Judicial Proceedings and Custodial Interrogation

Police custody often refers to when a police officer arrests a suspect. This includes when they bring the suspect to the police station. However, it can apply to any situation where police have deprived a person of their freedom of action.

Criminal defendants are generally entitled to counsel throughout their criminal trial. This protects the defendant's right to a fair trial.

This article provides information about the following:

  • Custodial interrogations
  • The Sixth Amendment right to counsel explained
  • When the right to counsel attaches
  • What happens if law enforcement violates your right to counsel

This article will also address criminal proceedings from arrest through trial and the Constitutional protections that go with them.

Custodial Interrogations Explained

Custodial interrogation refers to instances where:

  • A criminal suspect is in police custody
  • Police questioning has begun

A defendant can challenge whether a custodial interrogation occurred. In that case, courts will look at the totality of the circumstances. Courts use the reasonable person standard in their determination. The analysis involves whether a reasonable person would consider law enforcement's actions as restricting their freedom of action.

Custodial Interrogation and Miranda Rights

The concept of custodial interrogation is important. Before a law enforcement officer can interrogate a suspect, they must inform the suspect of their Miranda rights. The Miranda rights, also known as Miranda warnings, come from the Supreme Court case Miranda v. Arizona.

The Miranda rights inform a suspect of the following constitutional rights:

A suspect must invoke their right to counsel. To do so, a criminal suspect must state something like, “I want a lawyer." However, if a suspect invokes this right but makes incriminating statements to law enforcement that were not prompted by police questions before their counsel arrives, this may constitute a waiver of their right. In this situation, the prosecution may use the statements in the suspect's criminal trial.

Sixth Amendment Right to Counsel

The Sixth Amendment right to counsel only applies in criminal cases. In civil cases, parties to a lawsuit do not have a Sixth Amendment right to counsel. The Sixth Amendment right to counsel takes effect when the government charges the defendant with a crime. The Fifth Amendment right to counsel only applies during law enforcement's custodial interrogation of a suspect.

To invoke their Fifth Amendment right to counsel, a suspect must clearly invoke the right. Once the suspect invokes their right, police must cease questioning the suspect. They can resume questioning once the suspect's attorney arrives if the suspect still agrees to speak with interrogators.

When Does the Sixth Amendment Right to Counsel Attach?

The Sixth Amendment right to counsel attaches when law enforcement formally charges someone with a crime. This occurs when someone is either indicted or arraigned. To be clear, if law enforcement takes an arrestee to jail, that is not a formal charge.

The Sixth Amendment right to counsel may also begin when adversarial proceedings start. In Michigan v. Jackson (1986), the U.S. Supreme Court determined what police are prohibited from doing once someone invokes their Sixth Amendment right to counsel and the right attaches. Once the right attaches, the police are forbidden from interrogating the defendant without counsel present.

The Supreme Court overruled Michigan v. Jackson in a 2009 case (Montejo v. Louisiana). In the subsequent case, the defendant waived his right to counsel after the government appointed him a lawyer. The case described the differences between the Fifth and Sixth Amendments' rights to counsel. If a defendant does not invoke their Fifth Amendment right but does rely on their Sixth Amendment right to counsel, police may begin another round of interrogation after they read the defendant their Miranda rights.

Violation of Right to Counsel

The court will exclude statements obtained in violation of a defendant's Sixth Amendment rights. There is, however, a critical exception to the Sixth Amendment exclusionary rule. At trial, law enforcement may use such evidence to impeach the defendant's testimony if they take the stand. Impeachment allows the criminal prosecution to attack the defendant's credibility.

Judicial Proceedings

The following sections describe different aspects of judicial proceedings.

Due Process: Grand Juries, Indictments, and Arraignments

Per the Fifth Amendment to the U.S. Constitution, the government must seek an indictment to prosecute someone for a felony. A grand jury decides whether to indict someone after reviewing evidence. Arraignments follow an indictment.

If law enforcement arrests a suspect for a lesser felony or a misdemeanor, the prosecutor will often file a criminal complaint or petition against them. The suspect's first court appearance is an arraignment.

Arraignments often occur when a suspect is summoned to court. If the person charged was not released by the magistrate or other authority when they were arrested, they will face the judge either in person or by video from jail. At an arraignment hearing, the judge informs the suspect of the following:

  • Their formal charges
  • Their right to counsel
  • If they cannot afford an attorney, the court will appoint one
  • The preliminary hearing date
  • The current status of their bond, if they are being held in jail

At the arraignment, the suspect will enter their plea of either guilty or not guilty. If the suspect proves they are indigent the court will appoint a public defender. In some state courts, a plea is not taken at arraignment but at the trial date instead. This allows the defendant time to confer with an attorney to decide whether it is best to plead guilty or not guilty.

How Does a Grand Jury Work?

Grand jury proceedings are typically reserved for serious crimes, like felonies. The grand jury procedure differs from state to state.

In general, federal grand juries are comprised of between 16 to 23 citizens. Grand jury proceedings are relatively secretive. The prosecutor introduces the law and evidence to the grand jury. The prosecutor may also present witnesses to testify. The grand jury does not decide guilt or innocence. Instead, they decide whether to indict the defendant. If the grand jury indicts a defendant, the defendant may be charged at an arraignment hearing.

For more information about the grand jury process, read FindLaw's How Does a Grand Jury Work? article.

Arrest, Booking, and Bail

Police arrest someone when they take them into custody and restrict their freedom to act. Following an arrest, police will book the arrestee. Booking refers to law enforcement's process of collecting information from the arrestee. This can include collecting fingerprints and identification. Subsequently, a judge will often set the arrestee's bail amount at the arraignment. In some cases, arrestees may pay some money to release themselves from custody.

For more information, read FindLaw's Arrest, Booking, and Bail article.

Searches and Seizures: The Limitations of the Police

The Fourth Amendment protects citizens from unreasonable government searches and seizures. Supreme Court precedent has clarified what constitutes a search and has also spelled out exceptions to the general warrant requirement. The Fourth Amendment plays a critical role in criminal procedure, so it is essential to understand your rights concerning searches and seizures.

FindLaw's article on searches and seizures summarizes limits on law enforcement's conduct while performing a search.

Samples of State Court Decisions on Double Jeopardy

Double jeopardy refers to the protection against multiple prosecutions for the same offense. Without double jeopardy protection, the government could endlessly prosecute a criminal defendant. Each state has its own state constitutional rules regarding double jeopardy.

FindLaw provides a sampling of state court decisions regarding the protection against double jeopardy.

Fifth Amendment Right Against Self-Incrimination

As noted above, the Fifth Amendment provides citizens a right against self-incrimination. FindLaw's article about the Fifth Amendment summarizes the right, its history, and what it means to plead the Fifth. In general, criminal defendants may refuse to answer questions that could incriminate them. The article also covers when a defendant waives their right against self-incrimination.

Sixth Amendment Right to Counsel

FindLaw's section on the Sixth Amendment provides articles about criminal defendants' rights. This includes the right to have an attorney present during a criminal proceeding. Articles include the following:

The right to counsel is one of the most important rights criminal defendants possess. Defendants may unknowingly waive this constitutional right, so it's critical that defendants understand their right to counsel.

Additional Resources

If you have additional questions about a defendant's rights, the following links discuss these topics in more detail:

If you have additional questions, consider contacting a criminal defense attorney.

Contact an Attorney to Better Understand Judicial Proceedings

Criminal laws are notoriously complicated, even for legal professionals. An experienced attorney can provide specific information regarding the following:

  • Whether law enforcement had probable cause to arrest you
  • Whether a custodial interrogation began for Miranda purposes
  • Appellate procedure and appeals
  • Whether law enforcement violated your right to have counsel present
  • Defense and litigation strategy at the trial court level

Start now by finding an experienced criminal defense lawyer near you.

Was this helpful?

Can I Solve This on My Own or Do I Need an Attorney?

  • Complex criminal defense situations usually require a lawyer
  • Defense attorneys can help protect your rights
  • A lawyer can seek to reduce or eliminate criminal penalties

Get tailored advice and ask your legal questions. Many attorneys offer free consultations.


If you need an attorney, find one right now.