Right to Counsel

The Fifth and Sixth Amendments to the U.S. Constitution give criminal defendants the right to counsel. This means defendants have a right to an attorney in most criminal proceedings. But within the criminal justice system, there are limits to the right to counsel.

This section provides information on the types of proceedings and situations where a person has the right to an attorney. It will also discuss what this right guarantees and when it does not exist.

Invoking the Right to Counsel

While suspects have the right to the help of counsel, they must invoke this constitutional right. Defendants don't automatically get an attorney. They must invoke their right to appointment of counsel unequivocally and in a timely manner.

In a seminal Supreme Court case, Miranda v. Arizona, the court ruled that police must tell all criminal suspects that they have a right to remain silent, that anything they say can be used against them in a court of law, and that they have the right to counsel.

Under Miranda, the police must tell the suspect they have the right to an attorney. But law enforcement officers don't have to ask if they want a lawyer or other clarifying questions.

When To Invoke the Right to Counsel

Generally, people are entitled to counsel at all critical stages of criminal prosecutions. A defendant can invoke this right from arraignment until the end of a trial.

When the police conduct a custodial interrogation, the suspect is also entitled to counsel. If police gather any evidence in violation of this right, the judge will exclude this evidence.

But if a suspect makes an unsolicited statement during an interrogation — after invoking their right to counsel — the prosecutor can introduce these statements only to discredit the defendant's testimony. Even though a statement may be excluded from the prosecution's case, the prosecutor may use it in other circumstances. If the defendant takes the stand and says something different than a statement they made during interrogation, the prosecutor may use it.

Waiving the Right to Counsel

Not all defendants want the help of an attorney. Some want to enter a guilty plea right from the start. Others choose not to have counsel present even during their initial interrogation or preliminary hearings. This is the defendant's right.

If a defendant believes they will get a fair trial without the advocacy of an experienced criminal law attorney, that is their choice. It will be difficult for them to argue this point after the fact. If the defendant waives their Miranda rights, they must document the waiver and present it to the court.

The courts in Brewer v. Williams held that judges must give the defendant every benefit of the doubt. The state must prove that the defendant intentionally relinquished or abandoned their Sixth Amendment rights. The waiver of the right to counsel must be voluntary and clear.

The court must ensure that defendants get due process in criminal trials. As long as this is the case, whether the defendant chooses to be represented by counsel doesn't matter.

Court-Appointed Attorneys

Although jurisdictions vary, the Supreme Court, in Gideon v. Wainwright, indicated that — at a minimum — police interrogating an indigent person charged with a crime that may result in imprisonment must explain their right to counsel.

As spelled out in Argersinger v. Hamlin, this appointment of counsel is only available if the state charges a defendant with a crime that carries a potential jail or prison sentence. Not all indigent defendants have the right to an attorney. This is especially true in many misdemeanor criminal cases. If incarceration is possible, police must tell the defendant about their right to counsel.

There are exceptions to this rule. Those who fall under a "legal disability" (mentally ill, developmentally disabled, children, and incarcerated people, for example) are often appointed an attorney (or guardian ad litem) to "protect their interests" even though they may be appearing before the court in a civil matter.

Public defenders and court-appointed counsel often manage large caseloads. So, they may only meet with their clients occasionally or far in advance of court events. But their extensive practice experience and close relationships in the courtrooms where they practice mean they often have insights that private attorneys do not.

All defense lawyers must be available for their clients at critical stages of their criminal case. They must also avoid any potential conflicts of interest. The last thing an attorney wants is for a client to file for post-conviction relief based on ineffective assistance of counsel.


The right to counsel does not apply to certain post-conviction criminal law judicial proceedings. In general, the defendant has the right to counsel at sentencing, at the first appeal of right (in some states), and in capital cases, where a review of the effective assistance of counsel is necessary.

In Strickland v. Washington, the court held that a defendant must prove the following two things:

  • The attorney's performance fell below what an objective person would see as reasonable
  • Had the attorney performed reasonably, the outcome would have been different

If the defendant can prove these two things, they may get a new trial.

A defendant is typically not entitled to the assistance of counsel for discretionary appeals and petitions, motions for retrial, habeas corpus proceedings, parole hearings, clemency, pardon, commutation, or expungement proceedings. But as explained by the court in United States v. Wade, defendants have the right to an attorney during a police lineup if it happens during or after legal proceedings have begun against a defendant. In the Wade case, the defendant was indicted for the crime and was appointed counsel when asked to participate in a lineup.

Local rules may vary. Although a defendant may not have the right to an attorney provided by the state, they still have the right to the help of an attorney they have retained privately.

Learn About the Right to Counsel

  • The Right to Counsel — Introduction to the legal meaning of the "right to counsel," embedded in the Sixth Amendment but clarified through case law. An explanation of the primary responsibilities of criminal defense attorneys.
  • Invoking the Right to Counsel — What it means, from a legal standpoint, to invoke one's right to legal counsel as guaranteed by the Sixth Amendment protections, including the legality of police questioning in the absence of counsel.
  • Are You Entitled to a Court-Appointed Attorney? — How to determine whether you have the right to a court-appointed attorney in defense of one or more criminal charges.
  • The Miranda Case and the Right to Counsel — How the Miranda v. Arizona U.S. Supreme Court decision further empowered arrested people by requiring police to inform them of their right to legal counsel.
  • The Right to Adequate Representation — A primer on "adequate representation" in criminal defendants' right to legal counsel and the standards that public defenders must meet.
  • Rights Guaranteed by the Sixth Amendment — An overview of the right to legal representation when facing criminal charges, as guaranteed by the Sixth Amendment to the U.S. Constitution and clarified or amended through case law.

You Don't Have To Solve This on Your Own – Get a Lawyer's Help

If you believe someone has violated your constitutional rights, you should immediately meet with a criminal law attorney. They can help you understand your options and tell you how to proceed.

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