Is there really a right to legal counsel?

Political Philosophy
1

We all agree that rights cannot conflict. One man’s right can only impose the duty to not interfere upon other men - but no other duties.

This got me thinking about the Sixth Amendment (or whatever your country’s equivalent is), in which there is a positive right to an attorney. Is the practice of providing an attorney for defendants who cannot afford one a misinterpretation of the Sixth Amendment? Does it actually mean that you have a right to have an attorney represent you during police questioning and in trial if you can afford one?

I can see why it is in the public’s all other individuals’ best interest to provide an attorney, because if we don’t give the accused a chance to defend himself, his right to due process is violated. We have to provide counsel for the defendant, otherwise we’d just have to let him walk.

Which opens another can of worms: At which point does the right to appointed counsel “kick in”? From what I read on the internet, most middle-class people can easily be financially ruined by their legal fees in a criminal trial, yet someone who owns an SUV and a house in the suburbs probably doesn’t qualify as “unable to afford a lawyer” - not that anyone in his right mind would want an appointed lawyer, according to what I’ve seen on TV.

I’d appreciate any feedback.

2

Would a public defender be necessary in a free society?

Also, how might the institutions of a free society pay for a defense lawyer? Today, if the prosecution fails to convict, the defendant generally does not get his fees paid by the prosecution, and if he is convicted he has no way of paying his debts, and no means for a lawyer to enforce the debt.

3

Is the practice of providing an attorney for defendants who cannot afford one a misinterpretation of the Sixth Amendment? Does it actually mean that you have a right to have an attorney represent you during police questioning and in trial if you can afford one?

I wouldn’t call it a misinterpretation, but the Sixth doesn’t explicitly state that citizens have the legal right to a attorney on the public’s dime.

I can see why it is in the public’s all other individuals’ best interest to provide an attorney

I don’t :worry:

4

I wouldn’t call it a misinterpretation, but the Sixth doesn’t explicitly state that citizens have the legal right to a attorney on the public’s dime.

I don’t :worry:

The thing is, the Law is a complex matter. It takes years of study to gain the knowledge necessary to pass the bar.

Government has a proper role in dealing with Criminal investigations and with judging guilt in criminal matters. In cases where Government has the job of prosecuting an individual for a crime, the deck would be heavily stacked in the prosecutor’s favor if an attorney did not represent the defendant.

Since in a truly objectivist society, Government money would be given by contribution, I think it would be proper for Government to also provide a defense attorney to a defendant, *if* the defendant could not afford to hire a better one.

It is certainly in *my* best interest to contribute to the operation of a Government for that kind of insurance of protection of my own individual liberty.

5

Is the practice of providing an attorney for defendants who cannot afford one a misinterpretation of the Sixth Amendment? Does it actually mean that you have a right to have an attorney represent you during police questioning and in trial if you can afford one?

You can see from the 6th what it states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his defense

.

This does not say that one has the right to be provided an attorney. It simply states that the state cannot prohibit legal counsel. No right is a right to be provided with anything. In my opinion, this new “right” stems from cases like Johnson v. Zerbst (precedent for Gideon v. Wainright), which traces the reasoning back to a statement in a Wisconsin decision (Hack v. State, 141 Wis. 346) stating:

Thanks to the humane policy of the modern criminal law, we have changed all these conditions. The man now charged with crime is furnished the most complete opportunity for making his defense. He may testify in his own behalf; if he be poor, he may have counsel furnished him by the state, and may have his witnesses summoned and paid for by the state;

None of the rationalizations of the right to free counsel are actually grounded in the 6th Amendment. Rather, they are grounded in a (correct) judgment that it would be unfair to subject an untrained individual to the awesome legal power of the prosecutor – which above all includes the power to obfuscate. Remember that the prosecutor is supposed to prove the accused guilty, and that the judge cannot favor the defendant (cannot, for example, advise a pro se defendant that the prosecutor advanced an improper argument which must be objected to).

Some measure of protection is afforded defendants by the fact that the prosecutor is more limited in what he can do. A prosecutor cannot knowingly go after an innocent man, but a defense attorney can and must knowingly defend a guilty man.

6

Justice doesn’t necessarily mean the process we have right now (with the prosecution and defense often resorting to methods which are less than straight forward to convince a jury of laymen), but one thing it certainly isn’t: a prosecutor spinning technicalities to the same jury, with the defendant completely impotent to defend himelf.

It is the government’s duty to ensure justice is being done, but that (I would assume) might, possibly, be done without involving a public defender with exactly the same role he has today. Since the system is quite faulty today (one of reasons is often a poor performance by public defenders), some changes in this area would probably be welcome.

7

It is the government’s duty to ensure justice is being done, but that (I would assume) might, possibly, be done without involving a public defender with exactly the same role he has today. Since the system is quite faulty today (one of reasons is often a poor performance by public defenders), some changes in this area would probably be welcome.

What, concretely? For example, “increase the funding to the PD’s office”? I don’t see how the role of the PD is at all a problem.

8

What, concretely? For example, “increase the funding to the PD’s office”? I don’t see how the role of the PD is at all a problem.

I was thinking more along the lines of limiting the role of both the prosecutor and the defense-attorney’s reach, during the trial., perhaps by preventing them from appealing to the emotions of the jury, instead of their rational faculty. But I don’t have a concrete proposal as to how, because I don’t even understand the rules that bound them now.

9

I was thinking more along the lines of limiting the role of both the prosecutor and the defense-attorney’s reach, during the trial., perhaps by preventing them from appealing to the emotions of the jury, instead of their rational faculty. But I don’t have a concrete proposal as to how, because I don’t even understand the rules that bound them now.

That basically comes at the stage of opening and closing arguments. During the trial, an attorney presents evidence but not argumentation. If an attorney were to start pontificating emotionally, opposing counsel can rightly object and get the rant removed from the record. Of course once the bell has been rung, you can’t un-ring it, but there would be sanctions against an attorney who persistently overstepped the bounds of proper questioning. Questions can carry implications, so an attorney might ask “Would you consider this attack to be exceptionally brutal and cruel” – a competent question if asked of a veteran police officer. I am not sure what can, in principle, be done about closing arguments.

10

That basically comes at the stage of opening and closing arguments. During the trial, an attorney presents evidence but not argumentation. If an attorney were to start pontificating emotionally, opposing counsel can rightly object and get the rant removed from the record. Of course once the bell has been rung, you can’t un-ring it, but there would be sanctions against an attorney who persistently overstepped the bounds of proper questioning. Questions can carry implications, so an attorney might ask “Would you consider this attack to be exceptionally brutal and cruel” – a competent question if asked of a veteran police officer. I am not sure what can, in principle, be done about closing arguments.

Can such bell ringing backfire? An attorney who gets sanctioned - even if only with a warning - could end up making a bad impression on the jury, couldn’t he?

11

Can such bell ringing backfire? An attorney who gets sanctioned - even if only with a warning - could end up making a bad impression on the jury, couldn’t he?

That’s why when you play attorney, you pick and choose which questions you are going to ask, not just the ones you want to ask. Sometimes you could ask a question where you know the witness is likely to respond in a completely emotional way, or you could ask a question that you know will never even get an answer because the opposing council will immediately object to it.

Sure, if that happens a lot, it makes the witness seem like a blabbering fool or the attorney seem incompetent. But if done only at certain times, and for the right questions, it can be an effective method.