How Far Does My Right to an Attorney Extend?
Thanks to the prevalence of crime-related T.V. shows, most of us know we have a right to an attorney. Many people think that right is an absolute right, so it may come as a surprise to find you do not have a right to an attorney in every situation, or until you invoke your right in a certain way. Having an experienced attorney by your side can be the difference between jail time and a having no charges filed against you, so it is important you understand when you have a right to an attorney.
Your Constitutional Rights.
Your right to an attorney stems from the Fifth and Sixth Amendments to the Constitution. The Fifth Amendment gives you the right against incriminating yourself in a government investigation of you, while your Sixth Amendment guarantees you certain trial-related rights. Your right to an attorney is different under each amendment and attaches at different times.
Right to Counsel Under the Fifth Amendment.
Most people are familiar with the Miranda warnings, which include the right to remain silent and the right to an attorney. Your Miranda rights don’t automatically apply just because the police are questioning you, however. In order for your Miranda rights to apply, you must be both interrogated by police and in the custody of police, which generally means when you are arrested or otherwise are not free to leave the interrogation or questioning.
Just because your Miranda rights apply doesn’t mean you automatically get a lawyer, however. You must affirmatively and clearly invoke your right to an attorney before the police are required to provide you with access to one. An ambiguous statement like, “I think I need an attorney” will not invoke your right to an attorney, you must clearly say, “I would like to speak to an attorney, and I will not answer any questions until I am provided with an attorney.”
Right to Counsel Under the Sixth Amendment.
Your right to an attorney under the Sixth Amendment does not arise until the matter you are involved in has reached what is known as a “critical stage of prosecution.” Generally, your right automatically attaches at the indictment/formal charge stage and ends after either: (1) trial in the event of an acquittal; (2) accepting a plea; or (3) your first/direct appeal in the event of a conviction at trial. Unlike with your Miranda rights, you do not need to affirmatively invoke your Sixth Amendment right to an attorney in order for it to apply.
One important note about your Sixth Amendment right to counsel is that it only applies in cases where there is the potential for incarceration. What will often happen in less serious criminal cases is the State will “certify no jail.” In that situation, even though the charge you are accused of may carry the potential for jail time, the State is affirmatively saying they will not be seeking jail (even if convicted). By certifying no jail the State essentially eliminates your Sixth Amendment right to counsel. Further, once your Sixth Amendment right to an attorney has attached, the police are under an obligation to inform you if an attorney has been trying to reach you.
What Do I Do if I Have Been Arrested?
At Valiente, Carollo and McElligott PLLC, we firmly believe that you are innocent until proven guilty, no matter what you are charged with. Having a skilled attorney by your side can make a big difference in the outcome of your case. If you have been arrested, or are being investigated, it is imperative that you contact a defense attorney immediately, especially before speaking with the police. The attorneys at Valiente, Carollo and McElligott PLLC will defend you to the fullest extent possible. Contact Valiente, Carollo and McElligott PLLC today.
Posted in: Criminal