The Right to Counsel at the Preliminary Hearing
![handle is hein.journals/molr31 and id is 121 raw text is: THE RIGHT TO COUNSEL AT THE
PRELIMINARY HEARING
EDWARD H. HuNvALD, JR.*
In all criminal prosecutions, the accused shall enjoy the ight
... to have the assistance of counsel for his defense.
Amendment VI, Constitution of the United States
That in criminal p'rosecutions the accused shall have the right
to appear and defend, in person and by counsel ....
Section 18(a), Article I, Constitution of Missouri
In 1938, the Supreme Court of the United States in Johnson v.
Zerbst' ruled the sixth amendment of the federal constitution required the
appointment of counsel to represent indigent accused in federal criminal
proceedings unless the right to counsel were properly waived.
In 1942, in Betts v. Brady,2 the court ruled the sixth amendment
applied only to federal prosecutions, and the due process clause of the
fourteenth amendment did not require the appointment of counsel to
represent indigent accused in all state prosecutions. Whether criminal trial
without counsel resulted in a denial of due process was
to be tested by an appraisal of the totality of facts in a given
case. That which may, in one setting, constitute a denial of fun-
damental fairness, shocking to the universal sense of justice, may,
in other circumstances, and in the light of other considerations, fall
short of such denial.3
The idea that due process required representation by counsel only
*Professor of Law, University of Missouri.
1. 304 U.S. 458 (1938).
2. 316 U.S. 455 (1942).
3. Id. at 462. Cf. Powell v. Alabama, 287 U.S. 45, 71 (1932):
[W]e are of opinion that, under the circumstances just stated, the necessity
of counsel was so vital and imperative that the failure of the trial court to make
an effective appointment of counsel was likewise a denial of due process within
the meaning of the Fourteenth Amendment. Whether this would be so in other
criminal prosecutions, or under other circumstances, we need not determine. All
that it is necessary now to decide, as we do decide, is that in a capital case, where
the defendant is unable to employ counsel, and is incapable adequately of making
his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is
the duty of the court, whether requested or not, to assign counsel for him as a
necessary requisite of due process of law .... .
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The Right to Counsel at the Preliminary Hearing
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