashe, 342 U.S. 134 (1951); White v. Ragen, 324 U.S. 760 (1945)), prejudicial developments during the trial (Cash v. Culver, 358 U.S. 633 (1959); Gibbs v. Burke, supra ), and questionable proceedings at sentencing (Townsend v. Burke , supra), were commonly cited.
18. Hudson v. North Carolina, 363 U.S. 697 (1960), held that an unrepresented defendant had been prejudiced when his co-defendant's counsel plead his client guilty in the presence of the jury, the applicable state rules to avoid prejudice in such situation were unclear, and the defendant in any event had taken no steps to protect himself. The case seemed to require reversal of any conviction when the record contained a prejudicial occurrence that under state law might have been prevented or ameliorated. Carnley v. Cochran, 369 U.S. 506 (1962), reversed a conviction because the unrepresented defendant failed to follow some advantageous procedure that a lawyer might have utilized. Chewning v. Cunningham, 368 U.S. 443 (1962), found that a lawyer might have developed several defenses and adopted several tactics to defeat a charge under a state recidivist statute, and that therefore the unrepresented defendant had been prejudiced.
19. Quicksal v. Michigan, 339 U.S. 660 (1950). See also Canizio v. New York, 327 U.S. 82 (1946); Foster v. Illinois, 332 U.S. 134 (1947); Gayes v. New York, 332 U.S. 145 (1947); Bute v. Illinois, 333 U.S. 640 (1948); Gryger v. Burke, 334 U.S. 728 (1948). Cf. White v. Ragen, 324 U.S. 760 (1945).
20. 372 U.S. 335 (1963).
21. 372 U.S. at 344.
22. 372 U.S. at 342–43, 344. Justice Black, of course, believed the Fourteenth Amendment made applicable to the States all the provisions of the Bill of Rights, Adamson v. California, 332 U.S. 46, 71 (1947), but for purposes of delivering the opinion of the Court followed the due process absorption doctrine. Justice Douglas, concurring, maintained the incorporation position. Gideon, 372 U.S. at 345. Justice Harlan concurred, objecting both to the Court's manner of overruling Betts v. Brady and to the incorporation implications of the opinion. Id. at 349.
23. Scott v. Illinois, 440 U.S. 367 (1979), adopted a rule of actual punishment and thus modified Argersinger v. Hamlin, 407 U.S. 25 (1972), which had held counsel required if imprisonment were possible. The Court has also extended the right of assistance of counsel to juvenile proceedings. In re Gault, 387 U.S. 1 (1967). See also Specht v. Patterson, 386 U.S. 605 (1967).
24. Alabama v. Shelton, 535 U.S. 654 (2002).
25. Pickelsimer v. Wainwright, 375 U.S. 2 (1963); Doughty v. Maxwell, 376 U.S. 202 (1964); Kitchens v. Smith, 401 U.S. 847 (1971). See Linkletter v. Walker, 381 U.S. 618, 639 (1965).
26. Loper v. Beto, 405 U.S. 473 (1972) (error to have permitted counseled defendant in 1947 trial to have his credibility impeached by introduction of prior uncounseled convictions in the 1930s; Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist dissented); United States v. Tucker, 404 U.S. 443 (1972) (error for sentencing judge in 1953 to have relied on two previous convictions at which defendant was without counsel); Burgett v. Texas, 389 U.S. 109 (1967) (admission of record of prior conviction without the assistance of counsel at trial, with instruction to jury to regard it only for purposes of determining sentence if it found defendant guilty, but not to use it in considering guilt, was inherently prejudicial); but see United States v. Bryant, 136 S. Ct. 1954. at 13 (2016) (holding that the use of prior, uncounseled tribal-court domestic abuse convictions as the predicates for a sentence enhancement in a subsequent conviction does not violate the Sixth Amendment right to counsel, as repeat offender laws penalize only the last offense committed by the defendant); Nichols v. United States, 511 U.S. 738 (1994) (as Scott v. Illinois, 440 U.S. 367 (1979) recognized that an uncounseled misdemeanor conviction is valid if defendant is not incarcerated, such a conviction may be used as the basis for penalty enhancement upon a subsequent conviction).
27. 486 U.S. 153 (1988).
28. 486 U.S. at 159.
29. 491 U.S. 617 (1989).
30. 21 U.S.C. § 853.
31. 491 U.S. at 626.
32. The statute was interpreted in United States v. Monsanto, 491 U.S. 600 (1989), as requiring forfeiture of all assets derived from the covered offenses, and as making no exception for assets the defendant intends to use for his defense.
33. Dissenting Justice Blackmun, joined by Justices Brennan, Marshall, and Stevens, described the Court's ruling as allowing the Sixth Amendment right to counsel of choice to be outweighed by a legal fiction. 491 U.S. at 644 (dissenting from both Caplin & Drysdale and Monsanto).
34. Monsanto, 491 U.S. at 615 (Indeed, it would be odd to conclude that the Government may not restrain property, such as the home and apartment in respondent's possession, based on a finding of probable cause, when we have held that . . . the Government may restrain persons where there is a finding of probable cause to believe that the accused has committed a serious offense.). A subsequent case held that where a grand jury had returned an indictment based on probable cause, that conclusion was binding on a court during forfeiture proceedings and the defendants do not have a right to have such a conclusion re-examined in a separate judicial hearing in order to unfreeze the assets to pay for their counsel. Kaley v. United States, 571 U.S. 320 (2014).
35. 136 S. Ct. 1083, 1087 (2016) (announcing the judgment of the Court). The Court in Luis split as to the reasoning for holding that a pretrial freeze of untainted assets violates a criminal defendant's Sixth Amendment right to counsel of choice. Four Justices employed a balancing test, weighing the government's contingent future interest in the untainted assets against the interests in preserving the right to counsel — a right at the heart of a fair, effective criminal justice system — in concluding that the defendant had the right to use innocent property to pay a reasonable fee for assistance of counsel. See id. at 1092–96 (Breyer, J., joined by Roberts, C.J., Ginsburg & Sotomayor, JJ.). Justice Thomas, in providing the fifth and deciding vote, concurred in judgment only, contending that textual understanding and history alone suffice to establish that the Sixth Amendment prevents the Government from freezing untainted assets in order to secure potential forfeiture. See id. at 1097 (Thomas, J., concurring); see also id. at 1101 (I cannot go further and endorse the plurality's atextual balancing analysis.).
36. United States v. Gonzalez-Lopez, 548 U.S. 140, 144–45 (2006).
37. Arizona v. Fulminante, 499 U.S. 279, 307–310 (1991).
38. Gonzalez-Lopez, 548 U.S. at 148–49. The Court noted that an important component of the finding that denial of the right to choose one's own counsel was a structural defect was the difficulty of assessing the effect of such denial on a trial's outcome. Id. at 149 n.4.
39. Faretta v. California, 422 U.S. 806 (1975). An invitation to overrule Faretta because it leads to unfair trials for defendants was declined in Indiana v. Edwards, 128 S. Ct. 2379, 2388 (2008). Even if the defendant exercises his right to his detriment, the Constitution ordinarily guarantees him the opportunity to do so. A defendant who represents himself cannot thereafter complain that the quality of his defense denied him effective assistance of counsel. 422 U.S. at 834–35 n.46. The Court, however, has not addressed what state aid, such as access to a law library, might need to be made available to a defendant representing himself. Kane v. Garcia Espitia, 546 U.S. 9 (2005) (per curiam). Related to the right of self-representation is the right to testify in one's own defense. Rock v. Arkansas, 483 U.S. 44 (1987) (per se rule excluding all hypnotically refreshed testimony violates right).
40. The fact that a defendant is mentally competent to stand trial does not preclude a court from finding him not mentally competent to represent himself at trial. Indiana v. Edwards, 128 S. Ct. 2379 (2008). Mental competence to stand trial, however, is sufficient to ensure the right to waive the right to counsel in order to plead guilty. Godinez v. Moran, 509 U.S. 389, 398 (1993).
41. Martinez v. Court of App. of Cal., Fourth App. Dist., 528 U.S. 152 (2000). The Sixth Amendment itself does not include any right to appeal. 528 U.S. at 160.
42. 465 U.S. 168 (1984).
43. 465 U.S. at 178.
44. 465 U.S. at 184.