Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Starting in 1938, the Supreme Court recognized that in federal courts the Sixth Amendment requires the provision of counsel absent waiver.1 For state proceedings, however, the Court instead determined that the scope of the right to have counsel appointed stemmed from the Due Process Clause of the Fourteenth Amendment,2 and the applicability of the right depended on the circumstances facing the accused in a given case.3 The purpose behind examining the circumstances facing the accused was to afford some certainty in the determination of when failure to appoint counsel would result in a trial lacking in “fundamental fairness.” 4 Over time, the Court developed three often-overlapping categories of circumstances that required the furnishing of assistance of counsel to satisfy due process: (1) where the personal characteristics of the defendant made it unlikely he could obtain an adequate defense of his own,5 (2) where the charges or possible defenses to the charges were technically complex,6 and (3) where events occurring at trial raised problems of prejudice.7 The last characteristic especially had been used by the Court to set aside convictions occurring in the absence of counsel,8 and the last case rejecting a claim of denial of assistance of counsel had been decided by 1950.9

In 1961, the Court held that in a capital case a defendant need not establish a particularized need or prejudice resulting from absence of counsel.10 Rather, the Court concluded that assistance of counsel was a constitutional requisite in capital cases, although the Court did not expressly articulate whether its holding was based on the Sixth Amendment or the Due Process Clause of the Fourteenth Amendment.11 Two years later, the Court expanded the right to counsel in non-capital cases as well, holding unanimously in Gideon v. Wainwright12 “that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” 13 In a rejection of earlier precedent,14 the Court held that the Sixth Amendment right to assistance of counsel is “fundamental” and constitutionally required by the Fourteenth Amendment in state courts.15 Gideon stemmed from a felony charge, and the Court’s opinion in the case did not expressly decide whether the right to assistance of counsel could be claimed by defendants charged with misdemeanors or serious misdemeanors as well as by those charged with felonies.16 Later, however, the Court held that the right applies to any misdemeanor case in which imprisonment is imposed-indeed, no person may be sentenced to jail who was convicted in the absence of counsel, unless he validly waived his right.17 The Court subsequently extended the right to cases where a suspended sentence or probationary period is imposed, on the theory that any future incarceration that occurred would be based on the original uncounseled conviction.18

The absence of counsel when a defendant is convicted or pleads guilty goes to the fairness of the proceedings and undermines the presumption of reliability that attaches to a judgment of a court. Consequently the Court has held that Gideon is fully retroactive, so that convictions obtained in the absence of counsel without a valid waiver are not only voidable,19 but also may not be used subsequently either to support guilt in a new trial or to enhance punishment upon a valid conviction.20

Footnotes

1

Johnson v. Zerbst, 304 U.S. 458, 463 (1938) ( “The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.” (footnote omitted)); see Gideon v. Wainwright, 372 U.S. 335, 339–40 (1963) ( “We have construed [the Sixth Amendment] to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived.” ); see also Johnson v. United States, 352 U.S. 565, 566 (1957) (holding that a federal Court of Appeals “must, under Johnson v. Zerbst, afford one who challenges [the appeal certification] the aid of counsel unless he insist on being his own.” ); Douglas v. California, 372 U.S. 353, 356 (1963) (holding that a state must provide counsel to defendant granted a right of first appeal from a criminal conviction); but see Ross v. Moffitt, 417 U.S. 600, 619 (1974) (holding that defendants had no constitutional right to an appointment of counsel for discretionary appellate review); Murray v. Giarratano, 492 U.S. 1, 9–13 (1989) (holding that inmates sentenced to death do not have a constitutional right to counsel to seek postconviction relief)..

2

Betts v. Brady, 316 U.S. 455, 461–62 (1942), overruled by Gideon, 372 U.S. at 342.

3

This circumstance-dependent approach is typified by Powell v. Alabama, 287 U.S. 45, 71 (1932); see also Hawk v. Olson, 326 U.S. 271, 278 (1945) (reviewing underlying circumstances and holding that “denial of opportunity to consult with counsel on any material step after indictment or similar charge and arraignment violates the Fourteenth Amendment” ); Tomkins v. State of Missouri, 323 U.S. 485, 488 (1945) (citing Powell and reviewing underlying circumstances of prosecution to determine if accused’s deprivation of counsel violated Fourteenth Amendment); Williams v. Kaiser, 323 U.S. 471, 473–76 (1945) (same). For additional discussion of Powell, see Amdt6.5.1 Early Confrontation Clause Cases.

4

See Betts, 316 U.S. at 462 ( “Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.” ).

5

Commonly cited characteristics of the defendant demonstrating the necessity for assistance of counsel included youth and immaturity (Moore v. Michigan, 355 U.S. 155, 164 (1957); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 120–21 (1956); Uveges v. Pennsylvania, 335 U.S. 437, 442 (1948); Wade v. Mayo, 334 U.S. 672, 683–84 (1948); Marino v. Ragen, 332 U.S. 561, 562 (1947) (per curiam); De Meerleer v. Michigan, 329 U.S. 663, 665 (1947) (per curiam), limited education (Moore, 355 U.S. at 164), inexperience (Uveges, 335 U.S. at 442), and mental illness (Massey v. Moore, 348 U.S. 105, 108 (1954); Palmer v. Ashe, 342 U.S. 134, 136–37 (1951).

6

E.g., McNeal v. Culver, 365 U.S. 109, 114–16 (1961); Moore, 355 U.S. at 160; Claudy, 350 U.S. at 122; Williams v. Kaiser, 323 U.S. 471, 474–75 (1945); Rice v. Olson, 324 U.S. 786, 789 (1945).

7

Commonly cited examples included the deliberate or careless overreaching by the court or the prosecutor (Palmer, 342 U.S. at 137; Gibbs v. Burke, 337 U.S. 773, 776–78 (1949); Townsend v. Burke, 334 U.S. 736, 739–741 (1948); White v. Ragen, 324 U.S. 760, 764 (1945) (per curiam), prejudicial developments during the trial (Cash v. Culver, 358 U.S. 633, 637–38 (1959); Gibbs, 337 U.S. at 776–78), and questionable proceedings at sentencing (Townsend, 334 U.S. at 739–741).

8

In the 1960 case Hudson v. North Carolina the Court held that an unrepresented defendant had been prejudiced when his co-defendant’s counsel plead his client guilty in the presence of the jury, the applicable state rules to avoid prejudice in such situation were unclear, and the defendant in any event had taken no steps to protect himself. 363 U.S. 697, 702–03 (1960). The Hudson Court explained that a “layman would hardly be aware of the fact that he was entitled to any protection from the prejudicial effect of a codefendant’s plea of guilt” and would not “know the proper course to follow in order to invoke such protection.” Id. at 1318. According to the Court, the “very uncertainty of the North Carolina law in this respect serves to underline the petitioner’s need for counsel to advise him.” Id. Two years after Hudson, the Court reversed a conviction because the unrepresented defendant failed to follow various advantageous procedures that a lawyer might have utilized. Carnley v. Cochran, 369 U.S. 506, 508–512 (1962). The same year, the Court found that a lawyer might have developed several defenses and adopted several tactics to defeat a charge under a state recidivist statute, and that therefore the unrepresented defendant had been prejudiced. Chewning v. Cunningham, 368 U.S. 443, 445–47 (1962).

9

Quicksal v. Michigan, 339 U.S. 660, 666 (1950); see also Canizio v. New York, 327 U.S. 82, 86–7 (1946); Foster v. Illinois, 332 U.S. 134, 138–39 (1947); Gayes v. New York, 332 U.S. 145, 148–49 (1947) (plurality opinion); Bute v. Illinois, 333 U.S. 640, 675–76 (1948); Gryger v. Burke, 334 U.S. 728, 730–31 (1948); Cf. White, 324 U.S. at 764, 767 (1945) (acknowledging prima facie showing of constitutional violation stemming from lack of counsel but ultimately dismissing certiorari on other grounds).

10

See Hamilton v. Alabama, 368 U.S. 52, 55 (1961) ( “When one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted.” ).

11

Id.

12

372 U.S. 335 (1963).

13

Id. at 344.

14

Gideon overruled Betts v. Brady, 316 U.S. 455 (1942). Gideon, 372 U.S. at 339. For a discussion of Betts, see supra Amdt6.5.1 Early Confrontation Clause Cases.

15

372 U.S. at 342–43, 344.

16

Id. at 336, 344.

17

In its 1979 opinion in Scott v. Illinois, the Court held that “the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.” 440 U.S. 367, 373–74 (1979). In other words, the right to counsel hinges not on the possibility of imprisonment as authorized by the charging statute, but on the actual punishment imposed on the defendant. Id. Thus, Scott modified Argersinger v. Hamlin, 407 U.S. 25, 32–33, 37 (1972), which had held counsel required if imprisonment were possible. The Court has also extended the right of assistance of counsel to juvenile proceedings. See In re Gault, 387 U.S. 1, 36–37 (1967) ( “[T]he assistance of counsel is . . . equally essential for the determination of delinquency, carrying with it the awesome prospect of incarceration in a state institution until the juvenile reaches the age of 21.” ).

18

Alabama v. Shelton, 535 U.S. 654, 662 (2002).

19

Kitchens v. Smith, 401 U.S. 847, 847, 849 (1971) (per curiam); Burgett v. Texas, 389 U.S. 109, 114 (1967); accord Linkletter v. Walker, 381 U.S. 618, 628 n.13 (1965) ( “The rule in [Gideon], that counsel must be appointed to represent an indigent charged with a felony, was actually applied retrospectively in that case since Gideon had collaterally attacked the prior judgment by post-conviction remedies.” ).

20

Burgett v. Texas, 389 U.S. 109, 115 (1967); see also Loper v. Beto, 405 U.S. 473, 474, 483 (1972) (plurality opinion) (concluding that trial court should not have permitted impeachment of counseled defendant’s credibility in 1947 trial by introduction of prior uncounseled convictions in the 1930s); United States v. Tucker, 404 U.S. 443, 448–49 (1972) (holding that sentencing judge improperly relied on two previous convictions stemming from proceedings where defendant was without counsel); but see United States v. Bryant, 579 U.S. 140, 154–55 (2016) (holding that the use of prior, uncounseled tribal-court domestic abuse convictions as the predicates for a sentence enhancement in a subsequent conviction did not violate the Sixth Amendment right to counsel, as repeat offender laws like the one at issue penalize only the last offense committed by the defendant and because the Sixth Amendment right to counsel did not apply to the underlying tribal-court convictions); Nichols v. United States, 511 U.S. 738 (1994) (holding that “an uncounseled conviction valid under [Scott v. Illinois, 440 U.S. 367 (1979)] may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment” ); Lewis v. United States, 445 U.S. 55, 67 (1980) ( “Use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by a criminal sanction, is not inconsistent with [Court precedent].” ).