Your Constitutional Right to an Attorney

By: Ollena Bennett, Esq.

A criminal defendant’s right to an attorney is found in both the Fifth and Sixth Amendments to the U.S. Constitution. So, it is good for everyone to familiarize themselves with their constitutional rights to have an attorney present. Here is a brief explanation of your rights to an attorney.

Fifth Amendment Right to Counsel

The right to counsel within the Fifth Amendment was first recognized in the famous Miranda v. Arizona case where the Court lists the Miranda warnings which states that a defendant is required to be informed that he or she has the right to the presence of an attorney, and if he or she cannot afford an attorney one is to be appointed prior to any questioning if so desired. [1] This gives a criminal defendant the right to have an attorney present before and during a custodial interrogation by any government official. The Court in Miranda recognized the need to establish safeguards to protect individuals while they are being questioned or given the “third-degree” by officers, investigators, or anyone acting as a government agent. The right to ask for an attorney while being questioned assures that any statements made by an individual is of their free will and not by force or coersion. A defendant can only waive this right knowingly and intelligently in agreeing to move forward without an attorney. [2]

It is important to remember that your right to an attorney kicks in as soon as a custodial interrogation begins. “Custody” may have a different meaning based on the particular circumstances in each situation. So, if you are being questioned, ask yourself the following:

1) Am I in a position where I do not feel free to leave when I want?

2) Am I being questioned as if I am a suspect?

3) Am I being questioned by someone who is a government agent?

If the answer is “yes” for all three, you have the right to ask for an attorney before answering any questions or making any statements. As soon as you have openly invoked your right to an attorney, you should not be questioned again until an attorney is present with you.

Sixth Amendment Right to Counsel

The right to counsel within the Sixth Amendment is triggered as soon as formal charges are in place. This gives a criminal defendant the right to have an attorney present during all “critical stages” of their criminal proceedings for the offenses that they have been charged. Criminal proceedings typically begin after a suspect is formally charged by the court. So, this means that a defendant may have an attorney present from the time that formal charges are in place through the end of their trial, or the last proceeding held if the case settles before reaching the trial stage. The U.S. Supreme Court has held that critical stages will include arraignment, post indictment line-ups, post indictment interrogation, plea negotiations, and entering a plea.

So, while the Fifth Amendment right to an attorney can apply before an individual is arrested, the Sixth Amendment right to an attorney is not triggered until after criminal proceedings have begun. [3] An experienced criminal defense attorney can explain your rights in more detail, tailored to your unique situation. If you are being investigated or have already been charged with a crime, contact our office to speak with a criminal defense attorney that will help you determine your rights and possible defenses.

[1] Miranda v. Ariz. , 384 U.S. 436, 474 (1966).

[2] See NOTE: WHEN SILENCE OUGHT TO BE GOLDEN: WHY THE SUPREME COURT SHOULD UPHOLD THE SELECTIVE SILENCE DOCTRINE IN THE WAKE OF SALINAS V. TEXAS, 48 Ga. L. Rev. 623, 628 (2014).

[3] Constitution of the United States ( https://www.senate.gov/civics/constitution_item/constitution.htm )

The post Your Constitutional Right to an Attorney appeared first on Bennett Law and Mediation Services LLC.