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Sixth Amendment Right to Counsel

When you are arrested, the police must inform you of your so-called “Miranda rights,” one of which is the right to have a lawyer present while you are being questioned. This right to counsel during custodial interrogation comes from the Fifth Amendment to the U.S. Constitution. But the Fifth Amendment is not the only source of the right to have a lawyer. The Constitution’s Sixth Amendment also provides that the accused in a criminal proceeding has the right to “the assistance of counsel for his defense.”

When does the 6th Amendment right to counsel apply?

While the Fifth Amendment right to counsel applies before criminal charges are filed, the Sixth Amendment right does not come into play until the state formally initiates criminal proceedings against you. Thus, if you are arrested and released without being charged, your Sixth Amendment right to counsel is never triggered. The Supreme Court has ruled that formal criminal proceedings begin when any of the following occur:

  • formal charge;
  • preliminary hearing;
  • information;
  • indictment; or
  • arraignment.

The right to counsel means that you have the right to a lawyer’s assistance during the “critical stages” of a criminal proceeding. Court decisions have established that such “critical stages” include:

  • arraignment;
  • post-indictment lineup;
  • post-indictment interrogation;
  • plea negotiations;
  • entering a guilty plea;
  • trial;
  • sentencing; and
  • an initial appeal after conviction.

Moreover, because the right to counsel is so important, courts will appoint an lawyer to represent an indigent defendant who cannot afford representation, to be compensated at government expense.   In such cases, the judge will typically appoint counsel the first time the defendant appears in court, usually at an arraignment or bail hearing.

What are the consequences for a violation of the 6th Amendment right to counsel?

Any evidence obtained in violation of a defendant’s right to counsel (for example, in post-interrogation questioning without a lawyer present) cannot be used against the defendant at trial. Moreover, the Supreme Court has held that the Sixth Amendment right to counsel requires “effective counsel.” Ineffective assistance of counsel is therefore grounds for appeal after a conviction.

What are the limits of the 6th Amendment right to counsel?

The Sixth Amendment applies only to criminal proceedings. Thus, there is no right to counsel in civil proceedings, even if the defendant in a civil suit cannot afford legal representation. Additionally, the right does not apply in non-felony state cases (that is, misdemeanors).

Consult an Orlando criminal defense lawyer

When you have been arrested, it matters whom you call. The experienced, focused criminal defense lawyers of The Baez Law Firm can represent you from your arrest through the conclusion of your case. The Baez Law Firm’s lawyers have represented clients in Orlando, Tampa, Miami, and throughout the state. Contact us today to discuss your case.

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