The 6th Amendment of the U.S. Constitution guarantees the right to an attorney to anyone facing federal criminal charges. The 14th Amendment and some state constitutions also afford this right to anyone facing state felony charges. Those who are indigent and cannot afford an attorney have the right to have one appointed to them for free. Most people, however, do not understand what the right to an attorney means, when this right attaches or who qualifies for a court-appointed lawyer.

The Right to Effective Assistance of Counsel

The 6th Amendment right to counsel is a fundamental right guaranteed by the U.S. Constitution that all criminal defendants are not only entitled to counsel, but the effective assistance of counsel.  The failure of counsel to render effective assistance is oftentimes the subject of 2255 habeas petitions.  “The benchmark of judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984).  Under the Strickland standard, ineffective assistance of counsel is established when the defendant shows that (1) trial counsel's performance was deficient, i.e., failed to meet an objective standard of reasonableness, and (2) the attorney's substandard performance prejudiced the defendant enough to deprive him of due process of law.

Attachment of the Right

Criminal defendants are afforded the right to an attorney throughout every critical stage of a criminal proceeding once the right has “attached.” Under federal rules, the defendant's right attaches once “adversary judicial proceedings” have been initiated against the defendant. This includes when the defendant has been charged with or indicted for a crime and during a preliminary hearing, information and arraignment.

Thus, for the right to attach, the defendant must have been charged with a crime. It does not attach if the individual is merely suspected of committing a crime. It does not attach during the investigative stage prior to the filing of actual, formal charges – even if the individual is the only suspect. An arrest, without formal charges, also does not trigger the right to an attorney. This does not mean, however, that an individual being investigated for a crime cannot hire an attorney on his or her own.

Once the right has attached, the state cannot interfere with the defendant's right to seek counsel and has a duty to ensure the defendant's right is honored. The right is not available in civil or administrative proceedings or during license suspension or revocation hearings.

Appointed Counsel

In order for a criminal defendant to receive a court-appointed lawyer, the defendant cannot merely be unable to afford the representation of an attorney of his or her choosing, but must meet the definition of being “indigent.” The trial court has the authority to determine whether a defendant is indigent. The court will look at the defendant's total financial circumstances, including his or her income, assets, debts and other financial obligations before deciding if the defendant can afford to pay for an attorney. Thus, just because a defendant is unemployed does not guarantee he or she will be appointed counsel.

Defendants receiving court-appointed attorneys do not have the right to have an attorney of their choosing. If the court finds that the defendant is indigent, the court will assign a Federal Public Defender to the defendant. In cases involving multiple defendants or a conflict of interest for the Federal Defender's Office, a private attorney will be appointed under the Criminal Justice Act (CJA).  The right to appointed counsel only extends to the trial and the first appeal of the trial court's judgment.

Waiving the Right to an Attorney

Just as all criminal defendants have the right to an attorney, they also have the right to self-representation and can waive the right to an attorney. In order to waive this important right, criminal defendants must be able to prove to the judge that they are competent (have the mental capacity) to waive this right and that their waiver is knowing, intelligent and voluntary. The judge must make sure that the criminal defendant understands the disadvantages of self-representation before allowing the waiver.

Defendants considering representing themselves in a criminal trial should carefully consider the consequences of this action. Criminal defense attorneys have years of training and understand the intricate, and often confusing, workings of the law and criminal justice system. Given the complexities of criminal procedure and, more importantly, the severe consequences a criminal conviction carries, a criminal defense attorney is best suited to protect defendants' legal rights and help them achieve the best possible outcome.