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Why Do the Poor Get a Free Attorney? The Legal Aspects of the 6th Amendment

March 11, 2006

The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.[1]  The right for an indigent defendant to be appointed counsel is a fundamental right, essential to a fair trial.[2]  In Gideon v. Waiwright,[3] the Supreme Court held that this right was so fundamental that it was made obligatory upon the States by the Fourteenth Amendment.[4]
In Griffin v. Illinois,[5] the Supreme Court first addressed an indigent defendant’s request for services other than counsel. Griffin, an indigent defendant, asked the state to supply him with a free trial transcript necessary for his appeal.[6] The court held that the State’s refusal to supply the transcript was violative of the Equal Protection and Due Process Clause.[7]   Both of these constitutional provisions, the Court said, “Emphasize the central aim of our entire judicial system – [that] all people charged with crime must, so far as the law is concerned, stand equally before the bar of justice in every American court.”[8] This idea became known as the equality principle.[9]

[5][6][7][8][9]Following Griffin, the question arose as to how broad ‘assistance of counsel’ was to be interpreted.  Almost thirty years later, the Supreme Court resolved this debate. In Ake v. Oklahoma,[10] the indigent defendant’s only defense to homicide was insanity.[11] The defendant was found guilty after the trial judge denied the defendant’s motion for appointment of an expert psychiatrist to assist with the insanity defense.[12]  The Supreme Court reversed, finding that the trial court should have supplied the defendant with a psychiatrist at the State’s expense.[13]  The court held that the Due Process Clause alone determined what services, other than counsel, the state must supply to indigent defendants.[14] Under Due Process, an indigent defendant was no longer entitled to equality, but to the basic tools of an adequate defense.

In defining the ‘basic tools’ of an adequate defense, the Court began by recognizing the importance of defense experts in the criminal justice system.  Experts, like psychiatrists, can play critical roles in the defense of criminal cases.[15]  For instance, a psychiatrist would not only examine the defendant to ascertain his sanity at the time of the offense, but would also assist the defense by evaluating the strength of the insanity defense, presenting the defense to the jury, and by helping to evaluate and cross-examine government experts.[16]

To determine whether something is a “basic tool,” the Court resorted to the familiar three-factor Due Process balancing test of Mathews v. Eldridge.[17] Under the Mathews test, a court balances three factors:

The first is the private interest that will be affected by the action of the State; second is the governmental interest that will be affected if the safeguard is to be provided; the third is the probable value of the addition or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.[18]

[1] Gideon, 372 U.S. at 340.

[2] Id. at 340.

[3] Id. at 335.

[4] Id. at 340. Since then, the Court has held that an indigent defendant may not be required to pay a fee before filing a notice of appeal of his conviction, Burns v. Ohio, 360 U.S. 252 (1959), that an indigent defendant is entitled to the assistance of counsel at trial, Gideon v. Wainwright, 372 U.S. 335 (1963), and on his first direct appeal as of right, Douglas v. California, 372 U.S. 353 (1963), and that such assistance must be effective. See Evitts v. Lucey, 469 U.S. 387 (1985); Strickland v. Washington, 466 U.S. 668 (1984); McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970).

[5] Griffin, 351 U.S. at 12.

[6] Id. at 13.

[7] Id. at 18.

[8] Id. at 17. (quoting Chambers v. Florida, 309 U.S. 227, 241 (1940)).

[9] The core concept in Griffin is still known as the equality principle. See Ronald J. Allen & Richard B. Kuhns, Constitutional Criminal Procedure 151 (1985); Yale Kamisar et al., Modern Criminal Procedure 73 (7th ed. 1989). As appealing as the equality principle seemed on the surface, it engendered criticism. The equality principle, Justice Harlan argued in dissent, was without any logical limit. It committed the state not only to avoiding the creation of inequality, but to remedying inequalities not of its own making. Further, the principle implied a kind of economic leveling thought to be inconsistent with prevailing American political and economic philosophy. The only reasonable governing principle, Harlan said, was due process.  David A. Harris, Criminal Law: The Consititution and Truth Seeking: A New Theory on Expert Services for Indigent Defendants, 83 J. Crim. L. & Criminology 469, 475 (1992).

[10] 470 U.S. 68 (1985).

[11] Ake, 470 U.S. at 72.

[12] Id. at 72.

[13] Id. at 74.

[14] Id. at 76-7.

[15] Id. at 81.

[16] Id. at 81-83.

[17] 424 U.S. 319 (1976).

[18] Matthews, 424 U.S. at 334.

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