Free research paper on right to counsel

Right to counsel

Criminal law refers to a body of rules that deals with crime. It defines the actions that are constitutionally allowed because they jeopardize, harm or harm the safety of the people who commit them. During the criminal case proceedings, a defendant is entitled to the right to counsel or self representation. Meaning, a defendant may either opt to be represented by a legally empowered law expert (attorney) or represent themselves in the court of law (Israel, J. H. et al., 2003).

The history of the right to counsel can be traced to the colonial era. Many historians believe that this practice formally began in the United States of America (USA) in the year 1641 before undergoing the subsequent developments that have seen it gain prominence in the world today. This has been through the institution of many statutes. For instance, in 191, it was extended to the US state courts. In 1808, the right to counsel was made compulsory for criminal cases in France. This came after a successful adoption of the Napoleonic Code of Criminal Instructions that created room for the defendants of criminal cases.

According to the Canadian law system, the right to counsel is guaranteed by the Charter of Rights and Freedom, section 10. It entitles the defendants with an opportunity to enjoy the support of a counsel upon their arrest or detention. However, it does not apply to the criminal cases since it was ruled out by the Supreme Court in 2010. Hence, a person accused of a criminal offence is no longer entitled to a state sponsored counsel in this country.

In USA, this right was further strengthened after the constitutional milestones experienced after the appeal of the famous Sixth Amendment. Moreover, act gives the defendant right to the choice of a conflict free and effective representation. This means that a defendant of a criminal accusation has a freedom of choosing a lawyer that will advocate for them in the court of law. Nobody should compel them to use a counsel whom they are not interested in or they don’t trust. So, when they are charged against a given criminal offence, it is up to them to make their choice as guaranteed by the constitution.

At the same time, this amendment grants the defendant the right to the appointment of the counsel by the state. Hence, it is the responsibility of the government to provide the defendant with a state sponsored attorney particularly if he is too poor to afford to hire his own, is deemed illiterate or incompetent. Under these situations, the defendant is provided with a chance of using a counsel whether they like it or not. This argument holds water since an incompetent defender is not able to adequately representation against criminal accusations labeled against him.

Besides, the Sixth Amendment entitles the defendant with a right to a conflict free counsel. In this regard, the defendant is given a chance to enjoy the support of a counsel that will not bring any controversy to them. At no one time should there be a conflict of interest when dealing with any case. The defendant should have confidence in the selected attorney and believe in him as the best person qualified enough to represent him depending on his competence, past records and his relations with him (Ormerod, D., 2005). As the same time, there should be no legal tussle on the selected attorney regarding the matters of jurisdiction and expertise. If these controversies are resolved in time, the case will be heard without any constrain.

The Sixth Amendment also accords the defendant a right to enjoy an effective representation. As explained, the chosen counsel should be a highly qualified competent fellow whose performance in a given duty should not be doubtable. However, in case of any incompetency where by the counsel’s performance is deemed to have been below the expected standards, the court may grant a relief to the defendant. This may be so because; the presence of the counsel himself might have compelled the defendant to give an answer he might not have given. However, in such a situation, the defendant must prove how the attorney influenced him to plead guilty to the charges. For instance, if an alien accepts the charges and later gets deported, the case may be considered in case the counsel failed to inform him that such a conviction can result into deportation (Hall, J., 1960).

On the other hand, self representation, also called prose refers to a situation whereby a defendant represents himself in the court of law during the proceedings of the case involving the criminal charges labeled against him. However, this mostly happens when he is deemed competent enough to represent himself without any doubt. Besides, he must show that he can defend himself competently since he is not ignorant of the charges or the legal process surrounding him. In the US, prose was recognized by the courts in 1975. However, its use may be limited to the extent that the court may hire a standby counsel who may be appointed to work hand on hand with the judges as they determine the criminal case.

Moreover, it is important to note that this right is only applicable to the initial cases and can not be accepted in the appeal cases. It was scrapped of from the appellate courts in the year 2002. The appellate courts do not grant the appellants involved in any referred case to represent themselves during the proceedings. In other words, the appellants will need to be assisted by attorney whom they can seek for at a fee or offer them a pro bono service (Fletcher, G. P., 1998).

So, the presence of an attorney is very important because it helps to facilitate the smooth running of the case. If there is a good choice of the counsel, the defendant will not dispute the outcomes of the court ruling, but accepts it as a fair penalty or consequence for the criminal offence done. The defendants should enjoy this right from the time of arrest, interrogation by the government or during an indictment. On the other hand, the freedom of self representation will adequately serve its purpose by allowing the defendant to answer to the charges


Fletcher, G. P. (1998). Basic Concepts of Criminal Law. Oxford University Press.

Hall, J. (1960). General Principles of Criminal Law. Lexis Law Pub.
Israel, J. H. et al (2003). Criminal Procedure and the Constitution:

Leading Supreme Court Cases and Introductory Text. St. Paul: MN:

West Publishing.
Ormerod, D. (2005). Smith and Hogan: Criminal Law. Oxford University Press.