The Right to Counsel

The Right to Counsel

Lori Cierkowski

CJA/364

April 30, 2012
Carl Schiff

The Right to Counsel

The Constitution of the United States and the Bill of Rights grant citizens privileges that can be interpreted in different ways, the right to counsel being one of them. The right to counsel is contained in the 6th and 14th Amendments of the United States Constitution while the 5th Amendment gives way to avoidance of self-incrimination. It holds the same meaning but stated differently to account for a variety of circumstances.
The 5th Amendment The provisions of the 5th Amendment read, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation,” ("Fifth amendment: an," n.d. para 1). To this end, offenders plead the 5th Amendment when the choice is made that answering such questions would result in self-incrimination in regards to the charges at hand. This strategy allows the offender to be questioned by their own legal counsel while still retaining the ability to choose not to answer cross examination questions that may make verifiable proof of connection to the charge. Using such tactics can be as beneficial as it is damaging. Juries like to be able to hear from the accused, listen to what they have to say, and watch their body language. Refusing to take the stand in their own defense raises questions as to their guilt or innocence, even though it is the evidence they are required to follow. Although the 5th Amendment was originally applied to federal cases, the consideration of Due Process led the U.S. Supreme Court to apply the same principle to the 14th Amendment. .The 14th Amendment In contrast to the 5th Amendment, the 14th Amendment, ratified on July 9, 1886, guaranteed the population, “all persons born or naturalized in the United States,” which included former slaves recently freed. In addition, it forbids states from denying any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of the laws.” By directly mentioning the role of the states, the 14th Amendment greatly expanded the protection of civil rights to all Americans and is cited in more litigation than any other amendment,” ("14th amendment to," n.d. para 1). It is apparent that attempts to give the general public as many freedoms to be individuals was initiated very early and required additions and changes as the times changed. In allowing such freedoms there also had to be a limit as well as exceptions and while people were given these rights it was also necessary to create standards for law enforcement to follow, ensuring the protection of these rights. When the 6th Amendment was created it made sure to protect the individual’s right to counsel almost as if they could see the addition of the 14th and other Amendments protecting the right of due process. The 6th Amendment The 6th Amendment was established to draw a definitive line within the justice system, protecting the rights of the people to proper counsel. “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 defense,” ("Sixth amendment -," n.d. para. 1). This amendment laid the ground work for courtroom proceedings. While times and society have changed so has the context to some of the amendments. As in the 6th Amendment right to be tried by an impartial jury where the crime was committed, the change to our current society warrants the ability to change venues for high profile cases. When the media attention, which fully uses their right to freedom of speech, may have contaminated the local population making it next to impossible to find an impartial jury a change in venue can be requested under the provision that an impartial jury cannot be found in the current location. Eventually the question would arise, when are the people granted the right to counsel? The Right to Counsel While the provision had been granted for the right to counsel, the question remained of when to apply that right. In Brewer v Williams (430 U.S. 387 1977) it was determined that the right to counsel was applicable once proceedings against the accused had begun, it then concluded that an arrest, arraignment before a judge, or remanded to jail by the court constituted the beginning of judicial proceedings, allowing the attachment of right to counsel at that time. Once a person requests proper counsel, interrogations are supposed to be suspended. At issue is the fact that there are too many instances where this provision has been ignored, Brewer v Williams being one of many. The right to counsel does not just apply to hiring or being appointed proper representation, it includes the accused the ability of self-representation. The Right to Self-Representation “The Court has held that the Sixth Amendment, in addition to guaranteeing the right to retained or appointed counsel, also guarantees a defendant the right to represent himself. It is a right the defendant must adopt knowingly and intelligently; under some circumstances the trial judge may deny the authority to exercise it, as when the defendant simply lacks the competence to make a knowing or intelligent waiver of counsel or when his self-representation is so disruptive of orderly procedures that the judge may curtail it. The right applies only at trial; there is no constitutional right to self-representation on direct appeal from a criminal conviction,” ("Self-representation," n.d. para. 1). Of course with such a decision there are consequences. Upon self-representation the accused cannot appeal on the grounds of inadequate counsel or the quality of his selected counsel denied him the right to effective assistance to counsel. The choice of self-representation should be chosen only with a full understanding of the charges, the law, and your ability to represent yourself effectively. Another provision of self-representation is also the ability to testify on one’s own behalf. There are numerous examples of self-representation but one, McKaskle v. Wiggins (465 U.S. 168 1984) set yet another precedence for standby counsel, counsel appointed by the courts to assist in self-representation. “At his state robbery trial, respondent was permitted to proceed pro se, but the trial court appointed standby counsel to assist him. Before and during the trial, respondent frequently changed his mind regarding the standby counsel 's role, objecting to counsel 's participation on some occasions but agreeing to it on other occasions. Following his conviction, respondent unsuccessfully moved for a new trial on the ground that his standby counsel had unfairly interfered with his presentation of his defense. After exhausting direct appellate and state habeas corpus review, respondent filed a habeas petition in Federal District Court, claiming that standby counsel 's conduct deprived him of his right to present his own defense, as guaranteed by Faretta v. California, 422 U. S. 806. The District Court denied the petition, but the Court of Appeals reversed, holding that respondent 's Sixth Amendment right of self-representation was violated by the unsolicited participation of overzealous standby counsel,” ("Mckaskle v. wiggins," n.d. para. 1). Conclusion The justice system is a continual work in progress, creating and amending laws in an effort to protect human rights while still enabling effective prosecution. As times continue to change, offenses become more severe, and crime in general is on the rise, lawmakers are constantly at the drawing board protecting our nation and our freedom. The research conducted led way to finding more examples than anticipated. Finding ways to close loopholes whiles still adhering to the rights guaranteed in the Constitution cannot be an easy task. The future is ever changing and growing, so are the laws that govern what is legally, and sometimes morally, acceptable.

References
Fifth amendment: an overview. (n.d.). Retrieved from

http://www.law.cornell.edu/wex/fifth_amendment

14th amendment to the u.s. constitution. (n.d.). Retrieved from

http://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html

Sixth amendment - rights of accused in criminal prosecutions. (n.d.). Retrieved from

http://caselaw.lp.findlaw.com/data/constitution/amendment06/

Self-representation. (n.d.). Retrieved from

http://law.justia.com/constitution/us/amendment-06/16-self-representation.html

Mckaskle v. wiggins - 465 u.s. 168 (1984). (n.d.). Retrieved from

http://supreme.justia.com/cases/federal/us/465/168/

References: Fifth amendment: an overview. (n.d.). Retrieved from http://www.law.cornell.edu/wex/fifth_amendment 14th amendment to the u.s. constitution. (n.d.). Retrieved from http://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html Sixth amendment - rights of accused in criminal prosecutions. (n.d.). Retrieved from http://caselaw.lp.findlaw.com/data/constitution/amendment06/ Self-representation. (n.d.). Retrieved from http://law.justia.com/constitution/us/amendment-06/16-self-representation.html Mckaskle v. wiggins - 465 u.s. 168 (1984). (n.d.). Retrieved from http://supreme.justia.com/cases/federal/us/465/168/