Difference between revisions of "Right to Counsel"

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The right to counsel in the United States arises from the Sixth and Fifth Amendments to the U.S. Constitution.  
 
The right to counsel in the United States arises from the Sixth and Fifth Amendments to the U.S. Constitution.  
 
  
 
The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense.” In Gideon v. Wainwright the right to counsel was incorporated against the states.<ref> 372 U.S. 335 (1963). </ref>  Thus, this right applies to all federal and state criminal prosecutions where the defendant is accused of a felony or of a misdemeanor and a sentence of incarceration is actually imposed. <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref>
 
The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense.” In Gideon v. Wainwright the right to counsel was incorporated against the states.<ref> 372 U.S. 335 (1963). </ref>  Thus, this right applies to all federal and state criminal prosecutions where the defendant is accused of a felony or of a misdemeanor and a sentence of incarceration is actually imposed. <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref>
 
  
 
The right to counsel attaches at the beginning of any adversarial judicial proceedings “whether by way of formal charge, preliminary hearing, indictment, information or arraignment.” <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref> In the recent U.S. Supreme court case Rothgery v. Gillespie County, 554 U.S. 191, the Supreme Court held 8-1 that "a criminal defendant’s initial appearance before a judicial officer, where he learns of the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel." If the defendant had the right to counsel but counsel was not provided, this would be grounds for an automatic reversal of the defendant’s conviction. <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref>
 
The right to counsel attaches at the beginning of any adversarial judicial proceedings “whether by way of formal charge, preliminary hearing, indictment, information or arraignment.” <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref> In the recent U.S. Supreme court case Rothgery v. Gillespie County, 554 U.S. 191, the Supreme Court held 8-1 that "a criminal defendant’s initial appearance before a judicial officer, where he learns of the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel." If the defendant had the right to counsel but counsel was not provided, this would be grounds for an automatic reversal of the defendant’s conviction. <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref>
 
  
 
All indigent defendants who cannot afford to retain an attorney have an absolute right to have counsel appointed to them. <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref> The right to counsel does not apply to discretionary appeals or collateral attacks. <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref>
 
All indigent defendants who cannot afford to retain an attorney have an absolute right to have counsel appointed to them. <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref> The right to counsel does not apply to discretionary appeals or collateral attacks. <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref>
 
  
 
The Supreme Court has held that an accused has the right under the Sixth Amendment to conduct her own defense in a criminal case. <ref> Faretta v. California, 422 U.S. 806 (1975). </ref> This is known as pro se representation. In order for a defendant to waive the right of counsel, the defendant must knowingly and intelligently waive such a right. <ref> Johnson v. Zerbst, 304 U.S. 458 (1938). </ref> The waiver of this right is not absolute as a judge may stop pro se representation if the defendant is not able or willing to abide by the general rules of procedure or courtroom protocol. <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref>
 
The Supreme Court has held that an accused has the right under the Sixth Amendment to conduct her own defense in a criminal case. <ref> Faretta v. California, 422 U.S. 806 (1975). </ref> This is known as pro se representation. In order for a defendant to waive the right of counsel, the defendant must knowingly and intelligently waive such a right. <ref> Johnson v. Zerbst, 304 U.S. 458 (1938). </ref> The waiver of this right is not absolute as a judge may stop pro se representation if the defendant is not able or willing to abide by the general rules of procedure or courtroom protocol. <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref>
 
  
 
The Fifth Amendment indirectly promotes the right to counsel in the United States.  In the landmark case of Miranda v. Arizona, the Supreme Court, in recognizing the constitutional guarantee against self-incrimination, notes that if the defendant “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning [by the police].” <ref> 384 U.S. 436, 444-45 (1966). </ref> The Court reinforced this principle in Edwards v. Arizona, in stating that when the accused expresses his desire to “deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.” <ref> 451 U.S. 477, 484-85 (1981). </ref> The Court noted that the Miranda-Edwards rule were “designed to prevent police from badgering a defendant into waiving his right to counsel.” <ref> 451 U.S. 477, 484-85 (1981). </ref>
 
The Fifth Amendment indirectly promotes the right to counsel in the United States.  In the landmark case of Miranda v. Arizona, the Supreme Court, in recognizing the constitutional guarantee against self-incrimination, notes that if the defendant “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning [by the police].” <ref> 384 U.S. 436, 444-45 (1966). </ref> The Court reinforced this principle in Edwards v. Arizona, in stating that when the accused expresses his desire to “deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.” <ref> 451 U.S. 477, 484-85 (1981). </ref> The Court noted that the Miranda-Edwards rule were “designed to prevent police from badgering a defendant into waiving his right to counsel.” <ref> 451 U.S. 477, 484-85 (1981). </ref>

Revision as of 17:03, 21 November 2010

Background

One of the most essential rights for a defendant is the right to legal counsel.

International Sources

International Covenant on Civil and Political Rights

Article 14, Section 3 -

  • "In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay;(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;(g) Not to be compelled to testify against himself or to confess guilt."

Regional Instruments

European Convention on Human Rights

Article 6 (3) (c) -

  • Everyone charged with a criminal offence has the following minimum rights:...
    • (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

American Convention on Human Rights

Article 8 (2) (d) -

  • 2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:...
    • d. the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;

Examples of Right to Counsel

Cambodia

  • After a period of 24 hours from the beginning of the police custody has expired, the detainee may request to speak with a lawyer or any other person who is selected by the detainee, for 30 minutes provided that the selected person is not involved in the same offence. (art.98 Cambodian Code of Criminal Procedure- CCCP)
  • When a charged person appears for the first time, the investigating judge should inform him of his right choose a lawyer or to have a lawyer appointed according to the Law on the Bar. (art. 143 CCCP)

China

  • A crime suspect has the right after the initial interrogation or from the day on which compulsory measures are adopted against him, to hire a lawyer to offer him legal consultancy or to act on his behalf in making appeal or accusation (art.96 CPL 1996) Also art. 11, 32, 34, 36 CPL

India

  • No person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of his choice. (art.22 (1) of the Constitution of India)

Kenya

In view of the ever present danger of adverse consequences in cases where a defendant is unrepresented, Article 50(2) of the Constitution guarantees the right to counsel. The right to counsel includes: the right of an accused to be represented by an advocate of his choice; the right of the accused to be informed promptly of his right to counsel; the right to have counsel assigned by the State at the State’s expense. Prohibitive costs of using the system and lack of affordable legal representation are to of the main impediments to accessing justice. Article 48 of the Constitution provides that where payments of fees is required, the fees shall be reasonable so as access to justice is not impeded.

Even though, Article 48 of the Constitution obliges the State to ensure access to justice for all persons, under Article 50(2)(h), the right to counsel at the expense of the State is only available if substantial injustice would otherwise occur. A determination on what would constitute substantial injustice will be decided by courts.

An arrestee’s pretrial right to counsel is to be informed promptly of his right to counsel, and be afforded the opportunity to communicate with an advocate or other persons whose assistance is necessary (Article 49 (c).

Constitution

  • 77(2) Every person who is charged with a criminal offence (d) shall be pertained to defend himself before the court in person or by a legal representative of his own choice
  • 77 (14) Nothing contained in subsection (2)(d) shall be construed as entitling a person to legal representation at public expense.

Criminal Procedure Code (2009)

  • 137F (1) Before the court records a plea agreement, the accused person shall be placed under oath and the court shall address the accused person personally in court, and shall inform the accused person of, and determine that the accused person understands - (a) the right to - (vi) be represented by a legal representative of his own choice, and where necessary, have the court appoint

Parliament shall enact legislation that (a) provides for the humane treatment of persons detained, held in custody or imprisoned; and (b) takes into account the relevant international human rights Instruments

Rwanda

  • Any person detained by the judicial police shall have the right to consult with his or her legal counsel. In case he or she fails to seek one, he or she shall inform the chairperson of the bar association for assigning a counsel to him or her, but he or she has the right to accept or refuse that counsel. (Article 39 Rwandan CPC)
  • a public prosecutor informs the accused of the right to seek a defense counsel. The counsel is allowed to read the case file as well as to communicate with the accused.(Article 64 Rwandan CPC)

Uganda

Constitution

  • 28 (3) Every person who is charged with a criminal offence shall-
    • (e) in the case of any offence which carries a sentence of death or imprisonment for life, be entitled to legal representation at the expense of the State

United States

The right to counsel in the United States arises from the Sixth and Fifth Amendments to the U.S. Constitution.

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense.” In Gideon v. Wainwright the right to counsel was incorporated against the states.[1] Thus, this right applies to all federal and state criminal prosecutions where the defendant is accused of a felony or of a misdemeanor and a sentence of incarceration is actually imposed. [2]

The right to counsel attaches at the beginning of any adversarial judicial proceedings “whether by way of formal charge, preliminary hearing, indictment, information or arraignment.” [3] In the recent U.S. Supreme court case Rothgery v. Gillespie County, 554 U.S. 191, the Supreme Court held 8-1 that "a criminal defendant’s initial appearance before a judicial officer, where he learns of the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel." If the defendant had the right to counsel but counsel was not provided, this would be grounds for an automatic reversal of the defendant’s conviction. [4]

All indigent defendants who cannot afford to retain an attorney have an absolute right to have counsel appointed to them. [5] The right to counsel does not apply to discretionary appeals or collateral attacks. [6]

The Supreme Court has held that an accused has the right under the Sixth Amendment to conduct her own defense in a criminal case. [7] This is known as pro se representation. In order for a defendant to waive the right of counsel, the defendant must knowingly and intelligently waive such a right. [8] The waiver of this right is not absolute as a judge may stop pro se representation if the defendant is not able or willing to abide by the general rules of procedure or courtroom protocol. [9]

The Fifth Amendment indirectly promotes the right to counsel in the United States. In the landmark case of Miranda v. Arizona, the Supreme Court, in recognizing the constitutional guarantee against self-incrimination, notes that if the defendant “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning [by the police].” [10] The Court reinforced this principle in Edwards v. Arizona, in stating that when the accused expresses his desire to “deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.” [11] The Court noted that the Miranda-Edwards rule were “designed to prevent police from badgering a defendant into waiving his right to counsel.” [12]

  1. 372 U.S. 335 (1963).
  2. Right to Counsel, 87 Geo. L.J. 1519 (1999).
  3. Right to Counsel, 87 Geo. L.J. 1519 (1999).
  4. Right to Counsel, 87 Geo. L.J. 1519 (1999).
  5. Right to Counsel, 87 Geo. L.J. 1519 (1999).
  6. Right to Counsel, 87 Geo. L.J. 1519 (1999).
  7. Faretta v. California, 422 U.S. 806 (1975).
  8. Johnson v. Zerbst, 304 U.S. 458 (1938).
  9. Right to Counsel, 87 Geo. L.J. 1519 (1999).
  10. 384 U.S. 436, 444-45 (1966).
  11. 451 U.S. 477, 484-85 (1981).
  12. 451 U.S. 477, 484-85 (1981).

Zimbabwe

  • The accused shall be permitted to defend themselves or, at their own expense, get a legal representative of their own choice. Constitution � (18)(3)(d).
  • If the accused cannot afford a legal representative, a magistrate can deem it necessary and desirable and in the interests of justice to certify that such a person have this assistance. Legal Aid Act, part III � (10)(1)(a-b), 1996.



See Rights of the Accused