The Right to Counsel

The Right to Counsel

The right to legal counsel is a fundamental right of criminal defendants under the U.S. Constitution. Many state constitutions also include this right, and some states provide broader rights to counsel than the federal constitution does. However, state defendants are still entitled to lawyers in certain scenarios, even if their state constitutions do not provide such rights, under the federal constitution via the 14th Amendment.

If you are suspected of, investigated for or accused of a crime, it is important that you retain the services of an experienced criminal defense lawyer to fight for you throughout the criminal-justice process. Contact Rob McKinney, Attorney at Law in Nashville, TN, today to schedule a consultation with a criminal defense attorney to discuss your case.

The Sixth Amendment Explicit Right to Counsel

The Sixth Amendment says that someone accused of a crime has the right to counsel to defend him or her in criminal prosecutions. Court decisions have established that the assistance of counsel must also be effective.

The Sixth Amendment guarantee applies to anyone facing federal criminal charges. The 14th Amendment and some state constitutions also afford this right to anyone facing state felony charges or misdemeanor charges eligible for incarceration.

Broadly, the Sixth Amendment means that at the point when the government takes an officially adversarial position against someone in "judicial proceedings," the defendant may not be questioned or face adversarial proceedings without his or her attorney present, unless the defendant has legally waived that right.

Normally once a crime has been charged the defendant's lawyer must be there for "critical confrontations" and "critical stages," including interrogation, lineup, probable cause hearing, arraignment, plea hearing, felony trial, misdemeanor trial where jail time could be imposed, sentencing, and appeal if by right. The Sixth Amendment right also gives a juvenile defendant has the right to a lawyer at a delinquency hearing.

The right does not attach if the individual is merely suspected of committing a crime. It does not usually attach during the investigative stage prior to the filing of charges — even if the individual is the only suspect. An arrest, without formal charges, also does not trigger the Sixth Amendment right. This does not mean, however, that an individual being investigated for a crime cannot or should not have a lawyer.

Once the right has attached, the state cannot interfere with the defendant's right to seek counsel and must honor the right.

The Fifth Amendment Implied Right to Counsel

The famous U.S. Supreme Court case of Miranda v. Arizona found an implied right to counsel in the Fifth Amendment to protect a defendant's right not to incriminate him or herself during custodial interrogation. In other words, you have a right to an attorney when you are in police custody facing questioning, whether or not an actual crime has been charged. The police must inform you of this right and if you assert it, questioning must stop until your lawyer is present.

Appointed Counsel

Those who are indigent and cannot afford attorneys have the right to have lawyers appointed for their defenses at no cost. Defendants receiving free attorneys do not have the right to lawyers of their choosing. Rather, the court will assign a public defender. Normally the right to appointed counsel only extends to the trial and the first appeal.

Waiver

Just as a criminal defendant has the right to an attorney, he or she also has the right to self-representation. To do so, a defendant must be able to prove to the judge that he or she is competent (has the mental capacity) to waive the right to counsel knowingly, intelligently and voluntarily.

Defendants should carefully consider the consequences of representing themselves. Given the complexities of criminal procedure and the severe consequences convictions carry, criminal defense attorneys are well suited to protect defendants' legal rights and help them achieve positive outcomes.

Contact a Criminal Defense Lawyer

It is important to begin working with an attorney as soon as possible in the criminal process, even if you have not been formally charged with a crime. To learn more about your legal rights, contact Rob McKinney, Attorney at Law in Nashville, TN, today to schedule a consultation with a criminal defense attorney.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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