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The Sixth Amendment And The Right To Counsel In Florida

by | Jan 20, 2023 | Criminal Law

The Sixth Amendment to the Constitution guarantees that those charged with a crime in the jurisdiction of the United States will have the option to be represented by counsel even if they cannot afford to hire an attorney. But what does that really mean in Florida? Let’s look at the rights related to criminal prosecution in Florida and what you need to know if you should ever find yourself in such a prosecution.


The Sixth Amendment to the Constitution was ratified with the rest of the Bill of Rights in 1791. The text of the amendment is as follows:


“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”


The Sixth Amendment guarantees several rights in the context of a criminal prosecution:


  • Right to a speedy trial,
  • right to a public trial,
  • right to an impartial jury,
  • right to be tried in the jurisdiction where the alleged crime took place (vicinage),
  • right to be informed of the charges against you,
  • right to confront the individual(s) making the accusation,
  • right to compel defense witnesses to testify, and
  • right to assistance of counsel.


Among these several rights, the right to counsel may be one of the most important. But it is not just one right, it is several:


  • Right to the counsel of the defendant’s choice,
  • right to appointed counsel,
  • right to conflict-free counsel,
  • right to effective assistance of counsel, and
  • right to represent oneself without counsel.


Federal courts have determined that these rights attach at the time formal proceedings against the defendant have begun. However, grand jury proceedings have been found by the courts to be the sole exception to this rule, as the Supreme Court has found that a grand jury investigation is not a criminal proceeding.


The Sixth Amendment guarantees that a defendant may have the counsel he chooses represent him through the proceedings, subject to certain considerations. Conflict of interest, scheduling, admission to the bar in the jurisdiction, and the counsel’s willingness to take on the client are all situations in when a defendant may not be entitled to the counsel of choice.


Under the Sixth Amendment, defendants also have the right to be represented by counsel that does not have a conflict of interest in the representation. Some conflicts can be waived by the defendant, while others cannot.


Although the Sixth Amendment has guaranteed a right to counsel since its adoption, the right was not incorporated to the states, where the vast majority of criminal trials occur, until Gideon v. Wainwright in 1963. However, this right is only recognized in felony trials and is therefore not applicable to misdemeanor prosecutions.


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