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26 Am. Crim. L. Rev. 1599 (1988-1989)
The Right to Counsel Clause of the Sixth Amendment

handle is hein.journals/amcrimlr26 and id is 1607 raw text is: THE RIGHT TO COUNSEL CLAUSE OF THE SIXTH
The modern American concept of criminal justice has as a cornerstone the
right of the accused to mount and present his best defense, to have his day
in court. In a system of justice such as ours, concerned with due process
and fair trial proceedings, it is recognized that a day in court is not worth
much without the assistance of able counsel. That has not always been the
case. In historical England, the right to counsel was not granted to all ac-
cused. While the roots of the right to counsel provision of the sixth amend-
ment lie in English law, it was American colonists who took note of and
attempted to correct the inadequacies of the English criminal justice system of
the seventeenth century. Colonists expanded the right to counsel and other
rights of the accused and incorporated these rights into amendments to the
Constitution. Today, two hundred years after the adoption of the Bill of
Rights, America still grapples with the scope of the accused's right to counsel.
Until the mid-nineteenth century, the English treatment of an accused's right
to counsel ran counter to our concept of fairness and justice. An individual
accused of a misdemeanor, where punishment was most likely a fine or brief
imprisonment, had a right to retain counsel; a person accused of a felony,
where the penalty was at least imprisonment and often death, had no similar
right.' Perhaps this peculiarity of the right to assistance of counsel flowed
from the slight interest of the state in misdemeanors, allowing the court to
afford more protection to the accused, without much concern for the outcome
of the trial. In contrast, the State had a grave interest in felony cases and
cared deeply about the outcome of those trials.2 The nonrecognition of the
right of the accused to assistance of counsel was only one of a number of
rules which aided State prosecutions for treason and felonies in Elizabethan
England.3 The English government claimed that in performing the judicial duty
of ensuring a fair trial, the judge in fact functioned as a disinterested refer-
ree between two contestants rather than as an essential arm of crown power,
and therefore defense counsel was unnecessary.4
1. W. BEANEY, THE RIGHT TO COUNSEL IN AMERICAN COURTS 8-9 (1955). Retention of counsel
by the accused was mandatory, however, before the dreaded Star Chamber. Id.
2. Id.
3. R. PERRY, SOURCES OF OUR LIBERTIES 252 (1952). Other rules benefiting the prosecution
were: the accused was frequently kept in secret until the trial; the accused was given no notice of
evidence to be used against him nor afforded opportunity to prepare a case in defense; there was
no right to confront the accusers, and no right to call witnesses. Id.
4. W. BEANEY, supra note 1, at 11.


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