oa Comparative and International Law Journal of Southern Africa - The right to counsel at trail for a defendant in the criminal justice system of the United States of America, including the right to effective assistance of counsel

Volume 38, Issue 3
  • ISSN : 0010-4051



The right to counsel developed much later than many of the other fundamental rights, such as the right to a jury trial. But the right to counsel came to be seen as an important bulwark against tyranny. The Declaration of Independence specifically complained of the denial of counsel, and twelve of the original thirteen states guaranteed a right to counsel in their constitutions. The right was included in the Sixth Amendment which dictates that the right attaches at the beginning of the criminal prosecution and guarantees counsel at any criminal trial which results in deprivation of liberty. The constitutional right of an indigent defendant to the assistance of court-appointed counsel was recognised by the Supreme Court in Powell v Alabama, and in Gideon v Wainwright it was decided that all indigent felony defendants have the right to appointed counsel in state and federal prosecutions. The Sixth Amendment would be nullified if it did not ensure some level of quality of counsel. Therefore, the right to counsel has been interpreted to stand for the effective assistance of counsel. The defendant must affirmatively prove that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.

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