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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 AMENDMENT 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. I. Ti ENGLISH TRADroN 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. 1599

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