5.9 Courtroom Workgroup: Defense Attorneys
Lore Rutz-Burri and Chantel Chauvin
The Sixth Amendment to the U.S. Constitution provides that “the accused shall enjoy the right…to have the Assistance of Counsel for his defense.” Most state constitutions have similar provisions. Historically, the right to counsel meant that the defendant, if they could afford to hire an attorney, could have an attorney’s assistance during their criminal trial. This right has developed over time and now includes the right to have an attorney’s assistance at all critical stages in the process, or at all criminal proceedings that may substantially affect the rights of the accused. Importantly, the right to the assistance of a defense counsel has been held to require that the state pay the costs of the defense counsel when a person is indigent or has insufficient financial resources to pay. The two basic types of defense attorneys – privately-retained and appointed – are described in the gray boxes below.
Privately-Retained Defense Attorneys
Individuals accused of any infraction or crime, no matter how minor, have the right to hire counsel and have them appear with them at trial. The attorney must be recognized as qualified to practice law within the state or jurisdiction, and generally, criminal defendants would do well to hire an attorney who specializes in criminal defense work. However, because many criminal defendants don’t have enough money to hire an attorney to represent them, the court will need to appoint an attorney to represent them in criminal cases.
Appointed Counsel
Federal and state constitutions do not mention what to do when the defendant wants but cannot afford an attorney’s representation. Initially, the Court interpreted the Sixth Amendment as permitting defendants to hire an attorney who would assist them during the trial. Later, the Court held that the Due Process Clauses of the Fifth and Fourteenth Amendment includes the right to a fair trial, and a fair trial includes the right to the assistance of counsel. In Powell v. Alabama (1932), the Court concluded that the focus on trial was too narrow. It stated, “[T]he most critical period of the proceeding[s] against the defendants might be that period from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation, and preparation are vitally important. Defendants are as much entitled to . . . [counsel’s] aid during that period as at the trial itself” (Powell v. Alabama, 1932).
Between Powell (1932) and the case of Gideon v. Wainwright (1963), the Court decided when the appointment of counsel was necessary for a fair trial in state prosecutions on a case-by-case basis. In Gideon, however, the Court held that this case-by case-approach was inappropriate. It held that the state had to provide poor defendants access to counsel in every state felony prosecution. Lawyers in serious criminal cases, it said, were “necessities, not luxuries”. Since Gideon,