Appointed Counsel and Jury Trial: The Rights that Undermine the Other Rights

Do the Sixth Amendment rights to appointed counsel and jury trial unconstitutionally conflict with defendants’ other constitutional rights? For indigents charged with felonies, Gideon v. Wainwright guarantees the right to appointed counsel; for misdemeanors, Scott v. Illinois limits the right to indigents receiving the most severe authorized punishment—imprisonment.Duncan v. Illinois limits the right to jury trial to defendants charged with serious offenses. Consequently, the greater the jeopardy faced by defendants, the greater the eligibility for appointed counsel and jury trial. But defendants’ other constitutional rights generally facilitate just the opposite— minimizing jeopardy by reducing charges, lessening the likelihood of guilt, and lowering the likelihood and severity of punishment— thereby reducing eligibility for appointed counsel and jury trial.

Therefore, defendants potentially face the following coercive dilemma: either exercise numerous constitutional rights, but at the cost of relinquishing the rights to appointed counsel and jury trial, or enjoy appointed counsel and jury trial, but at the cost of relinquishing numerous other constitutional rights. This Article argues that Gideon, Scott and Duncan unconstitutionally burden, penalize, chill, and deter defendants’ exercise of ten constitutional rights afforded by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. Additionally, Gideon and Scott-based conflicts may independently violate the Equal Protection and Due Process Clauses: non-indigents retaining counsel enjoy all their rights while indigents enjoy only some. The simple remedy, resolving all of the conflicts, is extending the Sixth Amendment right to appointed counsel to all indigents and the right to jury trial to all defendants.