The Right to Counsel: A Necessity, Not a Luxury
Note: This lesson could be conducted by an attorney or judge, or the resource person could be invited into the class to take part in the extension activities suggested at the conclusion of the lesson.
The right to counsel is one of our most important rights. It lies at the heart of the adversary system. As with other salient legal concepts, its meaning has evolved over time. Originally, the right to counsel was narrowly interpreted to mean that those who could afford an attorney should not be denied the right to hire one. In addition, access to counsel at various stages of the criminal justice process was severely limited. The right to counsel was permitted at trial, but not proceedings before or after it.
During the twentieth century, the right to counsel underwent significant change. No longer is the right restricted only to those who can afford it. No longer is it limited to adults. And, no longer is the right to counsel restricted to trial. Landmark Supreme Court decisions have significantly expanded our understanding of this basic right and assured its reality to all citizens, regardless of socioeconomic status. Some of those decisions have become veritable household words-- Gideon, Gault, Miranda.
This lesson enables students to explore several dimensions of the meaning of the right to counsel. It begins with a questionnaire permitting students to express their views regarding matters related to this basic right. Students then explore what the right to counsel means and develop a list of reasons why the right to counsel is so important. Next, students consider the meaning of "access to counsel," including the Miranda decision. They conclude with an examination of the role of the criminal attorney. Follow-up and enrichment activities are also provided.
Using a classroom set of a newspaper…
1. Begin the lesson by making reference to a current, preferably widely known, situation involving an attorney representing a client (e.g., a recent court decision, a trial, an arrest). (An alternative is to show a few previously-recorded legal services advertisements that have appeared on television.) Elicit reactions to that situation and attorneys in general. Then distribute and have students complete the exercise, "What's Your Opinion?"
2. When students complete the exercise, use a show of hands to tally responses. Record results on a transparency or the chalkboard. Select a few items for discussion. Have students share reasons for their choices. (Note: Save responses for use later in the lesson.)
3. Point out that the Bill of Rights guarantees the accused the right to an attorney. Then have students find this guarantee in the Bill of Rights.
4. Divide students in small groups. Distribute a copy of Student Handout 1 to each group and ask each to list on it reasons why the right of counsel is important. When the groups complete their task, have them share their reasons. Record responses on the chalkboard. Discuss the reasons given.
5. Point out how court decisions have increased access to the right to counsel for all persons accused of committing criminal offenses (e.g., Gideon v. Wainwright (1963)--counsel must be provided to indigents charged with felonies; Argersinger v. Hamlin (1972)--counsel must be provided to indigents charged with misdemeanors; In Re Gault (1967)--counsel must be provided to juveniles charged with delinquency). Discuss the importance of the access issue.
6. Shift attention to the Miranda decision, emphasizing the role of the U.S. Supreme Court in interpreting the Constitution. Distribute Student Handout 2. Call attention to the guidelines the Supreme Court specified for police and other government officials. Mention some of the concerns that have been voiced about the wisdom of these guidelines. Refer students to the excerpt from Escobedo and elicit their reactions to it and the Miranda decision.
7. Focus on the role of the criminal attorney. Let students share what they know about criminal attorneys, including those with whom they are familiar (e.g., Johnnie Cochran). List responses on the chalkboard. Then display the following quotation and elicit reactions to it.
8. If time permits, conclude the lesson by revisiting the exercise used at the beginning of the class session. Elicit reactions to the items, especially those about which students may have changed their opinion.
The Role of the Criminal Attorney
Criminal lawyers, it is said, police the police. Also, we police the courts. Every time we try a person, we are trying--and defending--more than the accused. We're defending you, that lady down the street, and the Bill of Rights. But nonetheless, criminal lawyers are controversial figures. We try to get justice for the ones you or the newspapers have labeled bad. But we can sleep nights, because we're the ones who hold the state to the ground rules you and our legislators have established. We're the ones who see to it that society doesn't convict a person who shouldn't be convicted.
(William Foster Hopkins, Murder Is My Business)
9. Extend this lesson with one or more of the following activities:
a. Courthouse trip: Arrange for the students to go to the local courthouse to observe arraignments. This is the time when the presiding officer will inquire as to the status of legal representation and assign legal counsel as needed. Provide the opportunity for students to meet with a judge and one or more of the attorneys. Explore the role and importance of the right to counsel.
b. Attorney in the classroom: Invite an attorney who represents criminal defendants to your classroom to discuss the role of the criminal attorney. As a variant, also invite a prosecutor to visit at the same time. Have them use a modified pro/con format to emphasize key points and different perspectives.
c. Subsequent topics: Develop one or more additional lessons to expand consideration of the right to counsel. Suggested topics include an examination of the stages at which counsel is required (e.g., upon arrest, at lineups, for appeals), the right to defend oneself, the right to competent counsel, the nature of the attorney-client relationship and the representation of the unpopular or despicable client.
This lesson was written by David T. Naylor, Professor of Education in the Department of Curriculum and Instruction and Director of the Center for Law-Related Education at the University of Cincinnati. This lesson is used here with his permission. It originally appeared in the ABA publication, A Teacher's Guide to the Bill of Rights in Action Poster Series.
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