You have the right to remain silent. You have the right to have an attorney present during any questioning. If you cannot afford an attorney, one will be appointed for you…

What does the Sixth Amendment “right to counsel” mean, though? Do you truly always have the right to an attorney of your choice, and do you truly always have the right to representation by an attorney regardless of what you are charged with?

Below, we will cover the basics of the history of the right to counsel and what it means, including:

• What the founding fathers intended when they drafted the Sixth Amendment right to assistance of counsel,
• The US Supreme Court’s changing interpretations of the right to counsel,
• Whether you have the right to choose your counsel, and
• When you do not have the right to counsel.

History of the Right to Counsel – What Did the Founding Fathers Intend?

As you may know, the original US Constitution did not contain a Bill of Rights – a fact that was a source of controversy for the founding fathers.

At the first meeting of the First Congress, James Madison proposed twenty amendments, which were later reduced to what are now the first ten amendments to the US Constitution – the Bill of Rights – and approved by the states.

The Sixth Amendment contains the right to assistance of 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.

But what did it mean?

At the time, many believed that a person should have the right to retain counsel to represent them, and most scholars agree that the framers’ intention in granting the accused the right “to have the assistance of counsel for his defense” was to ensure that there was a right to retain counsel if you had the means – a right that was often denied under English law at the time.

What else were the founding fathers thinking?

The Sixth Amendment Right to Counsel was Intended for White, Male Defendants Who Could Afford to Retain Counsel

The right to counsel was almost certainly intended for white, male landowners or other persons of means – they did not intend to give black Americans the right to counsel or any other rights enumerated in the Bill of Rights.

The right to counsel, and other constitutional rights, were also intended for male citizens – women were not even allowed to own property when the Sixth Amendment was ratified by the states. Also, the commonly used term “founding fathers” is a clue.

So, the next time an “originalist” tells you that the Constitution must be interpreted using the meaning that the constitutional clause would have had at the time it was enacted, you should know that what they are really saying is that women and non-whites do not have the right to counsel (or many of the other rights enumerated in the Constitution).

The intention of the founding fathers, most of whom were also slave owners, and the public meaning of the Bill of Rights at the time it was passed, was that it would not apply to women and non-whites.

Thankfully, the US Supreme Court and our nation’s thinking have evolved since then – what does the right to assistance of counsel mean today?

History of the Right to Counsel – What Does the “Right to Assistance of Counsel” Mean?

The meaning of the right to counsel has evolved and changed over time through US Supreme Court opinions interpreting it in light of our changing society. Since the Sixth Amendment’s ratification in 1791, the rights granted by the Supreme Court’s interpretations of the Sixth Amendment include:

• 1932: The Sixth Amendment right to (retain) counsel – which must include the right to consult with counsel and for counsel to prepare a defense – is guaranteed by the Due Process Clause of the Fourteenth Amendment (Powell v. Alabama),
• 1938: In federal court (but not state court), the Sixth Amendment guarantees the right to counsel even if counsel must be appointed (Johnson v. Zerbst),
• 1942: The right to counsel means a right to conflict-free counsel, and the court reverses a conviction where an attorney was appointed to represent a co-defendant on the morning of trial (Glasser v. US),
• 1963: The Sixth Amendment right to counsel (even when a defendant cannot afford to retain counsel) applies to the states (Gideon v. Wainwright),
• 1964: A suspect has the right to have counsel present when they are being questioned by police – even when the questioning is done by a codefendant at law enforcement’s direction (Massiah v. US),
• 1964: A defendant has the right to assistance of counsel when they are in police custody – even if they have not yet been indicted, and a statement obtained in violation of the right to counsel is inadmissible at trial (Escobedo v. Illinois),
• 1966: A defendant has the right to assistance of counsel once they are in police custody, police must inform a suspect of their right to counsel before questioning them if they are in police custody, and, if the police don’t comply, any statements obtained will be inadmissible in court (Miranda v. Arizona),
• 1967: A defendant is entitled to an attorney to review appellate claims (Anders v. California),
• 1967: A post-indictment lineup is a critical stage of the proceedings where a defendant is entitled to have counsel present (US v. Wade, Gilbert v. California),
• 1975: The right to counsel also means the right to self-representation, and the court cannot force a defendant to accept appointed counsel (Faretta v. California),
• 1977: Interrogation that triggers the right to counsel includes “casual conversation” designed to elicit incriminating responses (Brewer v. Williams),
• 1979: A defendant is not entitled to the assistance of counsel if they are not sentenced to jail time (Scott v. Illinois),
• 1980: When a cellmate is told by police to gather incriminating statements from a defendant, the statements are inadmissible because they violate the Sixth Amendment right to counsel (US v. Henry),
• 1984: “Standby counsel” can be forced on a defendant who elects to represent themselves (McKaskle v. Wiggins),
• 1984: Ineffective assistance of counsel that violates the Sixth Amendment must include 1) mistakes made by counsel and 2) prejudice – there was a reasonable probability that the outcome would have been different but for counsel’s errors (Strickland v. Washington),
• 1985: Defendants are entitled to effective assistance of counsel on appeal as well as at trial (Evitts v. Lucey),
• 1986: Once the Sixth Amendment right to counsel attaches, police cannot question a defendant without their attorney present or a valid waiver (Michigan v. Jackson),
• 1993: A defendant who is not mentally competent cannot waive their right to counsel (Godinez v. Moran),
• 2009: The US Supreme Court overrules Michigan v. Jackson – police can now question defendants even when they are represented by counsel, unless the defendant specifically and verbally requests their attorney (Montejo v. Louisiana).

This is not a complete list of US Supreme Court cases interpreting the Sixth Amendment right to counsel, but it will provide a good starting point if you are researching the issue.

Although it was not the intention of the founding fathers, the right to counsel now applies to every person – white, nonwhite, and female, whether you can afford to pay for retained counsel or not, but you do not have a right to counsel if you are not sentenced to jail time.

Criminal Defense Lawyers in Charleston, SC

Charleston, SC criminal defense attorney Grant B. Smaldone represents people charged with crimes in SC state and federal courts.

If you have been charged with a crime or believe that you are under investigation in the Charleston, Georgetown, or Myrtle Beach areas of SC, call now at (843) 808-2100 or send an email to schedule a free consultation.