When You Have The Right To Counsel

When a Person has the Right to Counsel

While many people are familiar with the line from Miranda Warnings that a person has “the right to an attorney,” a large number of individuals have questions about when exactly the right to an attorney arises. Because the legal system is particularly complicated, it is important for individuals to have an understanding about when to assert their right to counsel.

What the United States Constitution Says

Under the Fifth Amendment to the United States Constitution, criminal defendants have the right to an attorney. This right arises out of a person’s Fifth Amendment privilege against self-incrimination. There are two factors to analyze when determining whether a person has the right to an attorney – if the defendant is in custody and if the defendant is being interrogated.

In addition to the Fifth Amendment, a person’s Sixth Amendment rights state that a person has a right to counsel after having been formally charged with a crime. It can be difficult to determine when a formal criminal proceeding is occurring, and as a result, there are several situations in which this type of proceeding is found to commence.

When the Right to Counsel Exists

Some of the situations in which a person is found by courts to have a right to an attorney include arraignments, hearings, interrogations, line-ups, physical examinations, and questioning. There are, however, some situations in which the right to counsel is often found not to exist, including when a witness views photos of the alleged perpetrator, investigative lineups, taking of fingerprints or handwriting samples, hearings to determine probable cause to detain a defendant, discretionary appeals, and post-conviction proceedings including parole or probation hearings.

When Law Enforcement Violates the Right to Counsel

There are some significant consequences that can result if law enforcement continues to question a person even after an attorney has been requested. In many cases, where this violation occurs, a court of law will exclude any evidence obtained due to the violation. This exclusion can relate to either statements provided by a person or to evidence that is found as the result of statements that are provided by a person.

Waiving the Right to Counsel

A person can waive their Fifth and Sixth Amendment right to counsel, which allows law enforcement to continue questioning individuals without the presence of an attorney. These waivers must be made in a knowing and voluntarily manner. Law enforcement is prohibited from obtaining a waiver of legal counsel of a person if that individual does not understand the effect that not having an attorney present will have. Law enforcement is also prohibited from using threats against a person to make him or her waive those rights.

How a Seasoned Criminal Defense Lawyer Can Help

If you are the subject of a criminal investigation, there are several important pieces of advice to follow. One of the most important pieces of advice is to quickly retain the assistance of an experienced attorney who can make sure that your case resolves in the best possible manner. Contact an attorney at The Federal Criminal Law Center today to obtain the assistance that you need.