The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

Witness and Counsel in Criminal Trials

The Right to Counsel in America

Abandoning England’s Precedent

Fortunately, this particular defect in the common law never seemed to gain a foothold in the American colonies. As early as 1641, the Massachusetts “Body of Liberties” guaranteed: “Every man that findeth himself unfit to plead his owne cause in any Court shall have Libertie to imploy any man against whom the Court doth not except, to help him.” This early version of the right to seek counsel did come with one important proviso, however: “Provided [the defendant] give him noe fee or reward for his paines.” Limiting legal counsel to motives of benevolence on the part of the attorney probably diminished its availability to the accused. But Delaware’s Charter of 1701 went further, declaring: “That all Criminals shall have the same Privileges of Witnesses and Council as their Prosecutors.”

By the time America had declared independence, other states had likewise abandoned England’s “odious” precedent. Delaware’s 1776 Declaration of Rights guaranteed that “in all Prosecutions for criminal Offenses, every Man hath a Right…to be allowed Counsel.” And Vermont’s Constitution of 1777 declared that “in all prosecutions for criminal offences, a man hath a right to be heard, by himself and his counsel.” During the ratification period, Virginia and North Carolina had requested that the Constitution be amended to guarantee to the accused the right to “be allowed counsel in his favor.” Madison’s proposal to the First Congress, however, adopted the wording from New York, that the accused should have “assistance of Council for his defence.”