The Warren Court (1953–69)

Criminal Procedure and Constitutional Rights

How did the Warren Court expand the right to counsel in criminal cases?

The Warren Court expanded the right to counsel by ruling that criminal defendants charged with felonies in state courts do have a fundamental right to an attorney even if they cannot afford an attorney. The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” In Johnson v. Zerbst (1938), the U.S. Supreme Court ruled that indigent criminal defendants charged with crimes in federal court have the right to counsel. However, the Sixth Amendment applied only to the federal government, meaning that only those charged with federal crimes were entitled to legal representation. The legal question was whether the Sixth Amendment right to counsel should be extended to the states through the Fourteenth Amendment’s Due Process Clause, which provides that states shall not deprive individuals of “life, liberty or property without due process of law.” In 1942, the U.S. Supreme Court answered no in Betts v. Brady, writing that the “appointment of counsel is not a fundamental right, essential to a fair trial.” This meant that criminal defendants not charged with capital (death penalty) crimes did not have a constitutional right to the appointment of counsel. The Warren Court changed all this in its 1963 decision Gideon v. Wainwright.


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