Right to Counsel and the 6th 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.


Right to (Effective) Counsel

Critical Stages When Right to Counsel is Required

Right to counsel has been deemed so important by the Court that it's required under many circumstances after adversarial proceedings begin.

  1. It is automatically triggered by the persecution of the defendant and does not depend on the defendant's request for a lawyer (Brewer v. Williams).

  2. Right to counsel attaches at all post-indictment pretrial lineups (US v. Wade),

  3. Preliminary hearings (Coleman v. Alabama),

  4. Post-indictment interrogations (Massiah v. US),

  5. Arraignments (Hamilton v. Alabama),

  6. At the defendant's first appearance before a judicial officer after a formal charge is made, regardless of whether a prosecutor is present (Rothgery v. Gillespie County),

  7. At the first appeal of right (Douglas v. California),

  8. At the first-trier of discretionary appeals (Halbert v. Michigan), and

  9. When appealing so that counsel may check if there are any non-frivolous issues in the record (Anders v. California)

When there is no Right to Counsel

Despite the immense importance of having a right to counsel, there is no right to counsel for second-trier discretionary state appeals or petitions for review to the US Supreme Court (Ross v. Moffitt), parole hearings or probation revocation hearings (Gagnon v. Scarpelli), or civil matters such as habeas corpus proceedings (Pennsylvania v. Finley).

Right to Counsel During Sentencing

All felony and misdemeanor cases give a defendant a right to counsel if a sentence of incarceration is actually imposed (Argersinger v. Hamlin), including when the defendant received a suspended sentence and later was incarcerated for a probation violation (Alabama v. Shelton).

Right to Counsel when Fined

Courts may impose fines regardless of whether the defendant was represented by counsel (Argersinger).

Being a Lawyer is not Enough to be Counsel

A person who happens to be a lawyer being present at trial alongside the accused is not enough to satisfy the constitutional command of the 6th amendment (Strickland v. Washington).

Demonstrating Ineffective Counsel

To demonstrate ineffective counsel, the defendant must first show that the counsel's performance was deficient by showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the 6th amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that the counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose results are reliable. The ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged (Strickland v. Washington). As a point of policy, courts presume the attorney offered adequate representation, because they don't want to encourage clients picking at every potential minor infraction and thereby clog the courtrooms with frivolous suits.

Evaluating Attorney Performance

The proper measure of attorney performance remains simply reasonableness under prevailing professional norms and considering all the circumstances (Strickland v. Washington).

Evaluating Attorney Prejudice

Prejudice is presumed when counsel is burdened by an actual conflict of interest (Cuyler v. Sullivan). Prejudice may also be presumed when either (1) there has been a complete denial of counsel, or 2) "if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing" (Cronic).

When Right to Counsel Begins

Sixth amendment rights do not attach with officer comments like "You're under arrest" and "We're going to charge you with [insert charges]."

Magic Words

Sixth amendment rights attach with preliminary hearings, indictments, information, and arraignments.