Introduction

When Counsel Must Be Provided

Introduction

The Sixth Amendment provides that "In all criminal prosecutions, the accused shall enjoy the right" to a list of protections, and the last item on that list is "the Assistance of Counsel for his defence."¹ Two gatekeeping questions must be answered before anyone asks what a lawyer is actually required to do for a client. The first is timing. The right belongs to an "accused" in a "criminal prosecution," so it exists only once a prosecution has begun. Lawyers describe that moment by saying the right attaches, meaning it becomes operative in the particular case. The second is entitlement: whether a defendant who cannot afford a lawyer must be given one at public expense, and whether the answer changes with the seriousness of the offense and the sentence the defendant faces.

The second question gets most of the attention because the first half of the problem is uncontroversial. A defendant who can pay may hire a lawyer and have that lawyer present at every stage, a practice that predates the Constitution and that the Court recognized as a requirement of due process when the issue reached it in the twentieth century.² The harder issue is the defendant who cannot pay, a group that makes up perhaps 80% of federal defendants and most of those prosecuted by the states.³ The amendment's text says nothing about who foots the bill, and Justice Scalia, dissenting in Padilla v. Kentucky, described the original understanding as a right to employ counsel or to use volunteered services, with government-paid counsel a later judicial addition.⁴ That addition came in Gideon v. Wainwright, which held that the Sixth Amendment, applied to the states through the Fourteenth, entitles indigent felony defendants to appointed counsel, the lawyer the government selects and pays for them.⁵ Section 2 takes up that holding and how far down the scale of offenses it reaches. On the federal side, Federal Rule of Criminal Procedure 44(a) puts appointment into practice by entitling a defendant who is unable to obtain counsel to an appointed lawyer at every stage from initial appearance through appeal, unless the defendant waives the right.⁶ A fuller look at that rule follows the constitutional cases.

The timing question comes first because police investigate before the government prosecutes. A person stopped on the street and questioned about a crime stands in a different legal position from a defendant standing before a judge who is told the accusation and learns that liberty is now subject to conditions, even though the underlying events may be identical. The first task, then, is to locate the moment an investigation turns into a prosecution, since the Sixth Amendment right depends on that moment. With that line drawn, the chapter turns to entitlement: who must receive a lawyer at public expense, in felony and misdemeanor cases, and how Rule 44 carries the answer into federal practice. The first section therefore asks when the right attaches.