Right To Counsel - in The United States

In The United States

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.

The assistance of counsel clause includes, as relevant here, five distinct rights: the right to counsel of choice, the right to appointed counsel, the right to conflict-free counsel, the effective assistance of counsel, and the right to represent oneself pro se.

A defendant does not have a Sixth Amendment right to counsel in any civil proceeding, including a deportation hearing (even though deportability is often a collateral consequence of criminal conviction).

Choice of counsel

Subject to considerations such as conflicts of interest, scheduling, counsel's authorization to practice law in the jurisdiction, and counsel's willingness to represent the defendant (whether pro bono or for a fee), criminal defendants have a right to be represented by counsel of their choice. The remedy for erroneous deprivation of first choice counsel is automatic reversal.

Appointment of counsel

A defendant unable to retain counsel has the right to appointed counsel at the government's expense. While the Supreme Court recognized this right gradually, it currently applies in all federal and state criminal proceedings where the defendant faces authorized imprisonment greater than one year (a "felony") or where the defendant is actually imprisoned.

A defendant does not have a right to appointed counsel if he or she is not sentenced to actual imprisonment and could not have been sentenced for more than one year, even if that conviction is later used to enhance sentencing for another crime, or even if the revocation of probation may result in actual imprisonment. Nor does the defendant have the right to appointed counsel to raise frivolous arguments on direct appeal, or to raise any arguments on habeas or other collateral appeal, even if facing execution.

Conflict-free counsel

Whether counsel is retained or appointed, the defendant has a right to counsel without a conflict of interest. If an actual conflict of interest is present, and that conflict results in any adverse effect on the representation, the result is automatic reversal. The general rule is that conflicts can be knowingly and intelligently waived, but some conflicts are un-waiveable.

Ineffective assistance of counsel

In Strickland v. Washington (1984), the Court held that, on collateral review, a defendant may obtain relief if the defendant demonstrates both (1) that defense counsel's performance fell below an objective standard of reasonableness (the "performance prong") and (2) that, but for the deficient performance, there is a reasonable probability that the result of the proceeding would have been different (the "prejudice prong").

To satisfy the prejudice prong of Strickland, a defendant who pleads guilty must show that, but for counsel's deficient performance, he or she would not have plead guilty. In Padilla v. Kentucky (2010), the Court held that counsel's failure to inform an alien pleading guilty of the risk of deportation fell below the objective standard of the performance prong of Strickland and permitted an alien who would not have plead guilty but for such failure to withdraw his guilty plea.

Pro se representation

Further information: Pro se legal representation in the United States

In Faretta v. California (1975), the Court held that a criminal defendant has the right to knowingly and voluntarily opt for pro se representation at trial. This right is not per se violated by the appointment of standby counsel. There is no constitutional right to self-representation on appeal.