The Sixth Amendment’s provision for a right to counsel to defendants in criminal cases is greatly complicated by the fact that, contrary to initial assumptions, this constitutional right is hardly absolute. Quite the contrary, the right to counsel is limited in several respects and qualified in many circumstances by a tremendous variety of legal cases addressing the right. Legal scholars consistently note in this respect, for example, that “the counsel guarantee has never been a rigid or static doctrine. Rather, it has been an evolving embodiment of the fair process norms of a given historical context” (Metzger, 2003, p. 1635).

There have been historical periods in which the right to counsel concept has been broadly interpreted and periods in which it has been narrowly interpreted; these are often referred to in the academic literature as periods of expansion and constriction of the right to counsel. Generally, speaking the legal issues involve whether a right to counsel exists to particular classes of criminal defendants and whether a right to counsel exists at different stages in a criminal case. The right to counsel is therefore interpreted both with respect to the type of criminal charges involved and the procedural stages of a criminal prosecution.

The right to counsel was fundamentally an American reaction to its perception that English laws were arbitrary and did not allow fair procedures for the criminally accused. It was in order to remedy the one-sided nature of criminal prosecutions under English law that America decided to include a right to counsel in the text of the constitution. The fundamental policy goals were to even the playing field because prosecutors had more power than the accused and because fair procedures were considered an integral feature of a legitimate system of criminal trials.

In a case referred to as the “‘Scottsboro Boys’ case” (Metzger, 2003, p. 1637), the United States Supreme Court decided that the right to counsel as set forth in the Sixth Amendment did not apply to the fifty states; as a result, initially the right to counsel was confined to federal criminal prosecutions. This was certainly a narrow interpretation and application. Later, however, in a case titled Powell v. Alabama, the United States Supreme Court effectively applied a right to counsel to state defendants in criminal cases via the Fourteenth Amendment.

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This case involved a criminal trial, for murder, against nine black defendants and not lawyers were provided for these defendants until just before the trial which had the potential for death penalty sentences. The Court thus reasoned that a “poor” or “ineffective” type of legal representation violated a due process right to counsel pursuant to the Fourteenth Amendment because “such poor representation was the same as a denial of the right to counsel, and that denial ‘contravenes the due process clause of the Fourteenth Amendment to the Federal Constitution'” (Metzger, 2003, p. 638).

By defining the right to counsel in terms of both the Sixth and Fourteenth Amendments, this right became more broadly applicable and began to be recognized both federally and at the state level as a matter of federal constitutional law. Several future cases continued to expand or to safeguard this right to counsel. In Johnson v. Zerbst, for instance, the Supreme Court held that certain criminal procedures could not commence unless an accused executed a valid waiver of the counsel right; in Betts v. Brady, by contrast, the Supreme Court issued a legal decision to the effect that the right to counsel guarantee’s of the Sixth and Fourteenth Amendments were not synonymous.

The practical effect was that federal criminal defendants had a somewhat more explicit right to counsel pursuant to the Sixth Amendment whereas criminal defendants in state cases were compelled to rely on a more tenuous right to counsel pursuant to the Fourteenth Amendment. Subsequent landmark cases provided that certain poor classes of criminally accused were entitled to appointed lawyers under Gideon v. Wainwright (Marcus, 2009, p. 144) and the procedures preliminary to the commencement of a formal criminal trial were also covered by the right to counsel in United States v. Wade (Metzger, 2003, p. 1638).

Thus, as the previous cases illustrate, the right to counsel depends on whether the criminal case is state or federal, the type of criminal defendant, and the procedural stage involved. One particularly contentious and confusing set of issues concern how and whether the right to counsel can be reconciled with an individual’s desire to pursue self-representation in criminal trials.

Specifically, “The Faretta Court encountered a fundamental dichotomy: the right to self-representation versus the necessity of an attorney “to assure the defendant a fair trial. “The majority sought to resolve this conundrum by relying on the historical record and by attempting to discern the intent of the Framers” (Garcia, 1992, p. 41). In light of the aforementioned policy objectives underlying the right to counsel particularly with respect to the Sixth Amendment, the United States Supreme Court acknowledged that there was no explicit reference made to a self-representation right in the text of the Sixth Amendment.

Despite this lack of any specific reference, the Supreme Court nonetheless determined that such a right to represent oneself was implied as a result of the policy objectives underlying the design of the Sixth Amendment and fair procedure ideals. This does not undermine previous decision requiring any waivers of counsel to be based on reasonable facts and made in a rationale or intelligent manner. Ironically, although defendants in criminal cases are told about their right to lawyers and appointed lawyers in certain circumstances they are not informed of this implied right to represent themselves.

In one case, it was determined that judges can sometimes even appoint a lawyer to standby while the criminal defendant pursues self-representation (Garcia, 1992, p. 43). There would thus appear to be an uneasy relationship between the explicitly stated right to counsel and the implicit right to represent oneself in criminal trials. One reason proffered for this uneasy relationship is that criminal defendants engaging in self-representation are untrained in the nuances of the law and that self-representation may often prejudice certain rights in ways that would probably not happened with licensed lawyers.

In the final analysis, the right to counsel is not a monolithic right and is depends on the type of criminal defendant, the forum, and the procedural stage of the criminal case. There is also the interplay of the Sixth and Fourteenth Amendments as well as confusion and tension that arises because of an implied right to self-representation. The lesson to be learned is that a right to counsel depends to an overwhelming extant on legal precedent and is heavily fact-dependent.



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