Right to counsel

Right to counsel is nowadays generally regarded as a constituent of the right to a fair trial, allowing for the defendant to be assisted by counsel (i.e. lawyers), and if he cannot afford his own lawyer, requiring that the government should appoint one for him, or pay his legal expenses. However, this has not historically always been the case in all countries.

In Canada

The right to counsel is guaranteed under Section Ten of the Canadian Charter of Rights and Freedoms as well as the right to habeas corpus.

In France

The Napoleonic Code of Criminal Instruction, adopted in France in 1808 and inspiring many similar codes in civil law countries, made it compulsory that the defendant should have a lawyer when tried in the assize courts (which judged severe crimes).

In the United Kingdom

England and Wales

Before the Prisoners' Counsel Act (1836), felony defendants did not have the formal right of being represented by a counsel in English courts although, from the mid-18th century such had been routinely indulged where defendants could afford them. It was thought, at the time, that the presence of defence counsel would serve no purpose in criminal proceedings, where what matters is deciding fact: the defendant should simply tell the truth to the court, without the interference of some counsel. William Hawkins in his "A Treatise of the Pleas of the Crown: or a system of the principal matters, relating to that subject, digested under their proper heads Vol. II." of 1721 wrote::" [I] t requires no manner of Skill to make a plain and honest Defence, which ... is always the best; the Simplicity and Innocence, artless and ingenuous Behaviour of one whose Conscience acquits him, having something in it more moving and convincing than the highest Eloquence of a Person speaking in a cause not their own."This changed as more and more prosecutions became, for reasons of public policy, funded by the Crown – all successful prosecutions from 1778 onwards being so funded – who employed professional counsel. An innate sense of fair-play prevailed therefore, permitting defence counsel to be present, albeit at the defendant’s own expense. Penurious defendants were obviously at a significant disadvantage.

In the United States

In the United States, while the right to counsel in trials by the federal government was recognized by the US Bill of Rights, the affirmation that this right extended to cases tried by state courts (i.e. most criminal trials, including for crimes such as murder in most cases) came much later. While some state supreme courts affirmed this right during the 19th century, it was only in the 1963 decision Gideon v. Wainwright that the American Supreme Court affirmed the right for defendants to have counsel in felony trials.

As stated in "Brewer v. Williams", 430 U.S. 387, the rights granted by 6th and 14th Amendments “mean at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or arraignment.” 430 U.S. at 398. "Brewer" goes on to conclude that once adversary proceeding have begun against a defendant, he has a right to legal representation when the government interrogates him. 430 U.S. at 401, citing "Massiah v. United States", 377 U.S. 201.

In Louisiana, the state Supreme Court has discussed at what point the right to counsel attached under the state and federal constitutions in "State v. Hattaway", 621 So. 2d 796 (La. 1993). In this case, the Court repeated the "Brewer" condition that the Sixth Amendment right to counsel attaches after the commencement of adverse judicial criminal proceedings, and that the right exists only during pre-trial confrontations that can be considered "critical stages" during adverse judicial criminal proceedings. 621 So.2d at 801. No clear definition of a critical stage was given, but interrogation of a defendant by police officers was offered as an example of a critical stage in that case.

Some states extend the right to counsel to all matters where a defendant's liberty interest is threatened. The New Jersey Supreme Court unanimously held that, regardless of whether the proceeding is labeled as civil, criminal, or administrative, if a defendant faces a loss of liberty, she or he is entitled to appointed counsel if indigent. "Anne Pasqua, et al v. Hon. Gerald J. Council, et al", 186 N.J. 127 (2006) (March 2006).

The United States Supreme Court has held in "Brewer v. Williams", 430 U.S. 387, 399 (1977) that when a defendant is arrested, "arraigned on [an arrest] warrant before a judge," and "committed by the court to confinement," " [t] here can be no doubt . that judicial proceedings ha [ve] been initiated." and the the Sixth Amendment right to counsel has attached. ("ROTHGERY v. GILLESPIE COUNTY, TX", Certiorari Granted: 12/3/07, Docket No. 07-440.) [http://www.ca5.uscourts.gov/opinions%5Cpub%5C06/06-50267-CV0.wpd.pdf]

ee also

*Miranda rights
*Civil rights
*Criminal justice