Extract

This chapter examines the conduct of trial and other proceedings through the prism of the right to counsel, the right of confrontation and the right to compulsory process—all rights guaranteed by the Sixth Amendment—as well as the due process right to testify. Each of these rights is aimed at assuring the defendant’s side of the story is heard, and that the state’s case is subjected to adversarial testing at trial. Some or all of these rights also apply at most other significant proceedings before and after trial. But each is also subject to restrictions aimed at promoting efficiency and avoiding obstacles to convicting the guilty.

While the right to counsel at criminal trials is taken for granted today, it lacks the historical pedigree of the jury trial, the grand jury and the right of confrontation. In seventeenth century England, criminal defendants were allowed counsel only if they could afford one, and only when charged with misdemeanors or treason. Even by the time of the American Revolution—when attorneys, like the jury, were seen as a bulwark against tyranny—the right existed only for those who had enough money to hire counsel.1 It was not until 1932, in Powell v. Alabama,2 that the Supreme Court recognized a constitutional right to counsel for indigent defendants, and even then the right was guaranteed only on a case-by-case basis. While Powell held that the defendants in that case—nine black defendants charged with the rape of two white women...