The right of counsel to a defendant in a criminal case was not always part of the common law. Rather, it is part of a development of the last two hundred years, (Holtzoff, 1944: 1). Today, the right to a counsel and presumption of innocence that results to the burden of the prosecution to prove the defendants guilt beyond any reasonable doubt, are considered indisputable principles of Anglo-American jurisprudence.
The Sixth Amendment is part of the changes that have taken place in modern times, thereby altering the principles of common law that were part of the Revolution of 1688. Before this amendment was put in place, rarely was the defendant confronted by witnesses. Instead, prosecution’s representatives conducted interrogations on witnesses outside the court and prepared ex parte transcripts, which they then presented before court during trial. This way, it was very easy for flimsy evidence to find its way into court and to form the basis for conviction. Defendants could be harangued by even the judges.
Today, the cornerstone of the American criminal justice system is preserving the right of the accused to make a presentation on his best defense. This entails the right to have access to an able counsel. Two hundred years have passed since the enactment of bill of rights and America is still grappling with the question of the scope to which a defendant should have a right to an able counsel.
Prior to mid-nineteenth century, the English tradition that granted the accused the right to counsel ran very contrary to the American principles of justice and fairness (Fulton, 1989:1599). A person answering to a charge that attracted a brief imprisonment or fine upon conviction, such as misdemeanor, was always allowed to engage the services of a counsel. In sharp contrast, a person answering to felony charges, which carried harsher penalties upon conviction, including death, was not allowed to retain a counsel.
The most probable reason for this peculiar situation is that the state did not want to interfere with cases involving misdemeanor, in such cases, the judge acted only as a disinterested referees between two parties. However, felony cases, owing to their significance in a state’s stability, required that the state play an active role in their outcome. One way of ensuring this always happened was denying the defendant the right to counsel. This tradition can be traced back to Elizabethan England where crown power was a key determinant in outcomes of felony cases.
Block, 1985, explains the relationship that exists between the right of self-representation and the sixth amendment. He notes that by not accepting to be represented by a qualified counsel, a person accused of tax fraud would be exercising his rights as enshrined in the sixth amendment’s history and structure and not merely the right to waive the counsel’s assistance.
In the criminal justice system, attorneys play a plea bargaining role (Alschuler, 1975:1175). This is the reason why supreme courts as well as other observers always hold onto the assumption that criminal defense attorneys will always advise their clients to choose the course that will perfectly suit the clients’ best interests.
For the criminal justice system to function well, the right to counsel confers attorneys with the responsibility of professionally engaging in plea-bargaining on behalf of their clients.