Amendment 6 — Modern Doctrine On Right To Have Counsel Appointed

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Sixth Amendment :

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.

Starting in 1938, the Supreme Court recognized that in federal courts the Sixth Amendment requires the provision of counsel absent waiver.[1](https://www.law.cornell.edu/constitution-conan/amendment-6/modern-doctrine-on-right-to-have-counsel-appointed#fn1amd6 " Johnson v. Zerbst, 304 U.S. 458, 463 (1938) ( “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.” (footnote omitted)); see Gideon v. Wainwright, 372 U.S. 335, 339–40 (1963) ( “We have construed [the Sixth Amendment] to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived.” ); see also Johnson v. United States, 352 U.S. 565, 566 (1957) (holding that a federal Court of Appeals “must, under Johnson v. Zerbst, afford one who challenges [the appeal certification] the aid of counsel unless he insist on being his own.” ); Douglas v. California, 372 U.S. 353, 356 (1963) (holding that a state must provide counsel to defendant granted a right of first appeal from a criminal conviction); but see Ross v. Moffitt, 417 U.S. 600, 619 (1974) (holding that defendants had no constitutional right to an appointment of counsel for discretionary appellate review); Murray v. Giarratano, 492 U.S. 1, 9–13 (1989) (holding that inmates sentenced to death do not have a constitutional right to counsel to seek postconviction relief).. ") For state proceedings, however, the Court instead determined that the scope of the right to have counsel appointed stemmed from the Due Process Clause of the Fourteenth Amendment ,[2](https://www.law.cornell.edu/constitution-conan/amendment-6/modern-doctrine-on-right-to-have-counsel-appointed#fn2amd6 " Betts v. Brady, 316 U.S. 455, 461–62 (1942), overruled by Gideon, 372 U.S. at 342. ") and the applicability of the right depended on the circumstances facing the accused in a given case.[3](https://www.law.cornell.edu/constitution-conan/amendment-6/modern-doctrine-on-right-to-have-counsel-appointed#fn3amd6 " This circumstance-dependent approach is typified by Powell v. Alabama, 287 U.S. 45, 71 (1932); see also Hawk v. Olson, 326 U.S. 271, 278 (1945) (reviewing underlying circumstances and holding that “denial of opportunity to consult with counsel on any material step after indictment or similar charge and arraignment violates the Fourteenth Amendment” ); Tomkins v. State of Missouri, 323 U.S. 485, 488 (1945) (citing Powell and reviewing underlying circumstances of prosecution to determine if accused’s deprivation of counsel violated Fourteenth Amendment); Williams v. Kaiser, 323 U.S. 471, 473–76 (1945) (same). For additional discussion of Powell, see . ") The purpose behind examining the circumstances facing the accused was to afford some certainty in the determination of when failure to appoint counsel would result in a trial lacking in “fundamental fairness.” [4](https://www.law.cornell.edu/constitution-conan/amendment-6/modern-doctrine-on-right-to-have-counsel-appointed#fn4amd6 " See Betts, 316 U.S. at 462 ( “Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.” ). ") Over time, the Court developed three often-overlapping categories of circumstances that required the furnishing of assistance of counsel to satisfy due process: (1) where the personal characteristics of the defendant made it unlikely he could obtain an adequate defense of his own,[5](https://www.law.cornell.edu/constitution-conan/amendment-6/modern-doctrine-on-right-to-have-counsel-appointed#fn5amd6 " Commonly cited characteristics of the defendant demonstrating the necessity for assistance of counsel included youth and immaturity (Moore v. Michigan, 355 U.S. 155, 164 (1957); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 120–21 (1956); Uveges v. Pennsylvania, 335 U.S. 437, 442 (1948); Wade v. Mayo, 334 U.S. 672, 683–84 (1948); Marino v. Ragen, 332 U.S. 561, 562 (1947) (per curiam); De Meerleer v. Michigan, 329 U.S. 663, 665 (1947) (per curiam), limited education (Moore, 355 U.S. at 164), inexperience (Uveges, 335 U.S. at 442), and mental illness (Massey v. Moore, 348 U.S. 105, 108 (1954); Palmer v. Ashe, 342 U.S. 134, 136–37 (1951). ") (2) where the charges or possible defenses to the charges were technically complex,[6](https://www.law.cornell.edu/constitution-conan/amendment-6/modern-doctrine-on-right-to-have-counsel-appointed#fn6amd6 " E.g., McNeal v. Culver, 365 U.S. 109, 114–16 (1961); Moore, 355 U.S. at 160; Claudy, 350 U.S. at 122; Williams v. Kaiser, 323 U.S. 471, 474–75 (1945); Rice v. Olson, 324 U.S. 786, 789 (1945). ") and (3) where events occurring at trial raised problems of prejudice.[7](https://www.law.cornell.edu/constitution-conan/amendment-6/modern-doctrine-on-right-to-have-counsel-appointed#fn7amd6 " Commonly cited examples included the deliberate or careless overreaching by the court or the prosecutor (Palmer, 342 U.S. at 137; Gibbs v. Burke, 337 U.S. 773, 776–78 (1949); Townsend v. Burke, 334 U.S. 736, 739–741 (1948); White v. Ragen, 324 U.S. 760, 764 (1945) (per curiam), prejudicial developments during the trial (Cash v. Culver, 358 U.S. 633, 637–38 (1959); Gibbs, 337 U.S. at 776–78), and questionable proceedings at sentencing (Townsend, 334 U.S. at 739–741). ") The last characteristic especially had been used by the Court to set aside convictions occurring in the absence of counsel,[8](https://www.law.cornell.edu/constitution-conan/amendment-6/modern-doctrine-on-right-to-have-counsel-appointed#fn8amd6 " In the 1960 case Hudson v. North Carolina the Court 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. 363 U.S. 697, 702–03 (1960). The Hudson Court explained that a “layman would hardly be aware of the fact that he was entitled to any protection from the prejudicial effect of a codefendant’s plea of guilt” and would not “know the proper course to follow in order to invoke such protection.” Id. at 1318. According to the Court, the “very uncertainty of the North Carolina law in this respect serves to underline the petitioner’s need for counsel to advise him.” Id. Two years after Hudson, the Court reversed a conviction because the unrepresented defendant failed to follow various advantageous procedures that a lawyer might have utilized. Carnley v. Cochran, 369 U.S. 506, 508–512 (1962). The same year, the Court 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. Chewning v. Cunningham, 368 U.S. 443, 445–47 (1962). ") and the last case rejecting a claim of denial of assistance of counsel had been decided by 1950.[9](https://www.law.cornell.edu/constitution-conan/amendment-6/modern-doctrine-on-right-to-have-counsel-appointed#fn9amd6 " Quicksal v. Michigan, 339 U.S. 660, 666 (1950); see also Canizio v. New York, 327 U.S. 82, 86–7 (1946); Foster v. Illinois, 332 U.S. 134, 138–39 (1947); Gayes v. New York, 332 U.S. 145, 148–49 (1947) (plurality opinion); Bute v. Illinois, 333 U.S. 640, 675–76 (1948); Gryger v. Burke, 334 U.S. 728, 730–31 (1948); Cf. White, 324 U.S. at 764, 767 (1945) (acknowledging prima facie showing of constitutional violation stemming from lack of counsel but ultimately dismissing certiorari on other grounds). ")

In 1961, the Court held that in a capital case a defendant need not establish a particularized need or prejudice resulting from absence of counsel.[10](https://www.law.cornell.edu/constitution-conan/amendment-6/modern-doctrine-on-right-to-have-counsel-appointed#fn10amd6 " See Hamilton v. Alabama, 368 U.S. 52, 55 (1961) ( “When one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted.” ). ") Rather, the Court concluded that assistance of counsel was a constitutional requisite in capital cases, although the Court did not expressly articulate whether its holding was based on the Sixth Amendment or the Due Process Clause of the Fourteenth Amendment .[11](https://www.law.cornell.edu/constitution-conan/amendment-6/modern-doctrine-on-right-to-have-counsel-appointed#fn11amd6 " Id. ") Two years later, the Court expanded the right to counsel in non-capital cases as well, holding unanimously in Gideon v. Wainwright[12](https://www.law.cornell.edu/constitution-conan/amendment-6/modern-doctrine-on-right-to-have-counsel-appointed#fn12amd6 " 372 U.S. 335 (1963). ") “that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” [13](https://www.law.cornell.edu/constitution-conan/amendment-6/mode