The right to counsel was established in the United States Constitution. The Due Process clause of the Fourteenth Amendment extended the right to counsel to felony cases in each state. The Sixth Amendment extended the right to counsel in all federal cases.
Supreme Court decisions dating back to the early 1900′s have dealt with issues associated to the right to counsel for indigent clients. In Gideon v. Wainwright (1963), the Court ruled all states must provide counsel to poor Defendants who are facing serious criminal charges. The Court decided in the case of Douglas v. California (1963) that counsel must be provided to poor Defendants who file an appeal when an appeal is a state offered right. Indigent clients are afforded the right to counsel during each critical phase of a criminal proceeding, including custodial interrogation, arraignments, hearings, trials, sentencing, and appeals.
If being investigated prior to any formal charges, the right to counsel does not attach. An individual can hire an attorney before charges are filed or ask to speak to any attorney prior to any questioning. You should never speak to a Police Officer without an attorney present, even if charges have not been formally filed. Always hire counsel to represent you.
If the accused cannot afford an attorney and the punishment for the offense carries the possibility of jail time, a Judge will appoint counsel. The accused is not entitled to appointed counsel of his or her choosing. Rather, counsel will be appointed through the Public Defender Office. A meeting will be set up to determine whether an individual is in fact indigent or unable to afford to pay for an attorney. Depending on the situation, a fee plan may be initiated to recoup some of the attorney fees.
Individuals have the opportunity to waive the right to counsel and speak on their own behalf in Court. This is not a wise decision. Due to the complexities of the criminal justice system, it is likely a pro se (unrepresented) defendant will miss filing deadlines; be unaware of criminal procedure rules; be unaware of rules of evidence; unaware of case law; and ultimately only hurt the case. A waiver of the right to counsel must be performed by a competent individual who knowingly and voluntarily makes an intelligent waiver. The waiver cannot be coerced or forced.
