The following paper is meant to explain what Right to Council is, where it comes from, and how it should be used. While some may believe that, the Constitution is a “fluid” document and as such able to be interpreted to mean whatever the judge now wants I am of the mind that the first Ten Amendments were written and meant specifically to keep citizens of this great nation free. As with everything that I write, I will attempt to remain within the boundaries outlined by the Constitution. In the case we will be looking in depth at the Right to Council which is a right enumerated in the Sixth Amendment as well.
The Right to Council in the United States originated when the Sixth Amendment was ratified December 15, 1791. This amendment states the following.
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. (Amendment 6, 2009)
The last part clearly states the right to have the Assistance of Counsel for his defense.
This was reaffirmed in part in Powell v. State of Alabama (1932) “The legislature has become so thoroughly convinced of the impropriety and injustice of shackling and restricting a prisoner with respect to his defence, that they have abolished all those odious laws, and every person when he is accused of a crime, is entitled to every possible privilege in making his defence, and manifesting his innocence, by the instrumentality of counsel, and the testimony of witnesses.”
In addition, in another court ruling we see the following.
“We concluded that certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safeguarded against state action by the due process of law clause of the Fourteenth Amendment, and among them the fundamental right of the accused to the aid of counsel in a criminal prosecution.”
(Grosjean v. American Press Co.1936).
Lastly, we have one of the most well known of the cases affirming the right to counsel with Gideon v. Wainwright (1963.) “The right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner’s trial and conviction without the assistance of counsel violated the Fourteenth Amendment.” As can be easily seen current, court rulings reaffirm the Sixth Amendment rights of the accused to the Assistance of Counsel, otherwise known as Right to Counsel. The Gideon v. Wainwright ruling however brought another aspect of Constitutional law into play with its statement regarding the 14th amendment.
This aspect can in fact force courts to look at a lack of representation or the lack of allowing representation as a civil rights violation. Obviously, this is not always going to be the case though for the benefit of those who may be unable to make the decision regarding the Right to Counsel Gideon v. Wainwright clarified the necessity of offering this right to the accused. While it is common, practice to offer counsel it is not always necessary to retain it. In fact, for relatively minor violations such as traffic related violations it may be beneficial to simply consult with an attorney or pay the fine depending on what result the outcome will have on your life. Many times in minor cases, one may choose to represent themselves.
Self-Representation is also a right of the accused though it may not be the best choice to pursue. The Honorable Jess H. Dickinson said it best, “I think many lawyers, and judges don’t hear the poor and don’t see their problems because they don’t want to hear them or see them. They don’t want to be reminded of the inconvenient truth that there are many poor, weak, and powerless people falling through the cracks every single day.” (Dickinson, 2007) He said this while addressing a conference of Judges and Attorneys on why the Courts should care about Self-Represented litigants. Many times when someone reserves the right to represent themselves they may find that they are “cut” out of the loop regarding what information is made available individually to them, and in fact they may end up being railroaded by the prosecutor and the justice presiding. It is important that we all understand that it is our right as afforded by the Constitution and legal system in this country that we are afforded equal representation by the Judge and Courts. The author does not recommend self-Representation nor is it recommended by many in the Criminal Justice system however, it is a reality and does occur.
What should we understand regarding the role of attorneys in the Right to Counsel? Defense Attorneys are sworn to defend a litigant to the best of their abilities regardless of actual guilt or innocence. This aspect does not always endear the role of Defense Attorneys to the public especially when obviously guilty persons are released back into the public. However, all of us are afforded this protection and there may be a time when any one of us may need this same defense. The role of Prosecuting Attorneys is to present evidence and convince a jury of a defendant’s guilt. When both of these roles are filled adequately, it helps to ensure that truly equal justice is served to all involved.
In conclusion, we can see that understanding our rights as afforded by the constitution and reaffirmed through various court decisions using the doctrine of stare decisis or Case Law, which means that prior court rulings are to be used as guidelines we are able to have a much more equitable system of justice. However, it should be noted that the doctrine of stare decisis is not necessarily foolproof and in many cases, prior rulings are overturned. It is the opinion of the author however, that the Right to Council is a right that cannot be taken away as it is a Constitutional right.
Amendment 6, (2009). The United states constitution.
Retrieved from http://www.usconstitution.net/const.html#Am6
Dickinson, J. (2007, February 1).
Why Courts should care about self-represented litigants. Retrieved from http://www.ajs.org/prose/South%20Central%20Notebook%20Contents/Pro%20Se%20Speech%20Dickinson.pdf
GIDEON v. WAINWRIGHT, (1963).
U.s. supreme court Gideon v. wainwright, 372 U.S. 335 (1963). Retrieved from
Grosjean v. American Press Co, (1936).
U.s. supreme court grosjean v. American press co., 297 U.S. 233 (1936) 297 U.S. 233. Retrieved from http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=297&invol=233#243
POWELL et al. v. STATE OF ALABAMA. , . (1932).
U.s. supreme court Powell v. state of Ala., 287 U.S. 45 (1932). Retrieved from
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