Right to counsel
Encyclopedia
Right to counsel is currently generally regarded as a constituent of the right to a fair trial
, allowing for the defendant to be assisted by counsel (i.e. lawyer
s), and if he cannot afford his own lawyer, requiring that the government should appoint one for him/her, or pay his/her legal expenses. However, this has not historically always been the case in all countries.
upon "arrest and detention", as well as the right to habeas corpus
. However, there is no right to counsel during a criminal trial, except in specific situations.
In October 2010
, the Supreme Court of Canada
ruled that the right to counsel during interrogation
is not absolute in Canada
. It said that importing US-style Miranda Rights was not in the interests of Canada. The ruling was a bare majority
ruling, with a strenuous voiced minority opinion stating that it would lead to more false confessions and bad convictions
.
of Criminal Instruction, adopted in France
in 1808 and inspiring many similar codes in civil law
countries, made it compulsory that the defendant should have a lawyer when tried in the assize courts (which judged severe crimes).
in his A Treatise of the Pleas of the Crown: or a system of the principal matters, relating to that subject, digested under their proper heads
Vol. II. of 1721 wrote:
This changed as more and more prosecutions became, for reasons of public policy, funded by the Crown – all successful prosecutions from 1778 onwards being so funded – who employed professional counsel. An innate sense of fair-play prevailed therefore, permitting defence counsel to be present, albeit at the defendant’s own expense. Penurious defendants were obviously at a significant disadvantage.
, while the right to counsel in trials by the federal government was recognized by the US Bill of Rights, the affirmation that this right extended to cases tried by state courts (i.e. most criminal trials, including for crimes such as murder
in most cases) came much later. While some state supreme courts affirmed this right during the 19th century, it was only in the 1963 decision Gideon v. Wainwright
that the American Supreme Court affirmed the right for defendants to have counsel in felony
trials.
As stated in Brewer v. Williams
, 430 U.S. 387 (1977), the rights granted by 6th and 14th Amendments “mean at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or arraignment.” 430 U.S. at 398. Brewer goes on to conclude that once adversary proceedings have begun against a defendant, he has a right to legal representation when the government interrogates him. 430 U.S. at 401, citing Massiah v. United States
, 377 U.S. 201 (1964).
In Louisiana, the state Supreme Court has discussed at what point the right to counsel attached under the state and federal constitutions in State v. Hattaway, 621 So. 2d 796 (La. 1993). In this case, the Court repeated the Brewer condition that the Sixth Amendment right to counsel attaches after the commencement of adverse judicial criminal proceedings, and that the right exists only during pre-trial confrontations that can be considered "critical stages" during adverse judicial criminal proceedings. 621 So.2d at 801. No clear definition of a critical stage was given, but interrogation of a defendant by police officers was offered as an example of a critical stage in that case.
Some states extend the right to counsel to all matters where a defendant's liberty interest is threatened. The New Jersey Supreme Court unanimously held that, regardless of whether the proceeding is labeled as civil, criminal, or administrative, if a defendant faces a loss of liberty, she or he is entitled to appointed counsel if indigent. Anne Pasqua, et al. v. Hon. Gerald J. Council, et al., 186 N.J. 127 (2006) (March 2006).
The United States Supreme Court has held in Brewer v. Williams, 430 U.S. 387, 399 (1977) that when a defendant is arrested, "arraigned on [an arrest] warrant before a judge," and "committed by the court to confinement," "[t]here can be no doubt . that judicial proceedings ha[ve] been initiated." and the Sixth Amendment
right to counsel has attached. (Rothgery v. Gillespie County
, 554 U.S. 191)
In the 2009-2010 term of the United States Supreme Court, it was handed down that a suspect's request for legal counsel is only good for fourteen days after the suspect is released from police custody. Maryland v. Shatzer
, 130 S. Ct. 1213 (2010).
Right to a fair trial
The right to fair trial is an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict voided....
, allowing for the defendant to be assisted by counsel (i.e. lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s), and if he cannot afford his own lawyer, requiring that the government should appoint one for him/her, or pay his/her legal expenses. However, this has not historically always been the case in all countries.
In Canada
The right to run is guaranteed under Section Ten of the Canadian Charter of Rights and FreedomsSection Ten of the Canadian Charter of Rights and Freedoms
Section Ten of the Canadian Charter of Rights and Freedoms specifies rights upon arrest or detention, including the rights to consult a lawyer and the right to habeas corpus. As a part of a broader range of legal rights guaranteed by the Charter, section 10 rights may be limited by the Oakes test...
upon "arrest and detention", as well as the right to habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. However, there is no right to counsel during a criminal trial, except in specific situations.
In October 2010
October 2010
October 2010 was the tenth month of that year. It began on a Friday and concluded after 31 days on a Sunday.-Portal:Current events:This is an archived version of Wikipedia's Current events Portal from October 2010....
, the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
ruled that the right to counsel during interrogation
Interrogation
Interrogation is interviewing as commonly employed by officers of the police, military, and Intelligence agencies with the goal of extracting a confession or obtaining information. Subjects of interrogation are often the suspects, victims, or witnesses of a crime...
is not absolute in Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
. It said that importing US-style Miranda Rights was not in the interests of Canada. The ruling was a bare majority
Majority
A majority is a subset of a group consisting of more than half of its members. This can be compared to a plurality, which is a subset larger than any other subset; i.e. a plurality is not necessarily a majority as the largest subset may consist of less than half the group's population...
ruling, with a strenuous voiced minority opinion stating that it would lead to more false confessions and bad convictions
False imprisonment
False imprisonment is a restraint of a person in a bounded area without justification or consent. False imprisonment is a common-law felony and a tort. It applies to private as well as governmental detention...
.
In France
The Napoleonic CodeNapoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
of Criminal Instruction, adopted in France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
in 1808 and inspiring many similar codes in civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
countries, made it compulsory that the defendant should have a lawyer when tried in the assize courts (which judged severe crimes).
England and Wales
Before the Prisoners' Counsel Act 1836, felony defendants did not have the formal right of being represented by a counsel in English courts although, from the mid-18th century such had been routinely indulged where defendants could afford them. It was thought, at the time, that the presence of defence counsel would serve no purpose in criminal proceedings, where what matters is deciding fact: the defendant should simply tell the truth to the court, without the interference of some counsel. William HawkinsWilliam Hawkins (serjeant-at-law)
William Hawkins was a barrister and serjeant-at-law, best known for his work on the English criminal law, Treatise of Pleas of the Crown....
in his A Treatise of the Pleas of the Crown: or a system of the principal matters, relating to that subject, digested under their proper heads
Hawkins' Treatise of Pleas of the Crown
A Treatise of Pleas of the Crown; or, a system of the principal matters relating to that subject, digested under proper heads is an influential treatise on the criminal law of England, written by William Hawkins, serjeant-at-law, and later edited by John Curwood, barrister...
Vol. II. of 1721 wrote:
- "[I]t requires no manner of Skill to make a plain and honest Defence, which ... is always the best; the Simplicity and Innocence, artless and ingenuous Behaviour of one whose Conscience acquits him, having something in it more moving and convincing than the highest Eloquence of a Person speaking in a cause not their own."
This changed as more and more prosecutions became, for reasons of public policy, funded by the Crown – all successful prosecutions from 1778 onwards being so funded – who employed professional counsel. An innate sense of fair-play prevailed therefore, permitting defence counsel to be present, albeit at the defendant’s own expense. Penurious defendants were obviously at a significant disadvantage.
In the United States
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, while the right to counsel in trials by the federal government was recognized by the US Bill of Rights, the affirmation that this right extended to cases tried by state courts (i.e. most criminal trials, including for crimes such as murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
in most cases) came much later. While some state supreme courts affirmed this right during the 19th century, it was only in the 1963 decision Gideon v. Wainwright
Gideon v. Wainwright
Gideon v. Wainwright, , is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own...
that the American Supreme Court affirmed the right for defendants to have counsel in felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
trials.
As stated in Brewer v. Williams
Brewer v. Williams
Brewer v. Williams, , is a decision by the United States Supreme Court that clarifies what constitutes "interrogation" for the purposes of Miranda warnings. Under Miranda v. Arizona, police are forbidden from interrogating a suspect once he has asserted his right to counsel under the Sixth Amendment...
, 430 U.S. 387 (1977), the rights granted by 6th and 14th Amendments “mean at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or arraignment.” 430 U.S. at 398. Brewer goes on to conclude that once adversary proceedings have begun against a defendant, he has a right to legal representation when the government interrogates him. 430 U.S. at 401, citing Massiah v. United States
Massiah v. United States
Massiah v. United States, 377 U.S. 201 , was a case in which the Supreme Court of the United States held that the Sixth Amendment to the United States Constitution prohibits the government from eliciting statements from the defendant about themselves after the point that the Sixth Amendment right...
, 377 U.S. 201 (1964).
In Louisiana, the state Supreme Court has discussed at what point the right to counsel attached under the state and federal constitutions in State v. Hattaway, 621 So. 2d 796 (La. 1993). In this case, the Court repeated the Brewer condition that the Sixth Amendment right to counsel attaches after the commencement of adverse judicial criminal proceedings, and that the right exists only during pre-trial confrontations that can be considered "critical stages" during adverse judicial criminal proceedings. 621 So.2d at 801. No clear definition of a critical stage was given, but interrogation of a defendant by police officers was offered as an example of a critical stage in that case.
Some states extend the right to counsel to all matters where a defendant's liberty interest is threatened. The New Jersey Supreme Court unanimously held that, regardless of whether the proceeding is labeled as civil, criminal, or administrative, if a defendant faces a loss of liberty, she or he is entitled to appointed counsel if indigent. Anne Pasqua, et al. v. Hon. Gerald J. Council, et al., 186 N.J. 127 (2006) (March 2006).
The United States Supreme Court has held in Brewer v. Williams, 430 U.S. 387, 399 (1977) that when a defendant is arrested, "arraigned on [an arrest] warrant before a judge," and "committed by the court to confinement," "[t]here can be no doubt . that judicial proceedings ha[ve] been initiated." and the Sixth Amendment
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
right to counsel has attached. (Rothgery v. Gillespie County
Rothgery v. Gillespie County
Rothgery v. Gillespie County, 554 U.S. 191 , was a case decided by the United States Supreme Court.-Factual background:Texas police had relied on erroneous information that Rothgery had a previous felony conviction to arrest him as a felon in possession of a firearm...
, 554 U.S. 191)
In the 2009-2010 term of the United States Supreme Court, it was handed down that a suspect's request for legal counsel is only good for fourteen days after the suspect is released from police custody. Maryland v. Shatzer
Maryland v. Shatzer
Maryland v. Shatzer, No. 08-680 , was a case in which the Supreme Court of the United States held that police may re-open questioning of a suspect who has asked for counsel if there has been a 14-day or more break in Miranda custody...
, 130 S. Ct. 1213 (2010).