How Courts Have Expounded on the Constitutional Right to Counsel

Paul J Velardi
3 min readSep 8, 2021


The right to counsel in criminal cases is a fundamental right guaranteed by the Constitution. The Sixth Amendment states that, in all criminal prosecutions, accused persons have the right to a speedy trial by an impartial jury, and to have the assistance of counsel for their defense. This is the right to counsel that has effectively been upheld in court cases over recent decades.

In criminal cases, people who do not have lawyers face the risk of going to jail since they do not have the legal knowledge or expertise to defend themselves against charges leveled by the state against them. Even fewer understand the procedural technicalities of a trial or have the skills to convince a jury that they are not guilty. The right to counsel was established to give defendants a fair chance at defending themselves and safeguard their freedom.

While upholding its sanctity, courts have, over the years, expounded on the right to counsel. For example, they have even extended the right to counsel to defendants who ordinarily cannot afford one, placing that responsibility on the state. In Gideon v. Wainwright, the Supreme Court held that, in the country’s adversarial system of criminal justice, persons brought to court who were too poor to afford a lawyer could not be assured of a fair trial unless counsel was provided for them. More than five decades after that landmark ruling, U.S. courts have upheld it, requiring the state to provide legal counsel to defendants who risked losing their freedom in various types of criminal cases, including misdemeanors and juvenile delinquency proceedings.

However, not all people are eligible for representation by a public defendant. The courts only consider people who are indigent. The exact criteria for meeting this standard varies by state. However, in general, courts look at a defendant’s financial circumstances to determine their ability to afford a lawyer.

Aside from extending the right to counsel to people with limited financial resources, courts have also held that counsel should be effective. The Supreme Court in Strickland v. Washington established a test to determine whether a court-appointed lawyer was effective in their representation of the client. It ruled that when the lawyer’s performance was deficient, as compared to professional norms, to the extent of affecting the result of the case, with reasonable probability, then representation was ineffective. In such cases, the remedy for this is a new trial.

Further, courts have clarified when the right to counsel attaches. In Brewer v. Williams, the U.S. Supreme Court held that the right to counsel attaches when judicial proceedings are initiated against a defendant. This can be by a formal charge, indictment, preliminary hearing, or arraignment. In Miranda v. Arizona, the court upheld the right to counsel during custodial interrogation. Today, police are required to inform people who are arrested of their rights to remain silent and to an attorney.

Notably, courts have also established limits to this right to counsel. For example, they have held that the right does not automatically attach to people who are under investigation. This is because no formal charges or accusations have been made against them to initiate the adversarial justice system. Further, courts have held that the right does not extend to civil and administrative cases, so the government has no obligation to provide counsel to defendants in such matters.

Finally, though all defendants have the right to counsel, it is possible for a defendant to waive this right and choose to represent themselves. Courts, though, strongly advise against it and only accept it when defendants show they are competent to make such a decision voluntarily, and that they understand the disadvantages of it.



Paul J Velardi

Attorney and Sales Associate Paul J. Velardi