Understanding Your Right to Counsel in Criminal Proceedings

This means defendants have a right to an attorney in most criminal proceedings. But, there are limits to the right to counsel within the criminal justice system.

Not every defendant is entitled to a court-appointed attorney. If you're facing a criminal charge, invoke your right to counsel immediately to ensure you have dedicated legal help by your side. Contact a criminal defense attorney in your area today. 

This article discusses how and when to invoke the right to counsel during a criminal case. You'll learn more about the legal protections and limitations this right affords.

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 it.

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.

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" 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.  These defendants may be:

• Mentally ill
• Developmentally disabled
• Children
• Incarcerated people

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 in Post-Conviction Proceedings

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
• Expungement proceedings

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 More About the Right to Counsel

Use the linked material below to learn more about the right to counsel in criminal court.

• 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.
• 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.

Exercising Your Right to Counsel: Get a Lawyer's Help

Invoking your right to counsel is crucial when facing criminal charges. A skilled defense attorney can guide you through this process, protecting your rights from the moment you request legal representation. Contact a local criminal law attorney for the legal expertise you need to effectively defend yourself in court and protect your interests.