Sixth Amendment – Right to Assistance of Counsel

The Sixth Amendment guarantees a criminal defendant the right to have an attorney defend him or her at trial. That right is not dependent on the defendant’s ability to pay an attorney; if a defendant cannot afford a lawyer, the government is required to provide one. The right to counsel is more than just the right to have an attorney physically present at criminal proceedings. The assistance provided by the attorney must be effective.

1791Sixth Amendment Is Ratified

The Sixth Amendment is ratified as part of the Bill of Rights of the U.S. Constitution. The amendment guarantees the rights of the accused in criminal prosecutions.

1932The ‘Scottsboro Boys’ Case

In Powell v. Alabama, the U.S. Supreme Court reverses the convictions and death sentences of nine African Americans known as the “Scottsboro Boys” because their rape trial had been held in Scottsboro, Ala. The court finds that the teens were denied their Sixth Amendment right to effective assistance of counsel because they had not seen an attorney until the morning of the trial and had no chance to put on a meaningful defense.

In a second trial, the nine again are convicted, despite testimony by one of the two alleged victims, both white, that the rape never occurred. After the justices reverse those convictions because of the exclusion of African Americans from the jury, a third trial occurs. Four defendants are again convicted and a fifth pleads guilty; charges against the four others are dropped. By 1950, four of the five men will be paroled; the fifth will die in prison.

1938Indigent Have Right To Counsel In Federal Cases

In Johnson v. Zerbst, the U.S. Supreme Court rules that in federal court trials, the Sixth Amendment right to assistance of counsel includes the right to have counsel appointed at the government’s expense if a defendant cannot afford to pay for one. Four years later, however, in Betts v. Brady, the court will refuse to extend the same rule to state court trials.

1942Attorney With Conflicts Cannot Give Effective Counsel

In Glasser v. United States, the U.S. Supreme Court reverses the conviction of a defendant, Mr. Glasser, whose attorney, on the first day of trial, was also appointed to represent Mr. Kretske, a co-defendant. However, certain evidence that was favorable to Mr. Glasser’s defense incriminated Mr. Kretske. The Court rules that under those circumstances, their attorney could not put on the best defense possible for Mr. Glasser for fear of putting Mr. Kretske at risk of conviction. The Court concludes that Mr. Glasser’s Sixth Amendment right to counsel was violated.

1954Denial Of Counsel Is Ruled Unconstitutional

In Chandler v. Fretag, the defendant said he did not want an attorney when he appeared in court to plead guilty to a charge of breaking and entering. At that time, he was told for the first time that he faced a sentence of life in prison because of his criminal record. He requested a delay so he could consult a lawyer on the habitual criminal charge, but his request was denied. The U.S. Supreme Court reverses the denial, saying that it violated the defendant’s due process rights under the 14th Amendment.

1963Right To Counsel For Indigent Extended To States

In Gideon v. Wainwright, the U.S. Supreme Court unanimously extends to state court trials the rule it established for federal court trials nearly 30 years earlier in Johnson v. Zerbst: The Sixth and 14th Amendments guarantee indigent defendants the right to have an attorney appointed, at the government’s expense, if they are charged with a serious crime. In 1972, in Argersinger v. Hamlin, the Court will extend the Gideon rule to defendants charged with a misdemeanor and facing jail time.

1964Counsel Must Be At Questioning After Suspect Charged

In Massiah v. United States, the U.S. Supreme Court rules that the Sixth Amendment is violated when a defendant, having been charged and awaiting trial, is interrogated by police officers without the presence of a defense attorney. The justices say the Sixth Amendment requires that evidence gathered during questioning without the defense attorney present be excluded at the trial.

1964Counsel Must Be Present At Questioning Before Suspect Charged

Expanding upon its ruling in Massiah v. United States, the U.S. Supreme Court rules in Escobedo v. Illinois that the Sixth Amendment right to counsel applies to interrogations of suspects before they have been charged with any particular crime.

1966‘You Have The Right To Remain Silent…’

In Miranda v. Arizona, the U.S. Supreme Court rules that the Fifth Amendment right against self-incrimination is not limited to in-court testimony, but also applies when a person is taken into police custody for questioning. The Court also rules that criminal suspects must be told of their Sixth Amendment right to an attorney. Once a person “indicates in any manner that he does not wish to be interrogated,” the police must stop asking questions – even if the person has answered questions up to that point, the Court says.

These mandatory statements by police have become known as Miranda rights or Miranda warning, and the process of informing a person of these rights has become known as Mirandizing.

1967Defense Attorney Required To Follow Through On Appeal

In Anders v. California, the U.S. Supreme Court rules that counsel appointed to represent a criminal defendant must “support his client’s appeal to the best of his ability.” The Court finds that this constitutional obligation was violated when the defense counsel appointed to represent the defendant on appeal simply submitted a letter to the court expressing his opinion that the appeal had no merit, and withdrew from the case. The Court rules that the defense attorney has a duty to fully investigate the case’s merits and fully justify his reasons for refusing to file an appeal. In addition, the defendant should have an opportunity to rebut the attorney’s arguments, and the appeals court should have the leeway to reject the attorney’s arguments, to permit the appeal, and to appoint new counsel.

1967Right to Counsel Applies At Pretrial Identification Lineup

In two companion cases, United States v. Wade and Gilbert v. California, the U.S. Supreme Court rules that the Sixth Amendment prohibits the prosecution from introducing evidence that a defendant was identified in a lineup unless the defendant’s attorney was present. The Court bases its decision on the fact that an identification of a suspect is a “critical stage” of the trial process and therefore a defendant is entitled to the protections that a lawyer can provide.

1975Counsel Cannot Be Forced On A Defendant

In Faretta v. California, the U.S. Supreme Court rules that although the Sixth Amendment requires appointment of counsel for those who cannot afford one, it does not allow a state to force a defendant to accept an attorney if he wishes to represent himself. As long as the defendant shows that he is literate, competent, and understands the effects of choosing to give up the right to have an attorney appointed, the Court finds that the Constitution allows self-representation. After all, the Court notes, the Constitution protects the rights of the defendant, not the attorney.

1977Type Of Questioning That Triggers Right To Counsel Widened

In Brewer v. Williams, the U.S. Supreme Court rules that the Sixth Amendment right to counsel applies not only when police formally interrogate suspects but also when they casually speak with the defendant and intentionally discuss topics that they know are likely to provoke the defendant to make incriminating statements. In this case, the defendant was in custody for allegedly kidnapping a 10-year-old girl, and police knew that the defendant was deeply religious. While taking the defendant from court to jail, and without counsel present, the police told the defendant that the girl’s parents deserved to give her a “Christian burial.” The Court rules that the defendant’s incriminating statements about the location of the body could not be admitted at trial because they were the result of unconstitutional questioning.

1979Possibility Of Jail Not Enough To Trigger Right To Counsel

In Scott v. Illinois, the U.S. Supreme Court clarifies its 1972 ruling in Argersinger v. Hamlin that a defendant who is convicted of a crime cannot be sentenced to jail unless he was offered the appointment of an attorney at trial. The Court says that in this case, in which the indigent defendant was not sentenced to jail even though it was one of several potential punishments, the state was not obligated under the Sixth Amendment to appoint counsel.

1980Rules Clarified On Identifying Lawyers’ Conflicts Of Interest

In Cuyler v. Sullivan, the U.S. Supreme Court clarifies the rules for deciding whether a defense attorney representing multiple defendants has a conflict of interest that violates a defendant’s Sixth Amendment right to counsel. The Court rules that a defendant can argue his right to effective counsel was violated whether he is paying for his attorney or has court-appointed counsel. The Court also says representing multiple defendants is not always prohibited. A trial court, it says, can decide if the circumstances require further investigation of a possible conflict. Additionally, the defendant need show only that his attorney’s conduct was adversely affected by a conflict, not that the outcome of the trial would have been different.

1980Right To Counsel Exists When Someone Other Than Police Gathers Evidence

In United States v. Henry, the U.S. Supreme Court rules that police violated a defendant’s Sixth Amendment right to counsel when they paid the defendant’s cellmate to “pay attention” to any remarks made by the defendant that were potentially incriminating. Because the defendant’s attorney was not in the cell when these conversations occurred, and because the defendant would not have made any of the statements if he were aware that the cellmate was acting on behalf of the police, the Court finds that any evidence gathered through this method could not be used at trial.

1984Standby Counsel Does Not Violate Self-Representation Right

In a 1975 case, Faretta v. California, the U.S. Supreme Court rules that a defendant has a right to represent himself and the Court cannot force counsel on the defendant. However, in McKaskle v. Wiggins, the justices rule that a defendant’s right to represent himself at trial is not violated by the presence of counsel appointed by the court to “stand by” and assist the defendant in following certain courtroom procedures. The Court finds that so long as the standby counsel simply helps the trial proceed more efficiently, and does not cross into taking control of the defendant’s case, the Sixth Amendment is not violated.

1984Court Defines Test For Ineffective Counsel

In Strickland v. Washington, the U.S. Supreme Court establishes a two-part test for deciding whether an attorney provided “effective” or “ineffective” assistance to a criminal defendant who is found guilty. First, the quality of the attorney’s actual performance must be assessed. This includes factors such as the attorney’s preparation for trial (such as whether he thoroughly learned the evidence and gathered all possible evidence for the defense) and second, the attorney’s conduct at the trial (such as whether he made the appropriate objections to certain evidence). It does not cover the tactical decisions that a defense attorney might make during trial (such as the order in which witnesses are put on the stand). Second, if the attorney’s conduct is judged to have been poor, it also is necessary to look at whether that poor conduct hurt the defendant’s case to the point where there is a “reasonable probability” that the outcome would have been different. If both parts of the test are not satisfied, then the counsel will be considered to have been effective, and the Sixth Amendment not violated.

1985Assistance Of Counsel On Appeal Must Also Be Effective

In Evitts v. Lucey, the U.S. Supreme Court rules that, just as the Sixth Amendment guarantees a criminal defendant effective assistance of counsel at trial, he also is entitled to effective assistance of counsel when appealing a conviction.

1985Ineffective Counsel Standard Applies To Plea Bargains

In Hill v. Lockhart, the U.S. Supreme Court rules that when a defendant who pleaded guilty under a plea bargain agreement later complains that he received “ineffective assistance of counsel,” he must show that he would not have pleaded guilty if his attorney had performed differently.

1986No Police Questioning Can Occur After Attorney Is Requested

In Michigan v. Jackson, the U.S. Supreme Court finds that after a criminal defendant exercises his Sixth Amendment right by asking for an attorney to be appointed, police cannot interrogate the defendant even if the defendant states a willingness to be questioned without an attorney present.

1993Defendant Must Be Mentally Competent To Waive Counsel Right

In Godinez v. Moran, the U.S. Supreme Court rules that a criminal defendant can waive the Sixth Amendment right to assistance of counsel and plead guilty if he has already met the same standard used to decide whether a defendant is mentally competent to stand trial: Whether he has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and a “rational as well as factual understanding of the proceedings” against him.

2000No Absolute Requirement To Appeal Client’s Conviction

In Roe v. Flores-Ortega, the U.S. Supreme Court rules that when a criminal defendant enters a guilty plea and is informed of the right to appeal, the Sixth Amendment does not require the defense counsel to file an appeal unless the defendant specifically asks him to do so. Only if the defense counsel disregards this direct order will his representation be found ineffective.

2002Ineffective Strategy Does Not Mean Ineffective Counsel

In Bell v. Cone, the U.S. Supreme Court refuses to find that an attorney provided ineffective assistance of counsel when he decided at the sentencing phase of a death-penalty trial not to call witnesses or to make a final argument. Given the brutality of the crime (the murders of two elderly victims), the defense counsel refused to make a closing argument, which, in turn, deprived the prosecution of its ability to make one, sparing the jury from hearing again the details of the crime. The Court finds that this was a “tactical decision about which competent lawyers might disagree” and therefore, it could not be found to have violated the Sixth Amendment.

2003Court Restates Right To Effective Counsel In Capital Cases

In Wiggins v. Smith, the U.S. Supreme Court invalidates the death sentence of Kevin Wiggins on the ground that he had ineffective assistance of counsel, in violation of the Sixth Amendment, during the sentencing phase of his trial. The Court bases its ruling on the fact that Wiggins’ background included childhood abuse, as well as mental illness and borderline mental retardation, but defense lawyers did not present such evidence to the jury as mitigating factors that could have prevented the death penalty from being imposed.

2009Limits Eased On Questioning Suspects

The U.S. Supreme Court overturns its 1986 ruling in Michigan v. Jackson that barred police from questioning a suspect once the suspect had requested a lawyer at a court hearing. In Montejo v. Louisiana, the Court eases those restrictions, saying the previous ruling was “unworkable” and allowed some guilty suspects to go free. The dissenting opinion stresses that the Court’s 1986 decision had protected the fundamental right to counsel.

2019Attorneys Must Follow Client’s Instructions To Appeal, Despite Waiver

In Garza v. Idaho, the U.S. Supreme Court says in a 6-3 ruling that attorneys cannot ignore their clients’ instructions to file appeals from criminal convictions even if the clients signed an agreement to waive appeals as part of their plea agreements. If the attorneys refuse, that is ineffective assistance of counsel.