CAPITAL CASES AND PRIVATE COUNSEL EFFECTIVENESS

Capital Cases Appointed and Private Counsel Effectiveness



Capital Cases Appointed and Private Counsel Effectiveness

Introduction

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense." Over the past seventy-five years, the contours of this constitutional right have expanded dramatically. Originally, the Sixth Amendment simply ensured that the defendant in a federal criminal case who could afford to hire counsel would be entitled to appear through a lawyer, rather than being forced to defend himself. But beginning in the early 1930s, and expanding over the next three decades, the U.S. Supreme Court and state supreme courts came to require the government to provide lawyers to the vast majority of criminal defendants who could not afford to hire a lawyer.

As other aspects of criminal law and procedure have become increasingly complex, the need for counsel has grown correspondingly. Moreover, the greater complexity of constitutional criminal procedure—for example, the intricate rules governing the admission of evidence and appropriate jury instructions—means that defendants need not only a lawyer's physical presence; they need effective assistance. Much of the doctrinal development of the past twenty years, then, has focused not on when a lawyer must be provided—a question largely answered by the 1980s—but on how a lawyer must perform in order to realize the Sixth Amendment's guarantee.

Constitutional right to counsel

The constitutional right to counsel has its roots in four separate constitutional provisions. The most explicit of these is the Sixth Amendment, quoted above. Like the rest of the Bill of Rights, the Sixth Amendment applied originally only to criminal prosecutions brought by the federal government. As with most of the other provisions dealing with the criminal justice process, however, the Sixth Amendment came to be "incorporated" against the states through a second constitutional provision—the due process clause of the Fourteenth Amendment.

In a series of cases beginning in the 1930s (Palko v. Connecticut, 302 U.S. 319 (1937)), the Supreme Court held that provisions of the Bill of Rights that were "implicit in the concept of ordered liberty" and thus necessary for a trial to be fundamentally fair were to be applied in state-court proceedings as well. In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court held that the Sixth Amendment's guarantee of counsel to indigent defendants was so fundamental and essential to a fair trial that the due process clause required states to provide counsel to all indigent defendants in felony cases.

In addition to the Sixth Amendment-based right, the Supreme Court has found a right to counsel within the Fifth Amendment's privilege against self-incrimination (also made applicable to the states through incorporation). In Miranda v. Arizona, 384 U.S. 436 (1966), the Court held that an individual who is taken into police custody "must be clearly informed that he has the right to consult with a lawyer and to have that lawyer with him during interrogation" since otherwise he may be unable ...