The Right To Counsel

The Sixth Amendment says that someone accused of a crime has the right to counsel to defend him or her in criminal prosecutions. Court decisions have established that the assistance of counsel must also be effective.

The Sixth Amendment guarantee applies to anyone facing federal criminal charges. The 14th Amendment and some state constitutions also afford this right to anyone facing state felony charges or misdemeanor charges eligible for incarceration.

Broadly, the Sixth Amendment means that at the point when the government takes an official adversarial position against someone in “judicial proceedings,” the defendant may not be questioned or face adversarial proceedings without his or her attorney present unless the defendant has legally waived that right.

Normally once a crime has been charged the defendant’s lawyer must be there for “critical confrontations” and “critical stages,” including interrogation, lineup, probable cause hearing, arraignment, plea hearing, felony trial, misdemeanor trial where jail time could be imposed, sentencing, and appeal if by right. The Sixth Amendment right also gives a juvenile defendant has the right to a lawyer at a delinquency hearing.

The right does not attach if the individual is merely suspected of committing a crime. It does not usually attach during the investigative stage prior to the filing of charges — even if the individual is the only suspect. An arrest, without formal charges, also does not trigger the Sixth Amendment right. This does not mean, however, that an individual being investigated for a crime cannot or should not have a lawyer.

Once the right to counsel has attached, the state cannot interfere with the defendant’s right to seek counsel and must honor the right.