The Right to Counsel Backdrop

The Right to Counsel Backdrop

The right to choose a lawyer rests on a premise that the counsel guarantees you already know have established: in an adversary system of criminal justice, a lawyer for the accused is a necessity rather than a convenience. This section restates that premise briefly so the choice-of-counsel right has something to attach to. Appointment of counsel and the full critical-stage test are taught in detail elsewhere, so the treatment here is deliberately short.

The Sixth Amendment guarantees the accused the assistance of counsel for his defense in all criminal prosecutions.¹ In Gideon v. Wainwright, a Florida defendant charged with a felony asked the trial court to appoint a lawyer because he had no funds. The court refused because Florida appointed counsel only in capital cases, and he defended himself about as well as a layman could and was convicted.² The Supreme Court held that the counsel guarantee is a fundamental right that the Fourteenth Amendment makes binding on the States, so a state court must supply a lawyer to a defendant who is too poor to hire one.³ The Court's reasoning starts from how the system behaves in practice. Governments spend heavily to hire prosecutors, and defendants who have money hire the best lawyers they can find, which the Court treated as the strongest sign that lawyers in criminal courts are necessities rather than luxuries.⁴

The mechanism behind that conclusion explains why the guarantee matters so much. A layperson cannot tell whether an indictment is sound, does not know the rules of evidence, and can be convicted on inadmissible evidence without ever knowing to object.⁵ A trial pitting a trained prosecutor against an unassisted accused therefore cannot be trusted to produce a fair result, and the same logic is why defendants who can pay almost always do. The point carries forward into the next sections, because the person who hires a lawyer is exercising a choice that only has value if the lawyer's role is as central as this reasoning says.

The guarantee also does not wait for the courtroom. When the Bill of Rights was adopted there were no organized police forces, and the evidence was largely marshaled at trial itself, but today critical confrontations between the accused and the prosecution occur before trial, and their results can settle the accused's fate and reduce the trial to a formality.⁶ In United States v. Wade the accused was exhibited to identifying witnesses at a post-indictment lineup without notice to his lawyer, and the Court held the lineup a critical stage at which counsel's absence violated the Sixth Amendment.⁷ The governing principle is that the accused need not stand alone against the State at any stage of the prosecution, formal or informal, where counsel's absence might derogate from the right to a fair trial.⁸ Coleman v. Alabama applied the same idea to a preliminary hearing: a State need not hold one, but if it does, the hearing is a critical stage, and the Court vacated the convictions of indigent defendants who had no lawyer there and remanded for a harmless-error determination.⁹

Wade also marks where the principle stops. The government's scientific analysis of the accused's fingerprints, blood sample, clothing, or hair is not a critical stage, because the techniques are widely understood and have few variables, so the accused can still confront the results at trial through cross-examination of the government's experts and evidence from his own.¹⁰ The line therefore follows whether the trial can make up for the lawyer's absence. A lab report can be tested later in open court, while a lineup identification may already be fixed in the witness's mind, and the defense may never learn how the lineup was conducted unless a lawyer was watching.

Gideon, Wade, and Coleman all concern whether and when a lawyer must be present. None of them answers a different question, which is who the lawyer is, and Gideon's own language speaks of the person too poor to hire a lawyer. The next section takes up the defendant who can hire one and asks what the Sixth Amendment gives that defendant in choosing.