Do you believe the right to counsel is a meaningful one, given all the interpretation it has received by the Supreme Court? Identify amendments relevant to this issue
The right to counsel has been provided mostly to individuals who could afford it until 1963 when in case Gideon v. Wainwright the Supreme Court recognized that “lawyers in criminal courts are necessities, not luxuries” (Worrall, 2010, p. 332). The right to counsel is proclaimed by the Sixth Amendment and guaranteed by the Fifth and Fourteenth Amendments and is applied to cases which lead to loss of liberty.
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The meaning of the right to counsel includes the right of defendants who have no funds for hiring a lawyer to assistance of an appointed counsel which is especially meaningful in proceedings leading to imprisonment as opposed to cases in which the deprivation of freedom is a mere possibility. Under the Sixth Amendment, the critical stage analysis is required for defining whether the right to counsel has to be applied in a particular case.
The Sixth Amendment focuses on the prejudice to the defendants’ rights and the counsels’ chances for preventing it. Under the Fifth Amendment, which proclaims the privilege against self-incrimination, suspected are provided with the right to counsel. The due process clause as a part of the Fourteenth Amendment guarantees the right to counsel under certain conditions and on a case-by-case basis.
However, these amendments guarantee the assistance of counsel if it is necessary without requiring it. Tomkovicz (2002) noted that “while the Sixth Amendment provides counsel as an essential guarantee of fundamental fairness in the adversarial criminal process, the Constitution does not force a lawyer upon a defendant” (p. 64). The defendants have the right to represent themselves in the court on the condition that they have got enough competence and intelligence to do so.
The right to counsel is meaningful for defendants who lack funds for hiring a lawyer and can be imprisoned. At the same time, the constitutional amendments do not restrict defendants’ right to represent themselves in the court.
What is meant by “effective assistance of counsel?” Is the definition of “effective assistance of counsel” too restrictive?
While the counsel’s assistance has a significant impact on the course of criminal proceedings, the level of attorney’s competence is crucial for conviction or acquittal of defendants. Though the Sixth Amendment does not specify the quality of the counsel’s help, the Supreme Court interprets it as effective assistance. The definition of the effective assistance of counsel is not restrictive because the involvement of parameters of attorney’ performance and prejudice is reasonable.
The level of professionalism is especially significant for defending counsels, taking into account the consequences of their unprofessional errors and their responsibility before the accused and community in general. Tomkovicz (2002) noted that “Lawyers must render ‘reasonably effective assistance’ under prevailing professional norms” (p. 170).
At the same time, the responsibility of fulfilling their professional functions during the criminal proceedings cannot be regarded as enormous burden. “Defense counsel’s performance will be considered adequate if he or she avoids conflicts of interest, serves as an advocate for the defendant’s case” (Worrall, 2010, 340).
The main requirements of effective assistance include the prohibition for representing more than one defendant in the same trial, representing some witnesses in previous trials, contracts with publishing companies for disclosing the secret materials of the proceedings and other conflicts of interests. The defendants can file the claims of ineffective assistance at their discretion. However, they will need to prove not only that the unprofessional errors of a counsel have occurred but also that they influenced the end results of the trial.
The definition of effective counsel is not restrictive because it provides defendants with the right to file claims in case if the results of the trial hinged on the attorney’s competence, protecting the right of counsels at the same time.
Tomkovicz, J. (2002) The right to the assistance of counsel: A reference guide to the United States. Westport, CT: Greenwood Publishing Group.
Worrall, J. (2010). Criminal procedure: From first contact to appeal (3rd ed.). Upper Saddle River, NJ: Pearson