Types of Charges that Require Counsel

Consider the two significant cases of Powell v. Alabama and Betts v. Brady. These cases begin to outline when defense counsel is required to be provided to the defendant.

In Powell, 287 U.S. 45 (1932), nine black youth were convicted of raping two white women and sentenced to death. Their trial was anything but fair. Counsel was technically appointed, but there was no official lead counsel until the day before the trial (which lasted only a day). On visiting the Supreme Court, having a lead counsel was required considering the nature of the crime and sentence the defendants were facing.

In Betts, 316 U.S. 455 (1942), the Court determined that special circumstances did not consider the financial state of the defendant, but instead considered the nature of the crime. Counsel was only required to be appointed if the defendant was charged for rape or murder. This holding was altered in Gideon v. Wainwright discussed below.

Additionally, in Johnson v. Zerbst, U.S. (1938), the right to counsel was constitutionally mandated in federal court.

Gideon v. Wainwright

372 U.S. 335 (1963).


Whether Betts should be overturned and a right to counsel appointed to those without the financial means to afford one.


A right to counsel is a fundamental right protected by the Sixth Amendment and incorporated against the states by the Fourteenth Amendment. As such, counsel is to be provided to those who cannot afford one, regardless of the charged crime.


Counsel was denied, reversed.


Gideon was charged with breaking and entering a pool room with the purpose to commit a misdemeanor. The crime is a felony. At trial, Gideon requested counsel to be provided due to lack of funds but was denied because this was not a special circumstance of rape or murder. So at trial, he provided opening statements, called witnesses, crossed the state’s witnesses, did not testify on his behalf, and made closing remarks. Despite his efforts, he was convicted of the crime.


In Betts, the Court determined that the right to counsel was not a fundamental right. However, here, the Court disagrees and overturns Betts. Because the right to counsel is a fundamental right, the failure to deny Gideon that right after he showed the need was unconstitutional. A lawyer is so critical because it is necessary for a fair trial (that way a poor person has the same advantage as the state).

Although the Harlan concurrence agrees the lawyer is necessary, there was no need to overturn Betts. Instead, the definition of “special circumstances” should be redefined based on how substantial the prison sentence is. Here, the prison sentence was five years qualifying as a special circumstance.

In Re Advisory Opinion to the Governor

666 A.2d 813 (R.I. 1995).

The governor of Rhode Island asked the court whether a right to counsel was required when the defendant was charged with a crime that does may not result in incarceration. In response, no. Essentially, the right to counsel extends to all criminal cases, felony or misdemeanor, but is not extended to crimes that does not result in incarceration. This is because incarceration is a removal of fundamental rights. For instance, there is no right to counsel for taking a breathalyzer test, which may result in losing a driver’s license; although a driver’s license is important, there is no fundamental right to drive.

However, the dissent argues the federal rule adopted here is impractical. For instance, the rule requires the right to counsel at the beginning of the litigation, so the court is required to guess whether jail time is going to occur at the end of trial.

Alabama v. Shelton

535 U.S. 654 (2002).


Whether counsel is required to be appointed to defendants where they have a suspended sentence.

  1. Counsel must be provided in the event the defendant is to face “actual incarceration.”
    • Counsel must be appointed (in the absence of a waiver) to defendants if they have been given a suspended sentence.

Counsel was not originally appointed, reversed and remanded.


Shelton was charged and convicted of third-degree assault after unsuccessfully representing himself. After appealing and losing again (even after being warned of the issues with self-representation), Shelton was provided a sentence of 30 days of jail. Immediately after, this sentence was suspended and conditioned on serving two years unsupervised probation and paying certain fees.

Shelton challenges this sentence on the basis that he had not had counsel appointed for his trial.


In the event of a breach of the probationary conditions, the defendant will be subject to incarceration based on the actual crime, not based on the breach of probation. So, if he is imprisoned for the crime without having provided a waiver of counsel, this is a blatant violation of court decisions in Argersinger v. Hamlin and Scott v. Illinois.

The dissent however argues that everything is hypothetical until the defendant has actually breached the probationary conditions, something that may never happen. So, this is an expensive and impractical burden on the state for quite minor crimes. See Scott.

Husske v. Commonwealth

476 S.E.2d 920 (Va. 1996).

Proceedings Requiring Counsel

Rothgery v. Gillespie County, Texas

554 U.S. 191 (2008).


Whether a public prosecutor (not police officer) needs to be aware of the initial proceedings against a defendant for the right to counsel to attach. In other words, is this an issue where the prosecutor has to state a commitment to prosecute?


Prosecution commences when the machinery of prosecution begins. This includes a formal charge, preliminary hearing, indictment, information, or arraignment.

After proceedings have begun, the attorney is only required at the critical stage of the proceedings. These include: (1) post-indictment lineup, (2) post-indictment questioning, (3) preliminary hearings, (4) sentencing. However, critical stage does not include: (1) taking of DNA samples, (2) a photo array, (3) post-arrest probable cause hearings, (3) first appeal after the trial, (3) probation revocation hearings.


Proceedings had commenced.


Rothgery was arrested of having a firearm. Erroneously believing he had been a felon (a document was improperly recorded), Rothgery was taken to a magistrate for proper charging and probable cause because the officer did not have a warrant. This was called a 15.17 hearing. At the hearing, Rothgery requested counsel, but he waived it when he learned about the delay in posting bail. Later, he requested an attorney several times, but the attorney was not officially provided to the defendant until he had spent several weeks in jail and had been indicted.


The state argued that the prosecution required the prosecutor to make a showing of commitment to begin prosecution. Here, however, the Court disagrees. According to the rule, prosecution begins (attachment) at the 15.17 hearing because he had been accused and bond has been set. In other words, the machinery of prosecution began, so the right to counsel also began there.

People v. Larsen

385 N.E.2d 679 (Ill. 1979).

Larsen was charged with murder and claimed not guilty by reason of insanity. So, the court ordered a psychiatrist to develop an opinion about whether Larsen was insane at the time of the crime. Larsen’s attorney was not informed of the appointment (so, he was not present during the meeting) and the report was used against Larsen at trial.

The question is whether the evaluation is a critical stage of the litigation requiring counsel to be present. Typically, courts determine that this is not a critical stage unless this is a capital case.

Additional Notes

Here is the different sources of a right to counsel

  1. Fifth Amendment right to Silence also includes the right to counsel with the purpose to preserve the right to remain silent
  2. Due Process and Equal Protections for appeal preservers the right to counsel.
  3. A statute can provide a protection of the right to counsel that is greater than the Sixth Amendment right
  4. Finally, a Sixth Amendment right to counsel, but there are three requirements
    1. The charges must be serious enough to qualify for the right;
    2. The prosecution must have commenced
    3. And the litigation must be in a critical stage.

The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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