Right to Counsel

Pre- and Posttrial Proceedings

As recounted in the article on the evolution of the right to counsel (Sixth Amendment), a defendant’s right to retain the services of counsel for trial has always been acknowledged in American courts, but not the right to have counsel regardless of financial ability to procure it. At the beginning of the process of ensuring that further right, the Supreme Court applied it to capital cases in Powell v. Alabama (1932) and declared the period ‘‘from the time of ... arraignment until the beginning of ... trial, when consultation, thoroughgoing investigation and preparation [are] vitally important,’’ to be ‘‘perhaps the most critical period of the proceedings’’ and affirmed that a defendant ‘‘requires the guiding hand of counsel at every step in the proceedings against him.’’ A generation later, as it was concluding the process of ensuring trial counsel for the indigent in all felony cases (Gideon v. Wainwright, 1963) and in misdemeanor cases if prison is imposed (Argersinger v. Hamlin [1972]), the Court also addressed the question of right to counsel in pretrial proceedings.

The two basic issues are the point at which the right to counsel attaches (that is, the point at which the accused is entitled to its protection), and the pretrial events at which it applies. The Court’s initial approach was articulated in United States v. Wade (1967) where, emphasizing that the Constitution guarantees the accused ‘‘the assistance of counsel for his defence,’’ it affirmed that accused persons are entitled to counsel at any critical stage of the proceedings against them, in or out of court—that is, at any proceeding at which the absence of counsel would inhibit his or her ability to provide effective assistance at trial. Wade’s case involved a lineup in which he had been required to appear, and the Court held that to be a critical stage because of the real danger of intentional or unintentional unfairness and an attorney’s consequent need to cross-examine witnesses about the circumstances of their identifications of the defendant as the culprit. The Court significantly narrowed its formulation five years later, however, when it ruled in Kirby v. Illinois (1972) that ‘‘a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him ... whether by way of formal charge, preliminary hearing, indictment, information, or arraignment,’’ because the right is granted ‘‘in all criminal prosecutions’’ and the initiation of formal proceedings is the point at which criminal prosecutions begin. There is thus no right to counsel for a preindictment lineup. Refining this interpretation in United States v. Ash (1973), the Court ruled that since the right to counsel was intended to provide protection at trial, it applies only to those pretrial proceedings that are comparable, and thus does not apply at an out-of-court photo lineup at which the defendant is not present. The right to counsel thus attaches only after the initiation of formal criminal proceedings, and then applies only at adversary proceedings where the accused must confront the forces of the prosecution—even though Justice William J. Brennan (author of the Wade decision) argued that neither criterion is relevant to the determination of a suspect’s need for counsel at pretrial proceedings in order to preserve his or her rights at trial.

Application of these criteria means that the right to counsel applies at some formal pretrial proceedings but not others. It applies at arraignment if rights may be lost there and at preliminary hearings if the accused clearly needs assistance or if the absence of counsel would prejudice the defendant’s rights at trial, but it does not apply at probable cause hearings to determine the legality of a warrantless arrest. The vast majority of defendants strike a plea bargain during the pretrial phase, and the right to counsel for the process of negotiating and entering a plea of guilty is unchallenged. Outside the courtroom, the right applies at lineups if it has attached (that is, adversary proceedings have commenced), but not at grand jury appearances, the taking of handwriting exemplars and various forms of physical evidence from suspects, or photo-identification displays for witnesses. At its discretion, however, the government may permit some form of participation by counsel at such events.

The issue of counsel for pretrial interrogation has been especially contentious. When the right has attached, a suspect cannot be interrogated in the absence of counsel unless that right has been waived. In a controversial decision in 1964, the Supreme Court enforced this rule in a situation where the suspect had no opportunity to consult or waive counsel, as incriminating statements were elicited from him by a former accomplice now functioning as an undercover agent of the state (Massiah v. United States). Several years later, the Court also found a violation of the right to counsel when a vulnerable murder suspect did not waive it but did succumb to a police officer’s suggestion that he should reveal the location of the victim’s body so that she could receive a Christian burial (Brewer v. Williams [1977]). The violation common to both cases was the deliberate elicitation of incriminating information from a suspect by an agent of the state, in the absence of counsel. When an officer or informer makes no effort to elicit information and merely listens, however, suspects have no right to counsel and their statements are admissible against them.

In the same year as Massiah, the Court extended the right to counsel to suspects undergoing interrogation prior to the initiation of formal charges ‘‘when the process shifts from investigatory to accusatory— when its focus is on the accused and its purpose is to elicit a confession’’ (Escobedo v. Illinois [1964]). It soon abandoned that approach, however, in favor of the limited Fifth Amendment right to counsel for custodial interrogation it created in Miranda v. Arizona [1966]).

When the right to counsel does attach, it does so automatically. The government has some control over attachment, however, as it determines the timing of the initiation of adversary proceedings. The Sixth Amendment right is, moreover, offense specific. That is, the fact that a suspect’s right to counsel has attached for one offense does not mean that he or she has that right with respect to other offenses for which formal proceedings have not yet commenced, even if those offenses are closely associated with the one for which the right has attached. The suspect thus has no Sixth Amendment right to counsel for interrogation about such latter offenses (but may assert a Miranda right to counsel and to silence). Once the Sixth Amendment right has attached, it can be waived only by the knowing, intelligent, and voluntary act of the accused.

After trial, Sentencing hearings are also critical stages of the process, and convicted defendants are therefore entitled to appointed counsel if they cannot afford it. Hearings on the revocation of probation or parole, on the other hand, are not deemed adversarial, and there is no guarantee of counsel there unless, as a matter of due process, the absence of counsel would render the proceedings fundamentally unfair. If a probationer’s actual sentence is not determined until the point of revocation, however, counsel must be present.

Douglas v. California (1963) held that as a matter of due process and equal protection, counsel must be supplied for all appeals of right (first appeals of a conviction that the government chooses to grant to all convicted persons). There is no constitutional guarantee of counsel for further appeals to higher state appellate courts or the U.S. Supreme Court, which have discretion to hear or reject them, or for habeas corpus actions or other forms of collateral attack on a conviction, but indigents challenging a state or federal death sentence in a federal postconviction proceeding do have a statutory right to appointed counsel.

Choice and Effectiveness of Attorneys

Defendants who retain counsel have a broad but not unfettered right to an attorney of choice, for ‘‘the essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers’’ (Wheat v. United States [1988]). Thus, for example, one may not be represented by the counsel of choice if the trial judge determines that the attorney has a conflict of interest. Defendants for whom counsel is appointed have considerably less discretion, for the Supreme Court has ‘‘reject[ed] the claim that the Sixth Amendment guarantees a ‘meaningful relationship’ between an accused and his counsel’’ (Morris v. Slappy [1983]).

A confidential relationship, however, has long been considered essential to an effective right to counsel. The attorney-client privilege permits the client, and requires the attorney, to refrain from revealing any confidential communication between them (subject, under the rules of various states, to such narrow exceptions as an attorney’s knowledge of a client’s intention to commit a serious crime).

This restriction of the right to competent representation does not derogate the choice of self-representation at trial, for the Court has concluded that the structure of the Sixth Amendment—a compendium of personal rights, including the assistance of counsel— requires acknowledgment of the right to defend oneself. That right, however, is not unfettered, either, as persons representing themselves can be held to the normal standards of protocol and procedure, and standby counsel can be imposed on them if necessary to achieve compliance. Persons who represented themselves cannot, moreover, appeal convictions on the grounds of ineffective assistance of counsel.

The right to counsel is the right to effective assistance of counsel at any proceeding at which the right pertains. Convicted persons who had retained or appointed counsel can—presumably with a new lawyer— appeal adverse judgments on the basis of ineffective assistance but face formidable barriers to success. Under most circumstances, appellants must identify specific acts or omissions of the attorney that fell below a reasonable standard of professional assistance (overcoming a general presumption of professional competence) and establish a reasonable probability that, but for the deficiency, the outcome of the proceeding would have been different.

Such appeals are only rarely successful. Supporters of the high standard agree that ‘‘the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation [but] simply to ensure that criminal defendants receive a fair trial’’ (Strickland v. Washington [1984]) whose result is presumably accurate; critics such as William S. Geimer fault the standard for ‘‘fostering tolerance of abysmal lawyering’’ that negates the presumption of an accurate result. Even if the result is accurate, however, a further question remains, posed by Justice Thurgood Marshall dissenting in Strickland: whether the Sixth Amendment is ‘‘violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney.’’ Emphasizing procedure as much as result, Marshall thought that it is.

Despite Strickland’s tolerant conception of adequate performance, there is widespread recognition of a serious problem of the quality of counsel provided for indigent defendants. Public defender offices are often overworked and underfunded, systems of court-appointed attorneys often provide minimal compensation and lack quality control, and legal services companies that contract for defense services may be compensated on a lump-sum rather than fee-for-service basis and thus have an incentive to minimize time and effort spent on individual cases. The problem seems particularly acute in capital cases, where the procedures and substance of the law are especially complex and the costs of effective representation are significantly higher. A study commissioned by the U.S. Senate Committee on the Judiciary and led by James Liebman found that in 4,578 appeals of death sentences in the 1973–1995 period, 68 percent were overturned; the study cited ‘‘egregiously incompetent defense lawyers’’ as one of two principal causes. Many states have launched efforts to upgrade the quality of defense services in the past two decades, and in late 2004 Congress enacted the Justice for All Act, which sets standards for competent representation and authorizes federal grants to states for the improvement of systems of providing counsel to indigents in capital cases. Improvements have been spotty, however, and much remains to be done.

Counsel for Enemy Combatants

The decision in Gideon v. Wainwright (1963) guaranteed the availability if not competence of counsel for defendants in criminal cases, but in the aftermath of the terrorist attacks of September 11, 2001, the question of access to counsel arose for a new category of suspects. As a result of the war in Afghanistan and the attempt to dismantle the al-Qaeda network, the U.S. government designated hundreds of persons, almost all captured abroad, as enemy combatants and asserted the right to detain them indefinitely without access to counsel or the ability to contest their detention in court. The government’s rationale was that the detainees were military prisoners (although not entitled to the protections of the Geneva Convention) and that no rights applied because it had not initiated criminal proceedings; access to counsel would undermine the government’s goal of gaining intelligence from them and might even provide a conduit for their participation in terrorist activities.

There is no Sixth Amendment right to counsel in civil proceedings, or in proceedings in the criminal justice system that are not defined as prosecutions, even where confinement may result. There may, however, be a due process right to counsel that is unqualified, as in juvenile delinquency proceedings, or case-by-case as fundamental fairness requires, as in proceedings for deportation, termination of parental rights, revocation of probation, and civil commitment (for which there is typically a statutory right to counsel as well). Even where there is no guaranteed right, civil litigants can usually be represented by retained counsel if they can afford it, but the government adopted a much harsher position with respect to enemy combatant detainees, contending that they could be denied both access to and the services of counsel. Attorneys nevertheless filed cases on their behalf, three of which reached the Supreme Court in 2004.

Two of those cases involved American citizens. The Court ruled that the president had the authority to detain Yaser Esam Hamdi, captured in Afghanistan, as an enemy combatant, but that Hamdi had a right to a hearing before a neutral decisionmaker and was entitled to access to counsel for that purpose. By that point, the government had allowed him to meet with counsel—as a matter of discretion, not of right— presumably because it had completed its interrogation for intelligence purposes. The issue of counsel went no further in this case, as the government chose to release Hamdi rather than contest his petition for habeas corpus. The situation of the other American, Jose´ Padilla, was different because he had been apprehended at O’Hare International Airport in Chicago, held as a material witness in New York, and granted counsel before being reclassified as an enemy combatant, transferred to military custody in South Carolina, and denied further access to his lawyer. He was eventually allowed to see his attorney, but the Supreme Court declined to rule on his claim of a right to counsel and a hearing because it had been filed in federal court in New York rather than South Carolina. The case was refiled and as of this writing, a federal district court in South Carolina has ordered Padilla’s release because it ruled that the president had no authority to detain an American citizen, apprehended in the United States, as an enemy combatant. Padilla will in all likelihood be detained while the government’s appeal goes forward. Alternatively, the government could continue to hold him by reinstating his status as a material witness or by formally charging him with a crime; in either case, Padilla’s right to counsel would be clear.

Virtually all other enemy combatant detainees were aliens, several hundred of whom were held at the American Naval Base at Guanta´namo, Cuba. The sole question decided by the Court in their case was whether or not federal district courts have jurisdiction to hear habeas corpus petitions on behalf of persons in that location (which the government appears to have chosen to avoid the sphere of constitutional protection), and it ruled that they do. The government then allowed access to counsel as a matter of policy but in further proceedings in federal district court argued that the detainees nevertheless had no constitutional right to counsel or a hearing and that district courts must therefore deny their petitions— a position that would render the Supreme Court decision nugatory. As an alternative, the government had already established Combatant Status Review Tribunals, composed of three military officers, to provide the hearing before a neutral decision maker stipulated in Hamdi v. Rumsfeld (2004). In these forums, detainees have a personal representative who is neither a lawyer nor an advocate, and are denied other procedural rights as well. As of this writing, one judge in a preliminary ruling has upheld the detainees’ right to counsel, a second has ruled in favor of the government’s position that there is no way detainees can challenge their detention in federal court, and a third has ruled that they are entitled to due process and that Combatant Status Review Tribunals do not meet that constitutional standard. These issues seem destined to return to the Supreme Court.

Government action in the wake of 9/11 also raised new issues with respect to the scope of the attorney– client privilege. The settled understanding had been that the government was prohibited from monitoring attorney–client conversations unless it had obtained a court order by establishing probable cause to believe that the parties were furthering a crime. In the wake of the terrorist attacks, however, the government promulgated a new rule of the Federal Bureau of Prisons under which the attorney general may order the monitoring of such conversations if the head of a federal law enforcement or intelligence agency has determined that there is reasonable suspicion that a particular inmate might use meetings with his or her attorney to further acts of terrorism. Advance notice of monitoring is to be given, communications are to be screened by a privilege team independent of the prosecution, and the team is not to disclose any information without the approval of a federal judge unless necessary to forestall an imminent act of violence or terrorism. As of this writing, the government does not acknowledge a right to counsel for enemy combatants in military custody, and that issue is still in litigation. Where it allows consultation as a matter of discretion, however, the government frequently monitors the meetings.

Enforcement of the right to counsel has engendered less controversy than enforcement of many other fundamental rights, perhaps because it relates more obviously to procedure than to result. Issues of its scope, as to both the persons it covers and the extent of that coverage, will, however, continue to arise and to occupy the courts.

JOHN B. TAYLOR

References and Further Reading

• Bernhard, Adele. ‘‘Effective Assistance of Counsel.’’ In Wrongly Convicted: Perspectives on Failed Justice, edited by Saundra D. Westervelt and John A. Humphrey. New Brunswick, N.J.: Rutgers University Press, 2001.
• Geimer, William S., A Decade of Strickland’s Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel, William and Mary Bill of Rights Journal 4 (1995): 91–178.
• Harlow, Caroline Wolf. Defense Counsel in Criminal Cases. U.S. Department of Justice Bureau of Justice Statistics Special Report. Washington, D.C., 2000. https://www.ojp.usdoj.gov/bjs/id.htm.
• Liebman, James, Jeffrey Fagan, and Valerie West. A Broken System: Error Rates in Capital Cases, 1973–1995. A Study Commissioned by the U.S. Senate Judiciary Committee. Washington, D.C., 2000. https://justice.policy.net/proactive/newsroom/release.vtml?id=18200.
• Taylor, John B. Right to Counsel and Privilege against Self- Incrimination: Rights and Liberties under the Law. Santa Barbara, Calif.: ABC-Clio Press, 2004.
• Tomkovicz, James J. The Right to the Assistance of Counsel: A Reference Guide to the United States Constitution. Westport, Conn.: Greenwood Press, 2002.

Cases and Statutes Cited

• Argersinger v. Hamlin, 407 U.S. 25 (1972)
• Brewer v. Williams, 430 U.S. 387 (1977)
• Douglas v. California, 372 U.S. 353 (1963)
• Escobedo v. Illinois, 378 U.S. 478 (1964)
• Gideon v. Wainwright, 372 U.S. 335 (1963)
• Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
• Kirby v. Illinois, 406 U.S. 682 (1972)
• Massiah v. United States, 377 U.S. 201 (1964)
• Miranda v. Arizona, 384 U.S. 436 (1966)
• Morris v. Slappy, 461 U.S. 1 (1983)
• Powell v. Alabama, 287 U.S. 45 (1932)
• Strickland v. Washington, 466 U.S. 668 (1984)
• United States v. Ash, 413 U.S. 300 (1973)
• United States v. Wade, 388 U.S. 218 (1967)
• Wheat v. United States, 486 U.S. 153 (1988)