Right to Counsel

The legal provision dictating it as a basic human right for the defendant to be given legal counsel has been identified as a crucial move to the realization of fairness and justice in our criminal justice system. This is because, it is evidently established that most of the American citizens do not have enough knowledge of their constitutional civil rights. The right to a legal counsel is clearly defined by the provisions of the sixth amendment of the American constitution (Kelly, 2009). On the other hand, the due process clause of the fourteenth amendment of the American constitution forces the application of the right to counsel at the state government court level (Kelly, 2009).

According to the sixth amendment interpretations by the US Supreme Court, all courts in the US should appoint a public legal counsel for defendants who are financially or psychologically challenged (Gardner, 2000). Just to be appreciated is the fact that, the supreme courts ruling in the Miranda v. Arizona case expanded the scope of the right to a counsel to cover interrogation proceedings of crime suspects detained in police custody (Kelly, 2009). This is because such was the only suitable legal tool for ensuring the effective protection of the Fifth Amendment’s right to be free from self-incrimination.

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Therefore, the right to a legal counsel remains a fundamental right for every criminal suspect from the time of arrest through conviction to the first appeal (Crawford, 2001). This essay seeks to identify various aspects of the right to a counsel and its development as well as its role in the criminal justice system. A discussion on the role of attorneys on the right to counsel and the concept of right to self representation is also given.

The main aspect of the right to counsel is to mitigate unfair execution of justice against crime suspects in the American criminal justice system. To realize this, the right seeks to ensure that a defendant remains innocent until convicted based on reliable evidence by a court. Thus, the right to counsel law serves to ensure that crime suspects are not subjected to unfair and/or discriminative practices by the prosecution (Crawford, 2001).

Still, by providing for the right to a counsel while at police custody, the law seeks to protect crime suspects against misconducts by the law enforcement such forcing suspects into self-incrimination. Just to be stated is the fact that the protection dictated by the right to counsel are due to the fact that not all Americans have clear knowledge of their constitutional rights during a criminal justice proceeding.

The right to a counsel finds its roots on the provisions of the sixth amendment of the constitution. This provision states that a crime suspect has a constitutional right to have a counsel during their court case trials (Kelly, 2009). As per the interpretations of the Supreme Court, this provision of the sixth amendment is applicable to both federal and state court based on the due process clause of the fourteenth amendment (Kelly, 2009).

Still on the development of the right to counsel, the law also protects the right against self-incrimination found in the Fifth Amendment to the constitution (Crawford, 2001). This followed the Supreme Court’s decision during the Miranda v. Arizona case. The court found the only best tool to protect the right of a crime suspect to be free from self-incrimination was by imposing the right to counsel for crime suspect during, arrest, detention, and interrogation.

Therefore, according to the interpretation of the provisions of the Fifth Amendment by the Supreme Court, the right to counsel attaches to the criminal procedure as early as from the time of arrest. While in police custody, the law enforcement are legally bound to appoint a legal counsel to the crime suspects prior to interrogation if the victim is financially or mentally disadvantaged. However, this right is limited as it is not legally binding after defendant goes through their first case appeal (Gardner, 2000).

Despite the legal dictates on the right to a counsel to a crime suspect during criminal proceedings, the law allows for the right to self-representation by the crime suspect. Nevertheless, the Supreme Court defined conditions, which should be met for an individual to waiver their right to legal counsel in its ruling on the Miranda v. Arizona case. According to the ruling, for one to waiver their right to counsel, the decision must be informed, deliberate, and dictated by the individuals intellect ability (Crawford, 2001).

Based on this ruling, evidence against a crime suspects collected without a legal counsel are admissible in court only after the law enforcement provides sufficient proof the defendant willingly and intelligently waived their right to counsel (Tomkovicz, 2002). In order fairness and justice during the criminal proceeding to prevail, the law enforcement is legally bound to inform crime suspects of their right to counsel prior to beginning interrogation. Such are also common practices by the court during court trails of the defendant.

In addition, a different approach on the right to self-representation is applied for the mentally impaired as well as juveniles. Due to the question of maturity, intent, knowledge, and intellect, waiving the right to counsel by juveniles and the mentally impaired is marked with much legal objections (Tomkovicz, 2002). To secure this, states like Illinois and Texas do not allow self-representation by juveniles and the mentally impaired (Tomkovicz, 2002). On the other hand, most of the other states of America dictate for consultation with a legal counsel prior to waiving of the right to counsel by the defendant.

Attorneys play a number of roles on the right to counsel. They are charged with the sole responsibility of ensuring that the defendant is given fair and just treatment during the criminal justice proceeding (Gardner, 2000). To achieve this, they give the defendant legal advice on their constitutional rights as well as the expectation during each stage of the case. Another role of the attorney is to protect the constitutional rights of the defendant by identifying and mitigating any act of misconduct by the police or prosecution during the proceeding (Tomkovicz, 2002).

The attorneys as legal counsel function to defend the defendant in their case. They should conduct investigation and crosscheck the accuracy of the allegations made against the defendant by the prosecution (Tomkovicz, 2002). The attorneys also dictate the formulation, asking, and answering of questions by the defendant. They can ever object questions directed to the defendant. Lastly, attorneys serve to present before the court any form of legal defense that can secure the release or lighten the sentence of the defendant.

In conclusion, the right to counsel is a basic right for every crime suspect during their criminal justice proceedings. According to the interpretation of the law by the Supreme Court, this right is applicable to all American criminal justices courts due to the due process clause provisions of the fourteenth amendment (Crawford, 2001). The application of the right to counsel to protect the fifth amendments provisions on the right against self-incrimination is founded on the Miranda v. Arizona case ruling. However, an individual can waive their right to a counsel provided such decisions are based on intent and intelligence.


Crawford, K. (2001). The Sixth Amendment Right to Counsel. Retrieved April 5, 2010, from http://findarticles.com/p/articles/mi_m2194/is_7_70/ai_77417465/

Gardner, M. (2000). The Sixth Amendment Right to Counsel and Its Underlying Values: Defining the Scope of Privacy Protection. Journal of criminal Law and Criminology, 90, 8-42.

Kelly, D. (2009). The Right to Counsel. Retrieved April 5, 2010, from http://criminal.findlaw.com/crimes/criminal_rights/criminal_rights_courtroom/right_to_counsel.html

Tomkovicz, J. (2002). The Right to the Assistance of Counsel: A Reference Guide to the United States constitution. Westport, CT: Greenwood Press.



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