Where Does the Right to An Attorney Come from?

Over a century ago, the Indiana Supreme Court in Webb v. Baird, 6 Ind. 13 (1853) , formally recognized the right to an attorney for a person accused of a crime.  However, the court did not base its decision on constitutional law.  Rather, it determined this right was grounded in "the principles of a civilized society." 

Since Baird, courts have vastly expanded the right to counsel beyond just appointing an indigent person a lawyer.  Specifically, a person has the right consult with an attorney, indigent or not, even before trial.  A person has a right to the assistance of counsel at any stage of an investigation or custody. 

In Arizona, the right to counsel comes from four sources.  First, the right to counsel was established in the United States Constitution.  The Fifth Amendment of the United States Constitution states: "No person shall...be deprived of of life, liberty, or property without due process of law..."  See also Fourteenth Amendment, U.S. Constitution.  Moreover, the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defense."

Second, the right to counsel is also codified in Arizona's Revised Statutes.  Arizona Revised Statutes section 13-114 states: "In a criminal action [the] defendant is entitled...[t]o have counsel."


The Arizona Rules of Criminal Procedure is the third place that provides for a person's right to counsel.  Rule 6.1(a) of the Arizona Rules of Criminal Procedure states:

A defendant shall be entitled to be represented by counsel in any criminal proceeding, except in those petty violations such as traffic violations where there is no prospect of imprisonment or confinement after a judgment of guilty. The right to be represented shall include the right to consult in private with an attorney, or the attorney's agent, as soon as feasible after a defendant is taken into custody, at reasonable times thereafter, and sufficiently in advance of a proceeding to allow adequate preparation thereof.

Finally, the fourth area of law that guarantees the right to counsel is the Arizona Constitution.  Article II, section 4 states: "No person shall be deprived of life, liberty, or property without due process of law."  Furthermore, Article II, section 24 provides: In criminal prosecutions, the accused shall have the right to appear and defend in person, and by counsel..."

These four sources of law combine to guarantee a person's right to an attorney.  However, the exact moment when a person is entitled to an attorney and the circumstances under which the person is able to contact an attorney depend on the specific facts of the case.

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