How Precedent Develops and
Changes
Example: 6th Amendment
• Rights of accused including right “to have
the Assistance of Counsel for his defense”
– Government guarantee in federal, not state
courts
– Did not require that government provide
attorneys to indigent defendants (needy)
Precedent #1
• Powell v. Alabama (1932) this is a precedent
– SC ordered state to provide an attorney for indigent
defendants
– Set precedent, but only applied to those accused of
a capital crime
• Johnson v. Zerbst (1938) extension
– Requires counsel for indigents in all federal cases
– Extended, but not applicable to states
• Betts v. Brady (1942) chips away
– Counsel provided only in “special circumstances”:
not necessary to provide counsel for defendants in
every criminal case
– Chipped away at precedent
Precedent #2
• Gideon v. Wainwright (1963) sets a new precedent
– Overturned Betts: right to counsel for defendants in
ALL felony cases
– Brought about change in courts, too, as it extended
the guarantees of the Bill of Rights to state courts
• Douglas v. California (1963) extension
– Extended Gideon: required counsel for indigents
appealing conviction, also
• Argersinger v. Hamlin (1972) extension
– Extended right to counsel whenever imprisonment
could be imposed (example: may be a
misdemeanor, not a felony)
Continued
• Ross v. Moffitt (1974) chips away
– Chipped away at precedent: right to counsel
only on first appeal to state or US Supreme
Court
• Scott v. Illinois (1979) chips away
– Chipped away: counsel required only if
imprisonment sentence is sought
• Rehnquist Court has discouraged
indigents from filing what it considers
“frivolous appeals”
• What does the Roberts Court say?