Right to counsel
|Criminal trials and convictions|
|Rights of the accused|
|Related areas of law|
Right to counsel means a defendant has a right to have the assistance of counsel (i.e., lawyers), and if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal expenses. The right to counsel is generally regarded as a constituent of the right to a fair trial. Historically, however, not all countries have always recognized the right to counsel. The right is often included in national constitutions. 153 of the 194 constitutions currently in force have language to this effect (see the specific language in the 153 constitutions here);
The right to counsel is guaranteed under Section Ten of the Canadian Charter of Rights and Freedoms upon "arrest and detention", as well as the right to habeas corpus. However, there is no right to counsel during a criminal trial, except in specific situations.
In October 2010, the Supreme Court of Canada ruled that the right to counsel during interrogation is not absolute in Canada. It said that importing US-style Miranda Rights was not in the interests of Canada. The ruling was a bare majority ruling, with a strenuously voiced minority opinion stating that it would lead to more false confessions and bad convictions.
The Napoleonic Code of Criminal Instruction, adopted in France in 1808 and inspiring many similar codes in civil law countries, made it compulsory that the defendant should have a lawyer when tried in the assize courts (which judged severe crimes).
In the United Kingdom
England and Wales
Before the Prisoners' Counsel Act 1836, felony defendants did not have the formal right of being represented by a counsel in English courts although, from the mid-18th century such had been routinely indulged where defendants could afford them. It was thought, at the time, that the presence of defence counsel would serve no purpose in criminal proceedings, where what matters is deciding fact: the defendant should simply tell the truth to the court, without the interference of some counsel. William Hawkins in his A Treatise of the Pleas of the Crown: or a system of the principal matters, relating to that subject, digested under their proper heads Vol. II. of 1721 wrote:
- "[I]t requires no manner of Skill to make a plain and honest Defence, which ... is always the best; the Simplicity and Innocence, artless and ingenuous Behaviour of one whose Conscience acquits him, having something in it more moving and convincing than the highest Eloquence of a Person speaking in a cause not their own."
This changed as more and more prosecutions became, for reasons of public policy, funded by the Crown – all successful prosecutions from 1778 onwards being so funded – who employed professional counsel. An innate sense of fair-play prevailed therefore, permitting defence counsel to be present, albeit at the defendant’s own expense. Penurious defendants were obviously at a significant disadvantage.
In the United States
The Sixth Amendment to the United States Constitution provides:
- In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.
The assistance of counsel clause includes, as relevant here, five distinct rights: the right to counsel of choice, the right to appointed counsel, the right to conflict-free counsel, the effective assistance of counsel, and the right to represent oneself pro se.
A defendant does not have a Sixth Amendment right to counsel in any civil proceeding, including a deportation hearing (even though deportability is often a collateral consequence of criminal conviction). However, as described below, there are certain civil proceedings where parties have a right to appointed counsel; such a right is pursuant to the Fourteenth Amendment's due process or equal protection clause, a state constitution's due process or equal protection clause, or a federal/state statute.
- Choice of counsel
Subject to considerations such as conflicts of interest, scheduling, counsel's authorization to practice law in the jurisdiction, and counsel's willingness to represent the defendant (whether pro bono or for a fee), criminal defendants have a right to be represented by counsel of their choice. The remedy for erroneous deprivation of first choice counsel is automatic reversal.
- Appointment of counsel
A criminal defendant unable to retain counsel has the right to appointed counsel at the government's expense. While the Supreme Court recognized this right gradually, it currently applies in all federal and state criminal proceedings where the defendant faces authorized imprisonment greater than one year (a "felony") or where the defendant is actually imprisoned.
Criminal defendants do not have a right to appointed counsel if they are not sentenced to actual imprisonment, and could not have been sentenced for more than one year, even if that conviction is later used to enhance sentencing for another crime, or even if the revocation of probation may result in actual imprisonment (although for parole revocation, the court evaluates the right to counsel on a case-by-case-basis). Nor does the defendant have the right to appointed counsel to raise frivolous arguments on direct appeal, or to raise any arguments on habeas or other collateral appeal, even if facing execution.
With respect to federal law on civil proceedings, there is a constitutional right to counsel for juveniles in delinquency proceedings, and there is a right to "qualified and independent assistance" (although not necessarily an attorney) for prisoners involuntarily transferred to a mental health facility. The federal constitutional right to appointed counsel in termination of parental rights proceedings is on a case-by-case basis. For civil contempt proceedings related to failure to pay child support, the U.S. Supreme Court has said there is no federal constitutional right to counsel even if the litigant is being jailed, provided that all of the following is true: a) the state is providing sufficient procedural safeguards to ensure the person actually has the ability to pay but is refusing to do so; b) the matter is not "unusually complex"; and c) the plaintiff is neither the government nor represented by counsel. Federal statutory law provides for a right to counsel in certain types of federal court proceedings, such as civil forfeiture of a primary residence or proceedings involving those in active military service.  Finally, all states provide a right to counsel by either statute, court decision, or court rule in at least some civil proceedings, with the most commonly covered proceedings being termination of parental rights, abuse/neglect, civil commitment, paternity, and civil contempt. The state court decisions can be based on interpretation of either the federal or state constitution, and under basic principles of federalism, a state court can grant more rights under its state constitution than the Supreme Court has recognized under the federal constitution.
- Conflict-free counsel
Whether counsel is retained or appointed, the defendant has a right to counsel without a conflict of interest. If an actual conflict of interest is present, and that conflict results in any adverse effect on the representation, the result is automatic reversal. The general rule is that conflicts can be knowingly and intelligently waived, but some conflicts are unwaivable.
- Ineffective assistance of counsel
In Strickland v. Washington (1984), the Court held that, on collateral review, a defendant may obtain relief if the defendant demonstrates both (1) that defense counsel's performance fell below an objective standard of reasonableness (the "performance prong") and (2) that, but for the deficient performance, there is a reasonable probability that the result of the proceeding would have been different (the "prejudice prong").
To satisfy the prejudice prong of Strickland, a defendant who pleads guilty must show that, but for counsel's deficient performance, they would not have pled guilty. In Padilla v. Kentucky (2010), the Court held that counsel's failure to inform an alien pleading guilty of the risk of deportation fell below the objective standard of the performance prong of Strickland and permitted an alien who would not have pled guilty but for such failure to withdraw his guilty plea.
- Pro se representation
In Faretta v. California (1975), the Court held that a criminal defendant has the right to knowingly and voluntarily opt for pro se representation at trial. This right is not per se violated by the appointment of standby counsel. There is no constitutional right to self-representation on appeal.
- Elkins, Zachary, Tom Ginsburg, and James Melton. 2013. Constitute: The World's Constitutions to Read, Search, and Compare. https://www.constituteproject.org/
- The Globe and Mail, "No right to counsel during interrogation: top court", Kirk Makin, 8 October 2010 (accessed 10-10-10)
- Code d'instruction criminelle, 1808, Article 294. "L'accusé sera interpellé de déclarer le choix qu'il aura fait d'un conseil pour l'aider dans sa défense ; sinon le juge lui en désignera un sur-le-champ, à peine de nullité de tout ce qui suivra. Cette désignation sera comme non avenue, et la nullité ne sera pas prononcée, si l'accusé choisit un conseil."
- "U.S. Const. amend. VI.". Bill of Rights Transcript Text. The U.S. National Archives and Records Administration. Retrieved 24 August 2012.
- INS v. Lopez-Mendoza, 468 U.S. 1032 (1984); Bridges v. Wixon, 326 U.S. 135 (1945).
- National Coalition for a Civil Right to Counsel, http://www.civilrighttocounsel.org
- Wheat v. United States, 486 U.S. 153 (1988).
- Morris v. Slappy, 461 U.S. 1 (1983).
- United States v. Gonzalez-Lopez, 548 U.S. 140 (2006).
- In chronological order, Powell v. Alabama, 287 U.S. 45 (1932) ("special circumstances" in capital cases); Johnson v. Zerbst, 304 U.S. 458 (1938) (all federal cases); Betts v. Brady, 316 U.S. 455 (1942) (“special circumstances” in non-capital cases); Hamilton v. Alabama, 368 U.S. 52 (1961) (all capital cases); Gideon v. Wainwright, 372 U.S. 335 (1963) (all felony cases), overruling Betts, 316 U.S. 455; Argersinger v. Hamlin, 407 U.S. 25 (1972) (all actual imprisonment); Alabama v. Shelton, 535 U.S. 654 (2002) (suspended sentences).
- Scott v. Illinois, 440 U.S. 367 (1979).
- Nichols v. United States, 511 U.S. 738 (1994), overruling Baldasar v. Illinois, 446 U.S. 222 (1980).
- Gagnon v. Scarpelli, 411 U.S. 778 (1973).
- Anders v. California, 386 U.S. 738 (1967); Penson v. Ohio, 488 U.S. 75 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 (1988); Smith v. Robbins, 528 U.S. 259 (2000).
- Pennsylvania v. Finley, 481 U.S. 551 (1987).
- Murray v. Giarratano, 492 U.S. 1 (1989).
- In re Gault, 387 U.S. 1 (1967)
- Vitek v. Jones, 445 U.S. 480 (1980)
- Lassiter v. Dep't of Soc. Servs., 452 U.S. 18 (1981)
- Turner v. Rogers, 131 S. Ct. 2507 (2011)
- National Coalition for a Civil Right to Counsel, http://civilrighttocounsel.org/major_developments?jurisdiction=federal
- National Coalition for a Civil Right to Counsel state status map, http://civilrighttocounsel.org/map; John Pollock, 'The Case Against Case-By-Case: Courts Identifying Categorical Rights to Counsel in Basic Human Needs Civil Cases', 61 Drake L.J. 763 (Spring 2013); Laura Abel and Max Rettig, 'State Statutes Providing for a Right to Counsel in Civil Cases', 40 Clearinghouse Rev. J. of Poverty L. and Pol'y 245 (2006); Clare Pastore, 'Life After Lassiter: An Overview of State-Court Right-to-Counsel Decisions, 40 Clearinghouse Rev. J. of Poverty L. and Pol'y 186 (2006).
- American Constitution Society, 'Why State Constitutions Matter'
- Burger v. Kemp, 483 U.S. 776 (1987); Cuyler v. Sullivan, 446 U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475 (1978).
- See United States v. Curcio, 680 F.2d 881 (2d Cir. 1982).
- See, e.g., United States v. Schwarz, 283 F.3d 76 (2d Cir. 2002); United States v. Fulton, 5 F.3d 605 (2d Cir. 1993).
- Strickland v. Washington, 466 U.S. 668 (1984).
- Hill v. Lockhart, 474 U.S. 52 (1985).
- Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
- Faretta v. California, 422 U.S. 806 (1975).
- McKaskle v. Wiggins, 465 U.S. 168 (1984).
- Martinez v. California Court of Appeals, 528 U.S. 152 (2000).