Constitutional Right to Legal Counsel


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Any citizen in the United States who is facing criminal charges is guaranteed the right to legal counsel. If he or she cannot afford his or her own lawyer, one will be appointed to him or her. Despite this fundamental right, many individuals are not aware of this right, how far this right extends, the rights associated with the right to legal counsel and when a person qualifies to have a lawyer appointed by the court.

When someone is accused of a crime, he or she can hire a criminal defense lawyer who is equipped to protect the defendant throughout the process.

Federal Protections

The Sixth Amendment of the United States Constitution gives someone the right to have a lawyer if he or she faces criminal charges.

State Constitutions

Some states specifically provide for the equivalent right to legal counsel in their state constitution. These legal protections generally provide this right for people facing felony charges. Some of these provide a broader scope of this right than the federal constitution provides.

Fourteenth Amendment

The Fourteenth Amendment to the United States effectively provides this right to individuals charged under state crimes. Even if there is not a specific right in the state constitution, individuals charged of state crimes have the right to seek legal counsel.

When the Right Attaches

It is also important to understand when this protection attaches. A criminal defendant has the right to legal counsel at every critical stage of a criminal proceeding. For federal charges, it attaches when the defendant is facing adversary judicial proceedings. Generally, the right attaches when a defendant is indicted, is scheduled for a preliminary hearing, has an information assigned against him or her or is arraigned.

A defendant must be facing actual charges of a crime in order for this right to attach. This right does not arise simply because the defendant is a suspect of a crime or is under investigation. Similarly, an arrest does not automatically trigger this right. However, a person who believes he or she is under investigation has the right to hire a lawyer.

If the right arises, the government cannot do anything to interfere with the defendantís right to seek legal counsel. The right is afforded only in criminal cases, not in civil or administrative proceedings or in those proceedings associated with suspending a personís driverís license.

Court Appointed Lawyer

In order for a defendant to receive a court appointed lawyer, he or she must be considered indigent. This is determined by assessing whether the individual meets criteria established by the court when such criteria exist. Some states do not use a particular formula or income guideline and determine this on a case-by-case basis. In these states, courts look at the totality of the defendantís financial circumstances, including his or her income, assets, debts and other financial obligations that affect his or her ability to pay for a lawyer.

When the court appoints the lawyer for the defendant, the defendant does not have the right to personally choose the lawyer. Instead, the court assigns a public defender on his or her behalf. This lawyer is usually only required to handle the trial and the first appeal.

Waiving the Right to a Lawyer

Although a criminal defendant has a right to a lawyer, he or she has the right to waive this fundamental right. However, the court strongly advises against this action and requires the defendant to show that he or she is competent to make this decision and choosing to waive this right in a knowing, intelligent and voluntary manner. Before allowing a criminal defendant to represent himself or herself, the judge will ensure that the defendant has a clear understanding of the disadvantages of representing oneself in court.

These consequences are significant. Criminal defense lawyers often have years of education and training and understanding the complex and confusing criminal justice system. Additionally, certain procedures must be followed and a self-represented defendant must follow the same rules and is not provide leeway simply because he or she is not a legal professional. A self-represented client cannot usually get caught up to speed on constitutional protections, criminal procedures and criminal defense within the short period of time before trial. Additionally, criminal defense lawyers often have working relationships with the prosecutor and may be able secure a plea agreement that works to the advantage of the defendant while he or she may not have any incentive to work with a self-represented defendant.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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