THE RIGHT TO COUNSEL
The right to counsel is guaranteed by the Sixth Amendment to the Constitution. It provides for counsel in phases of a criminal proceeding for anyone who cannot afford one. This wasn’t always the case. Early colonial days did not allow defendants the opportunity to hire their own attorney nor was one appointed. This right has been earned in incremental stages involving several precedent cases. Those cases include Powell v. Alabama, 287 U.S. 45 (1932), Johnson v. Zerbst, 304 U.S. 458 (1938), Gideon v. Wainwright, 372 U.S. 335 (1963), Argersinger v. Hamlin, 407 U.S. 321 (1972), and United States v. Wade, 388 U. S. 218 (1967). Today, counsel is guaranteed in all phases of critical pretrial events. Counsel is also guaranteed during post-trial sentencing procedures and in a first appeal to a conviction ensuring the presence, expert advice, and assistance at all stages of a prosecution (Kanovitz, 2010, p. 409). In the early founding of this country, the colonies used common law brought over from England which prevented serious offenders from obtaining counsel even at their own expense (Right to Counsel Clause). Some attorneys, out of the kindness of their heart and others for self-serving purposes, would lend their services freely and other times the public would pay. This pattern continued until the Revolutionary war at which time the practice of hiring one’s own representation was well practiced. The right of counsel was secured in the Sixth Amendment. The Sixth Amendment gave the right to counsel but only people who could afford an attorney could hire one. Thus, a large population of people was left to defend themselves at a great disadvantage for many of them were uneducated or had other issues that prevented them from getting a fair trial. The first major incremental case to impact the right to counsel was Powell v. Alabama, 287 U.S. 45 (1932). In Powell, the court recognized that poor and illiterates were not receiving a fair trial which under the Fourteenth Amendment due process clause was guaranteed to prevent government from depriving life, liberty, and property. Justice Sutherland in his discussion on the relationship between due process and a fair trial stated: What, then, does a hearing include? Historically and in practice, in our own country, at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. 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 crime, 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 has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense (Id. at 68 – 69). Up to this point, the right to counsel was limited to those who could afford counsel in federal cases. This case extended the right to counsel to the indigent and illiterate population in state capitol offenses...
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