State Constitutions and Criminal Justice

By Barry Latzer | Go to book overview

5
Right to Counsel and to Confront Adverse Witnesses

The Sixth Amendment to the Constitution provides several rights in criminal prosecutions, including the two analyzed here: the right "to be confronted with the witnesses against him," and the right "to have the Assistance of Counsel for his defence." Most of this chapter is devoted to the right to counsel; confrontation issues are considered at the end.

The development of the right to counsel was one of the most significant areas of Warren Court reform of criminal procedure. Defendants were given the right to a lawyer at virtually all courtroom proceedings, before, during, and after trial, and the right was even extended to out-of-court events, such as lineups and certain interrogations. The Warren Court's famous Gideon rule, mandating state-paid counsel for the trial of indigent felony defendants, was adopted by the Burger Court for all cases, misdemeanors included, in which imprisonment was imposed.1 The Warren Court had extended the Gideon rule to various pre- and posttrial situations,2 and the Burger Court followed suit.3 There is one significant exception: the Burger-Rehnquist Court has repeatedly denied free counsel to indigents seeking discretionary review, that is, direct appeals beyond the first appeal to which a defendant is entitled, habeas corpus petitions, and petitions to the U.S. Supreme Court.4

Not only did Gideon generally fare well under Burger, but also another, more controversial right-to-counsel decision--Massiah v. United States-- was resuscitated by that tribunal.5 Massiah established that police may not deliberately elicit a confession from an indictee by electronically eavesdropping on his conversations. After a decade of disuse, the Burger

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