The right to an attorney is guaranteed by which amendment

Abstract

The incorporation of the right to counsel into the Constitutional amendments reflected the desire to correct the inadequacies of the English criminal justice system of the 17th century, in which the right to counsel was not granted to all accused persons. In the Gideon v. Wainwright decision in 1963, the United States Supreme Court held that the Sixth Amendment right to counsel is incorporated into the Fourteenth Amendment and is therefore binding on both Federal and State courts. Further decisions established guidelines regarding the constitutional right to counsel at different phases of criminal proceedings. The Supreme Court has also recognized that certain judicial actions amount to a denial of the right to counsel and require declaration of a mistrial or reversal of a conviction. Likely future issues relate to the asset forfeiture provisions of recent Federal laws, the right to counsel of choice, and the effectiveness of the assistance of counsel. 149 references.

It was 11 p.m. when 24-year-old Jimmy was arrested. He was wearing black jeans, a black t-shirt, and a black hoodie when the police pulled up in their squad car, started asking him questions, and then cuffed him and read him his Miranda Rights.

"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense."

Police said Jimmy's image was caught on closed-circuit TV as he struck an elderly pedestrian on the back of his head and stole his wallet. Jimmy said they have the wrong guy and that he was just in the wrong place at the wrong time.

Jimmy, who has $300 to his name, now faces serious charges. He could be going to prison if he is convicted, but he loudly proclaims he is innocent. He has no resources to fight this fight . . . except for the Sixth Amendment of the U.S. Constitution.

What Does the Sixth Amendment Guarantee?

Access to a criminal defense lawyer is the most well-known aspect of the Sixth Amendment. This right to legal counsel is so important that there is an associated right given to people who are unable to pay for legal assistance: the right to have counsel appointed and paid for by the government.

The right to counsel at government expense does not apply in criminal cases in which only a fine is the penalty. The accused must face a risk of imprisonment to qualify for a defense attorney at state expense.

Civil cases, even very serious ones like home foreclosure or removal from the country, are not covered by the Sixth Amendment.

Both federal and state criminal justice systems have procedures for appointing legal counsel for indigent defendants. Two different approaches are common:

• A judge can appoint, when needed, a defense attorney who is in private practice
• A judge can appoint a dedicated public defender who is employed by the state or the federal government.

The government pays for a criminal defense lawyer if an indigent defendant could be facing imprisonment. The U.S. Supreme Court has held that all defendants facing imprisonment must have the right to an attorney, regardless of whether the charges are felony or misdemeanors, so long as there is a possibility of some jail time. Whether the prosecution is seeking a weekend in the county jail or twenty years in prison, the defendant is entitled to have a lawyer.

When Does the Sixth Amendment Right to Counsel Apply?

A court-appointed lawyer can act on behalf of the defendant before, during, and after the trial. The critical stages of a criminal proceeding for which the Sixth Amendment guarantees the right to legal counsel include:

• The interrogation phase of a criminal investigation
• Pretrial proceedings
• The trial
• The sentencing hearing
• At least an initial appeal of any conviction

The Process for Appointing Counsel for Indigent Defendants

Before a defendant can have a lawyer appointed for them, a judge must decide if they qualify as indigent (to poor to hire their own attorney). The judge may review documentation of the accused person's income, expenses, and available financial resources, or they may take the defendant's word about their financial position. (For example, a homeless person may lack financial documentation.)

The judge will determine whether the defendant meets state or federal guidelines for indigence. (Some states will partially reimburse for counsel if the defendant has some limited ability to pay.)

An attorney will then be appointed at the defendant's first court appearance. For most defendants, the first court appearance is an arraignment or a hearing to set bail.

Court-Appointed Lawyer

No, an accused person can waive their right to a free, government-appointed attorney. They can hire their own attorney, or they can choose to represent themselves.

Additional Sixth Amendment Rights

While the right to a court-appointed attorney is undoubtedly the most well-known guarantee of the Sixth Amendment, thanks to the many police procedurals on TV, there are other vital rights afforded the accused under this amendment.

These rights include:

• The right to trial by an impartial and unbiased jury (in most cases).
• The right to a speedy trial.
• The right to notice of charges.
• The jury to hear the witnesses and see the evidence against you. (There may be other evidence which the judge has determined to be inadmissible in court for one reason or another. The jury never sees or hears this evidence.)
• The right to be present at the trial and while the jury is hearing the case.
• The right to see, hear, and question the witnesses against you.
• The right to call witnesses and to have the court issue subpoenas to compel witnesses to appear.
• The right to testify for oneself in court, should one choose to do so.

These rights, along with the protections of the Fourth, Fifth, Eighth, and Fourteenth Amendments, are intended to ensure that defendants receive a fair trial.

What Can Happen if a Sixth Amendment Right is Violated?

Typically, all defendants will have access to a criminal defense lawyer but , that is not necessarily enough to satisfy Sixth Amendment rights. It is not enough for the court to appoint and pay for a defense lawyer; the lawyer must be competent to handle that type of case. Claims of ineffective assistance of counsel are common from those appealing a conviction. Basically, these litigants argue that they only lost their cases because their attorneys were not adequate.

When a lawyer is not competent, the defendant is deprived of a fair trial. Defendants who appeal on this ground have to show that their attorney made enough mistakes or was unable to spend enough time on the case to be a competent advocate.

Assert Your Sixth Amendment Rights: Consult with an Attorney

The right to counsel in a criminal trial is so important that is is enshrined in the Bill of Rights. While this constitutional right to counsel only applies once an interrogation phase begins, nothing prevents you from speaking to a lawyer before that point.

In fact, the earlier you have a lawyer, the more opportunities you will have to favorably shape your case for trial. Get started today. Contact an experienced criminal defense lawyer near you.

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