RIGHT TO COUNSEL, DUE PROCESS, AND THE FEDERAL COURTS
THE cases and problems arising under the counsel provision of the Sixth Amendment in the federal courts and under state constitutional and statutory counsel provisions in state courts have been considered thus far. It is now necessary to examine the restrictions and standards imposed on state criminal proceedings in respect to counsel by the due-process clause of the Fourteenth Amendment as construed and applied by the United States Supreme Court. After a brief survey of due- process antecedents, the leading Supreme Court counsel cases will be analyzed in order to make possible a statement and criticism of the present doctrine of the right to counsel in state trials. Finally, ways of minimizing the difficulties and confusions inherent in the existing doctrine will be suggested.
Problems of interpretation lurk in almost any legal principle or verbal formulation of the right, but it is safe to say that none has surpassed "due process of law" as a source of discussion and argument. The expression originated formally as a statutory phrase in 1355: "No man of what state or condition he be, shall be put out of his land or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death, without he be brought to answer by due process of law."1 It had the same meaning as the earlier phrase "law of the land" found in Section 39 of Magna Carta (in 1225). Both signified that certain established modes of trial were to be followed.2 Without opposition it was included in the Fifth Amendment.____________________