What rights do I have to an attorney in a criminal case? [2009-01-09]
Matthew J. Ruff
Every person enjoys a panoply of rights afforded under the United States Constitution, among the most important is that of the right to counsel. The 6th amendment right to an attorney or legal counselor differs from the Fifth Amendment right to counsel in a number of ways. First, the right attaches when the criminal justice process has reached a critical stage, at the initiation of the prosecution, rather than during a custodial interrogation ( one wherein the suspect is not free to leave). A prosecution is initiated, for example, when (i) formal criminal charges are filed, (ii) a preliminary hearing is held to determine probable cause, (iii) an indictment or information is filed by the local district attorneys office, or (iv) an arraignment is held before a Judge in a Court of Law. So, for example, there is a right to have counsel present during a post arraignment line-up. But, the stage of the proceeding and the nature of the confrontation must in the nature of a trial for the right to be implicated (
e.g., there is no Sixth Amendment right to a criminal defense attorney when police bring in a witness to examine a book of photographs, because the accused is not being confronted).
Moreover, the Sixth Amendment right to counsel is offense specific. Once the right has attached for a specific charge, the suspect cannot be questioned about that charge without his or her counsel present. He or she can, however, be questioned regarding other offenses for which the Sixth Amendment right has not yet attached without violating that provision. Suspects can even be questioned regarding an offense which is related in any way to the same facts or factually related to the offense for which this right has been invoked, as long as the offenses are not the same for Double Jeopardy purposes. On the other hand, the Miranda Fifth Amendment right to counsel ( requiring a specific advisal of right to an attorney before and during the question and answer procedure) is not offense specific. If a defendant accused to have committed a particular crime has invoked his or her Fifth Amendment right to have counsel present during a custodial interrogation, he or she cannot be questioned, regarding any offense, without counsel present. Of course, the criminal suspect may waive his or her Sixth Amendment right to counsel, provided the waiver is knowing, intelligent and voluntary. This right to counsel is safeguarded by the exclusionary rule as well. If a statement is obtained by the police in violation of the individual's Sixth Amendment right, it, and any other evidence that may come to light as a result of the statement, will be suppressed.