Constitutional Issues Due Process & Right to Counsel The Facts 1. In federal cases, the right to legal counsel is guaranteed by the Fifth Amendment, which states that "no person shall be deprived of life, liberty or property without due process of law;" and the Sixth Amendment, which guarantees the right of the accused to have a lawyer in criminal cases. 2. The Sixth Amendment to the Constitution also guarantees that a defendant in a criminal prosecution has the "right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed... ." 3. The right to counsel in state criminal cases is guaranteed by the Fourteenth Amendment, particularly the Due Process Clause. 4. In Gideon v. Wainwright, 372 U.S. 335 (1963), Clarence Earl Gideon, a poor drifter accused in a Florida state court of felony theft, fought to have a lawyer appointed to his case. In deciding the appeal, the U.S. Supreme Court ruled that the right to counsel also extended to the state courts. Justice Hugo Black wrote, "(I)n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him..." 5. Argersinger v. Hamlin, 407 U.S. 25 (1972), extended the right to counsel to misdemeanor cases that might result in a person serving time in prison if found guilty. 6. Miranda v. Arizona, 384 U.S. 346 (1966) established that a person in custody has a right to legal counsel when being questioned by police or other law enforcement officials, based on the Fifth Amendment's self-incrimination protection. In In re Gault, 387 U.S. 1 (1967), the Court recognized the special need for juveniles to have a lawyer in trial-like hearings. 7. In McMann v. Richardson, 397 U.S. 759 (1970), the Court emphasized the right to effective legal assistance for the poor. Strickland v. Washington, 466 U.S. 668 (1984), made it difficult to prove ineffective legal assistance by narrowly defining a lawyer's lack of proper counsel. 8. In 1965, the Office of Legal Services was formed as a branch of the Office of Economic Opportunity. The new office effectively advanced the idea of legal services for the poor. In 1975, the Office of Legal Services became the Legal Services Corporation (LSC), a non-profit entity whose board is appointed by the President and confirmed by the U.S. Senate. It is funded by congress for its operations and for grants to local organizations providing legal services to the poor. Discussion Questions Can a person receive "equal protection" and "due process" in court without a lawyer? In a civil case, can a person who is not represented by a lawyer get a fair result against a person who is? Is the process for amending the Constitution too cumbersome, lengthy, or not difficult enough? In high-profile cases, is it really possible to find an impartial jury? Should legal representation be a guaranteed right for all people, rich or poor? Given the costs of hiring attorneys, should middle class people be entitled to subsidized legal assistance? Should legal services for the poor be a federal responsibility, or should it be entirely in state or local hands? Do differences in peoples' access to legal services lead to, or exacerbate, disparities among different groups in society? Speech Ideas/Talking Points Home | Constitutional Issues Home Tips on Volunteering Home