By FindLaw Staff | Reviewed by Laura Temme, Esq. | Last updated July 27, 2022
"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.
"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."
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
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
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
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
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