The Sixth Amendment to the U.S. Constitution provides, among other things, that ‘‘in all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defence.’’ The scope and nature of that right have been defined in a series of cases decided by the U.S. Supreme Court.
In Betts v. Brady, 316 U.S. 455 (1942), the Supreme Court was asked to decide whether the Sixth Amendment right to counsel, which applies only to the federal courts, is a ‘‘fundamental right.’’ If the right were found to be fundamental, then it would be applicable to the states under the due process clause of the Fourteenth Amendment. That clause prohibits the states from depriving their citizens of life, liberty, or property ‘‘without Due Process of law.’’ The Court held that the right to counsel was not a fundamental right, and therefore did not have to be honored by the state courts. In Betts, the defendant had been charged with robbery. Because he could not afford to pay for a lawyer he asked the court to appoint a lawyer for him. The judge refused, because in that county lawyers were only appointed at state expense for defendants charged with murder or rape. The defendant pled not guilty and chose to be tried by a judge alone, without a jury. He called some witnesses in his own defense to assert an alibi, and he cross-examined the state’s witnesses. The judge found him guilty and sentenced him to eight years in prison.
The defendant brought a federal habeas corpus petition, which is the way a defendant convicted in state court can have the federal courts review that conviction under the federal Constitution. In his petition, the defendant argued that he had been deprived of federal due process of law by the court’s refusal to appoint a lawyer for him, but the petition was denied. On appeal to the Supreme Court, the Court upheld the decisions of the lower courts. The Court traced the history of the right to counsel in the constitutions of the original thirteen colonies and found great diversity in the treatment of the right to counsel. It found that the right had not been treated as a fundamental one that would have to be observed by the state courts but rather was provided to allow a defendant to appear by counsel instead of by himself. That is, the Court believed that the Sixth Amendment did not require a state ever to appoint an attorney at state expense. The Court also examined colonial statutes and found great diversity in treatment of the right. Finally, it examined the constitutions currently in force in the states and found that the issue was largely dealt with by statute and not as a constitutional issue. Thus, based on history and prevalence, the Court held that the refusal to appoint counsel for an indigent charged with a felony did not violate the ‘‘fundamental fairness’’ required by the due process clause.
Moreover, the Court held, under the facts of the case, the court’s refusal to give the defendant a lawyer did not deprive him of due process since he did a good enough job on his own. Betts waived a trial by jury, put forth an alibi defense, and cross-examined the state’s witnesses. The Court held that under the facts and circumstances of the case, the absence of a lawyer was not ‘‘so offensive to the common and fundamental ideas of fairness.’’
Justice Black, joined by Justices Douglas and Murphy, dissented. The dissenters would have held that the right to counsel is fundamental, that is, that the practice of trying a defendant charged with a serious crime without counsel ‘‘cannot be reconciled with common and fundamental ideas of fairness and right.’’ The dissenters pointed to the fact that at that point in time thirty-five states had some ‘‘clear legal requirement or an established practice’’ that indigent defendants in serious noncapital cases be provided with lawyers when requested.