RIGHT TO COUNSEL 1 The Right to Counsel CJA 364 The Right to Counsel RIGHT TO COUNSEL 2 Individual Right to Counsel Our Sixth Amendment gives any person that is accused the option to invoke the assistance of counsel for their defense By our constitution our Right to Counsel is a constitutional guarantee and meant to protect the privilege that is granted to each citizen This does not exclude provisions in regards to any person who is an alleged criminal from the time they are taken into police custody If a person is unable to afford counsel since they have the individual Right to Counsel often a court appointed attorney is given for preliminary hearings A person s Right to Counsel is considered to be an important part of constitutional writing because what it allowed was a balance to be created and present within our criminal justice system States are required to make legal counsel available as needed for those who have been of a criminal act Sonneborn 2004 The Sixth Amendment and States States are required to make legal counsel available as needed for those who have been of a criminal act Sonneborn 2004 Although the Sixth Amendment has been regarded as absolute in our society today when the amendment was first written states were in no way obligated to give the RIGHT TO COUNSEL 3 accused counsel This lasted until a ratification of the amendment took place and included the requirement of states to do so were added It was recognized that having a right to counsel was vital to freedom because it allowed for those who have been wrongly accused to have protection Many who are opposed to the Sixth Amendment argue that this is the same because it guarantees those who have been accused and are guilty will be given the same opportunity for representation as someone who is innocent But it should be noted that we live in a society in which a person is considered innocent until proven guilty Ratification In order to build a successful case a person must be able to understand and examine constitutional laws To do this interpretation is vital The ratification of an amendment has proven to be important in today s criminal courts because of this A large portion of our laws has evolved as time has passed and their meanings have changed In order for the law of our land to be applied as effectively and accurately as possible many believe this is necessary in order for our criminal justice system to work The Sixth Amendment originally stemmed from a need to reinforce RIGHT TO COUNSEL 4 the standards that were set in place by colonial Americans when they were at war with the English The right to counsel was considered to be abused and could potentially be negatively at work against the defendant because it was believed the counsel who would be appointed would not their defendant s best interests in mind Nowhere in the amendment does it state that the person accused will be given counsel provided by the government Sonneborn 2004 Because of this an addendum had to be added later to be able to battle an issues of legality that could arise when facing the integration of the right to counsel clause as it applied to the modern system of criminal justice Self Representation The Sixth Amendment does not only outline provisions regarding the right to counsel it also states that person can represent himself or herself if they so choose Historical evidence shows us that the right of self representation has existed since the founding of our country A defendant that chooses to self represent must first voluntarily and knowingly decide to take their own case rather than illicit the assistance of their attorney This must be done in a timely manner and the person must understand and acknowledge that they are waving their right to counsel RIGHT TO COUNSEL 5 Next the courts are obligated to remind the person that if they choose to self represent that the decision may have ramifications However the right to self representation is not absolute The defendants must voluntarily and intelligently elect to conduct their own defense A trial judge may terminate self representation or appoint standby counsel even over a defendant s objection On the other hand a defendant has no constitutional right to the appointment of standby counsel see McKaskle v Wiggins 465 U S 168 1984 Finally in Martinez v Court of Appeal the Court held that a defendant has no right to represent himself on appeal law jrank org A person is allowed to decide to attempt self representation if they find they are unable to obtain a lawyer willing to take their case This is an option also if the defendant does not believe their lawyer is performing to the best of their ability to give legal advice The fees a lawyer charges may also be a reason a person would choose to take their own case However Self representation may not be an option for a judge who eliminates the option of self representation Israel et al 1993 The Fifth Amendment RIGHT TO COUNSEL 6 The Fifth Amendment is also implicated in a person s right to counsel as it is governed by the Constitution Self incrimination or not providing self incrimination evidence during the Miranda process could be considered grounds for a person s right to counsel due to the fact that any evidence gathered while the suspect is giving a statement could possibly grant probable cause What this means is that while being given the Miranda rights the suspect must have counsel in order to ensure that they are protected while they are in custody Waving Miranda rights is optional however if it can be proven that someone did so without having a full understanding of what that means then the information shared can technically not be used by the courts because it was obtained in an unlawful manner Israel et al 1993 A difference between the Fifth and Sixth Amendment protections is that the Fifth states that a person is not allowed to be questioned in regards to any case regardless of any information The Sixth simply gives protection over the direct case that the suspect is involved in Federal Implications At the federal level in the criminal court a person is required to RIGHT TO COUNSEL 7 distinguish between their rights to counsel when obtaining representation versus the state obtaining representation States have been accused of obtaining representation for the accused that were incompetent Because of this federal courts have now imposed rules in regards to the knowledge of the attorney to be appointed The attorney is required