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I will be posting threads like this from time to time to try to keep people informed so you can protect yourself. From my experience, there is alot of faulty information spread around in reference to when you have the right to be represented by an attorney.
The right to defense counsel is derived from the sixth amendment to the constitution and is part of the Bill of Rights. This amendment was initially only applied to the federal courts, however, it was later expanded to include state courts based on the fourteenth amendment due process clause. This rule only applies if you are charged with a crime where a penatly for the offense can include jail time.
Your formal right to counsel attaches once you have been formally charged in a criminal court, this is usually an arraignment where the charges against you are read by a judge.
So what does this mean? It means that simply because you are arrested for an offense, does not mean you have to be provided an attorney by law enforcement personnel or even allowed to speak with one. A police officer, deputy sheriff, state trooper, etc. cannot charge you with a crime, they arrest. However, police officers often erroneously use this term when speaking to people. Only a prosecutor may charge someone with a crime. If you ever look at a traffic ticket or criminal summons you have been issued, usually somewhere on the ticket you will see a section for the prosecutor that says "this complaint is true as I verily believe". The prosecutor signs this prior to conducting the trial. This is how he or she "charges" you not the officer.
A great deal of confusion about this also stems from the wording of the Miranda warning, namely "you have the right to talk to a lawyer and have him present with you while being questioned. If you cannot afford to hire an attorney, one will be appointed to represent you if you wish". The miranda rule only applies if you are in custody and the police are asking you guilt seeking questions. Here is an example: you are arrested for committing a residential burglary and are taken to the local jail. After arriving at the jail, a detective escorts you to an interview room, reads you your miranda warning, and asks you if you would be willing to speak with him. You reply, "I want my lawyer". At this point, all the detective is required to do is not question you any further. He is not required to allow you to call an attorney, he doesn't have to allow an attorney representing you to speak with you, as you are not being questioned and you have not been formally charged in court with a crime. Another twist: Same situation, except when you get to jail, you call your Mom crying that you have been arrested for no reason. Without your knowledge, she calls an attorney who responds to the station to speak with you. When he arrives at the station, you are in the middle of an interview and are spilling your guts. The attorney demands that he be allowed to speak with you. Assuming you waived your miranda rights and were voluntarily giving a statement, since you did not invoke your right to be represented by counsel during questioning, the police are not obligated by any law to inform you of the attorneys presence or allow him to speak with you. The courts have ruled that the right to counsel can only be invoked by the accused not the attorney. Even if you demanded an attorney, if the police immediately stopped questioning you, they would not be required by law to allow the attorney to speak with you.
So, long story short, if you are stopped by the police and you have a pound of crack, a sawed off shotgun, and a dead hooker in your car, as long as the police are not interrogating you and you haven't been formally charged by a prosecutor, even if the attorney is sitting in the car next to you when you get arrested, they don't have to allow you to speak with him.
A final note: Each state has differnt laws regarding how long you may be held before you have to be charged with a crime. In my home state, Missouri, police can arrest and hold you for up to twenty four hours. If you are not cited for an offense or charged with a crime within that time, you have to be released. This is near the bottom of the spectrum. Some states can hold you up to forty eight or even seventy two hours before you must be released. If you are ever arrested for any offense, it would be in your best interest to not make any statement, no matter how minor the matter may seem to be, until you have the opportunity to consult an attorney. Invoking your fifth amendment right against self-incrimination or invoking your sixth amendment right to counsel cannot be used against you as evidence of guilt in a court of law or be used when determining probable cause for arrest.
The right to defense counsel is derived from the sixth amendment to the constitution and is part of the Bill of Rights. This amendment was initially only applied to the federal courts, however, it was later expanded to include state courts based on the fourteenth amendment due process clause. This rule only applies if you are charged with a crime where a penatly for the offense can include jail time.
Your formal right to counsel attaches once you have been formally charged in a criminal court, this is usually an arraignment where the charges against you are read by a judge.
So what does this mean? It means that simply because you are arrested for an offense, does not mean you have to be provided an attorney by law enforcement personnel or even allowed to speak with one. A police officer, deputy sheriff, state trooper, etc. cannot charge you with a crime, they arrest. However, police officers often erroneously use this term when speaking to people. Only a prosecutor may charge someone with a crime. If you ever look at a traffic ticket or criminal summons you have been issued, usually somewhere on the ticket you will see a section for the prosecutor that says "this complaint is true as I verily believe". The prosecutor signs this prior to conducting the trial. This is how he or she "charges" you not the officer.
A great deal of confusion about this also stems from the wording of the Miranda warning, namely "you have the right to talk to a lawyer and have him present with you while being questioned. If you cannot afford to hire an attorney, one will be appointed to represent you if you wish". The miranda rule only applies if you are in custody and the police are asking you guilt seeking questions. Here is an example: you are arrested for committing a residential burglary and are taken to the local jail. After arriving at the jail, a detective escorts you to an interview room, reads you your miranda warning, and asks you if you would be willing to speak with him. You reply, "I want my lawyer". At this point, all the detective is required to do is not question you any further. He is not required to allow you to call an attorney, he doesn't have to allow an attorney representing you to speak with you, as you are not being questioned and you have not been formally charged in court with a crime. Another twist: Same situation, except when you get to jail, you call your Mom crying that you have been arrested for no reason. Without your knowledge, she calls an attorney who responds to the station to speak with you. When he arrives at the station, you are in the middle of an interview and are spilling your guts. The attorney demands that he be allowed to speak with you. Assuming you waived your miranda rights and were voluntarily giving a statement, since you did not invoke your right to be represented by counsel during questioning, the police are not obligated by any law to inform you of the attorneys presence or allow him to speak with you. The courts have ruled that the right to counsel can only be invoked by the accused not the attorney. Even if you demanded an attorney, if the police immediately stopped questioning you, they would not be required by law to allow the attorney to speak with you.
So, long story short, if you are stopped by the police and you have a pound of crack, a sawed off shotgun, and a dead hooker in your car, as long as the police are not interrogating you and you haven't been formally charged by a prosecutor, even if the attorney is sitting in the car next to you when you get arrested, they don't have to allow you to speak with him.
A final note: Each state has differnt laws regarding how long you may be held before you have to be charged with a crime. In my home state, Missouri, police can arrest and hold you for up to twenty four hours. If you are not cited for an offense or charged with a crime within that time, you have to be released. This is near the bottom of the spectrum. Some states can hold you up to forty eight or even seventy two hours before you must be released. If you are ever arrested for any offense, it would be in your best interest to not make any statement, no matter how minor the matter may seem to be, until you have the opportunity to consult an attorney. Invoking your fifth amendment right against self-incrimination or invoking your sixth amendment right to counsel cannot be used against you as evidence of guilt in a court of law or be used when determining probable cause for arrest.
