Robert Christian Billar Criminal Law Blog on Lawyers.com

Understanding your right to counsel

Thursday, May 20, 2010 by Robert Christian Billar

Your right to counsel is provided under the Constitution and supported by case rulings.

Miranda warning

In 1996, the United States Supreme court rendered a decision in the case of Miranda v. Arizona that protected the Constitutional rights of an individual suspected of criminal activity. In most situations, the police must advise suspects of the right to remain silent and their right to counsel, both rights granted by the Fifth1 and Six Amendments2. The Miranda warning must be given at the time of arrest unless sufficient evidence already exists to move to indict the defendant without interrogation. Also the Miranda warning may not be given if the defendant freely volunteers information or admits guilt before being taken into custody.

When does your right to counsel attach?

Until a formal charge, preliminary hearing, indictment, or arraignment occurs, your Sixth Amendment right to counsel does not attach. Arrest does not necessarily attach the right to counsel.

After the right to counsel attaches, authorities may not elicit statements from you about yourself and the criminal action without an attorney present (based on Massiah v. United States Supreme Court ruling). If the prosecution does elicit statements, violating your rights, the evidence must be suppressed.

Why do you have the right to counsel?

The Sixth Amendment right to counsel in all criminal prosecutions was included in the Bill of Rights to protect you so you receive a fair trial. The justice system is an adversarial process regulated by complicated rules and laws. You have a right to competent counsel to advocate for you against the prosecution.

What happens if you waive your right to counsel?

Even when you waive your right to counsel, your lawyer may be able to challenge admission of evidence based on the fact that you did not understand what waiving your right to counsel meant or the possible consequences of doing so.

(1) Fifth amendment nor shall be compelled in any criminal case to be a witness against himself"
(2) Sixth amendment (right) to have the assistance of counsel for his defense.

Billar & Donald, P.C. - Phoenix criminal law firm
2700 North Central Avenue
Suite 320 Phoenix, AZ 85004

Posted at 13:16 PM

Topic: Criminal Law