You Have the Right to An Attorney

right to counsel

You’ve heard it many times before on television: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney.” These statements are what are collectively known as a “Miranda warnings” or “Miranda rights,” which were established in the case Miranda v. Arizona. The Fifth Amendment of the United States Constitution right to counsel was recognized as part of Miranda, and refers to your right to counsel during a “custodial interrogation.” In addition to the Fifth Amendment, the Sixth Amendment affords you the right to “the assistance of counsel” in your defense in criminal prosecutions. Both the Fifth and Sixth Amendments to the U.S. Constitution involve the right to counsel, and while sometimes overlapping, there are several differences between these rights. Below is a general overview of your right to counsel.

What the Fifth Amendment Guarantees

Relevant here, the Fifth Amendment states, “No person shall be…compelled in any criminal case to be a witness against himself….” The right to have counsel present at a custodial interrogation is necessary to protect the Fifth Amendment privilege against self-incrimination. Under the Fifth Amendment, before being interrogated by a government agent, you must be given Miranda warnings. These warnings include your right to remain silent and to have an attorney present during the interrogation. If you do not waive your Miranda rights, any information gained through an interrogation will be inadmissible in court. Miranda warnings allow a suspect to consult with an attorney before a custodial interrogation, even if the suspect has not been formally arrested. If you invoke your right to have an attorney present, the police must cease any interrogation or questioning until your attorney is present. You must then be given the opportunity to confer with your attorney and to have your attorney present during any subsequent questioning.

What the Sixth Amendment Guarantees

The Sixth Amendment ensures the right to effective assistance of counsel during the critical stages of a criminal prosecution. The right to an attorney under the Sixth Amendment is triggered once criminal proceedings begin. Criminal proceedings are initiated through a formal charge, preliminary hearing, indictment, or an arraignment. The Sixth Amendment right to counsel extends to the interrogation phase of a criminal investigation, the trial itself, sentencing, and at least an initial appeal of any conviction. The right to assistance of counsel includes five distinct rights: the right to counsel of choice, the right to appointed counsel, the right to conflict-free counsel, the effective assistance of counsel, and the right to represent oneself. The Sixth Amendment only applies in criminal cases for criminal defendants. A defendant does not have a Sixth Amendment right to counsel in any civil proceeding, even if a collateral consequence is a criminal conviction. There are, however, certain civil proceedings where parties have a right to appointed counsel, including for juveniles in delinquency proceedings, a prisoner’s involuntary transfer to a mental health facility, and depending on the circumstance, termination of parental rights proceedings.

Invoking Your Right to Counsel

The invocation of Miranda rights has created significant burdens on law enforcement’s ability to conduct effective interrogations; therefore, a custodial suspect’s ability to invoke that right has become more limited. Accordingly, if you are arrested or questioned, the burden is on you to invoke your right to counsel clearly, unambiguously and in a timely manner. While law enforcement is required to notify you that that you have the right to an attorney, they are not required to ask whether you want an attorney. You should not wait to be asked if you want a lawyer, or wait for Miranda warnings before you ask for counsel. If arrested, request counsel immediately.

Being charged with or questioned about a crime is a serious matter. Because of the severity of the consequences, it is important that you know your rights and effectively assert them. Find an experienced criminal defense attorney by quickly posting a short summary of your legal needs on Legal Services Link and let the perfect attorney come to you!

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Posted - 10/04/2017