Criminal Law

The Right to Counsel in Criminal Cases

By Riccola Voigt, Attorney
Understanding the right to have an attorney, how to waive the right, and when the right to an attorney is violated.

Both the Fifth and Sixth Amendments to the United States Constitution provide the right to counsel. While these rights sometimes overlap, they serve separate purposes and become applicable at different stages in the criminal justice process. This article discusses the differences between the two rights, the remedy when the rights are violated, and how a person waives the right to counsel. (Note: Criminal defendants charged in state court may have a more expansive right to an attorney under state law.)

The Fifth Amendment Right to Counsel

The Fifth Amendment provides protection against compelled self-incrimination in any criminal case. In other words, you aren’t required to be a witness against yourself. In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court determined that the Fifth Amendment’s protection against compelled self-incrimination includes the right to counsel.

The Fifth Amendment right to counsel applies during “custodial interrogations.” In other words, a person has the right to have an attorney present when the person is in custody and is being questioned. For purposes of the Fifth Amendment, the term “in custody” means the person is formally arrested or is otherwise deprived of freedom in a significant way. An “interrogation” refers to express questioning and any words or actions of a police officer that the officer should know are reasonably likely to elicit an incriminating response.

To invoke the right to counsel, a person must “unambiguously” request the presence of an attorney. The request must be clear enough that a reasonable officer would understand the statement to be a request for an attorney. Once the right to counsel has been invoked, the Fifth Amendment prohibits questioning by the police without counsel present regarding the offense for which the suspect is being detained and any separate offenses or investigations.

The Sixth Amendment Right to Counsel

The Sixth Amendment guarantees the assistance of counsel in criminal proceedings. If a defendant can’t afford to hire an attorney, the court will appoint one at the government’s expense.

The Sixth Amendment right to counsel applies when the government’s role shifts from investigating a suspect to accusing a defendant of a crime. To ensure fairness in criminal proceedings, the Sixth Amendment provides the right to counsel during the “critical stages” of a criminal prosecution. The right initially attaches when criminal proceedings are commenced against a person by a formal charge, preliminary hearing, indictment, information, or arraignment.

The right to counsel under the Sixth Amendment means that criminal defendants are entitled to the “effective” assistance of counsel. An attorney’s assistance is considered to be ineffective if:

  • the attorney’s representation was deficient as measured by an objective standard of reasonableness, considering all the circumstances, including professional customs, and
  • it’s reasonably probable that the outcome of the trial was affected by the attorney’s errors or conduct.

Once criminal proceedings have been initiated, the right to counsel under the Sixth Amendment also applies to interrogations and police are prohibited from “deliberately eliciting” incriminating information from a defendant without counsel present. Deliberate elicitation means the police intentionally create a scenario that’s likely to induce the accused to make incriminating statements. To prevent questioning by the police after the initiation of criminal proceedings, a defendant must affirmatively invoke the right to counsel by requesting or retaining counsel.

Unlike the Fifth Amendment, the Sixth Amendment right to counsel is “offense-specific,” meaning it provides protection only to the offense for which the defendant is being prosecuted. Thus, police can elicit information from a defendant without counsel present regarding offenses for which the defendant has not been charged.

Waiver of the Right to Counsel

The Fifth and Sixth Amendment rights to counsel can be waived if the waiver is made knowingly, voluntarily, and intelligently. The person must be competent to understand and appreciate the right to counsel and the consequences of waiving it. The waiver must be a free and deliberate choice and a person’s silence doesn’t constitute a valid waiver. In determining whether the waiver is valid, courts consider the totality of the circumstances, including the background, experience, and conduct of the accused.

Fifth Amendment Waiver. Under the Fifth Amendment, an express statement isn’t required for a valid waiver of the right to counsel. Rather, after being advised of the right to counsel, implying a desire to waive that right by words or conduct constitutes a valid waiver. However, a person doesn’t waive the privilege by answering some questions or voluntarily providing some information before invoking the right to counsel.

Generally, once a person invokes the Fifth Amendment right to counsel, a subsequent waiver of that right is invalid unless the person initiates contact with the police. A suspect who initiates a conversation with the police by conveying a desire to have a discussion about the investigation, waives the right to have an attorney present. Furthermore, if the accused is released from the custodial interrogation for at least 14 days, police can reinitiate questioning.

Sixth Amendment Waiver. The Sixth Amendment right to counsel includes the right to self-representation. Therefore, a defendant can waive the right to counsel and proceed pro se (self-represented).

To validly waive the Sixth Amendment right to counsel, the defendant must be informed of the dangers and disadvantages of self-representation—meaning, the judge must determine that the defendant knew of the right to be represented by an attorney and intentionally waived that right.

Violation of Right to Counsel

Once a person requests a lawyer, police must stop all questioning until counsel has been made available. Merely providing a person with the opportunity to speak with a lawyer before questioning isn’t sufficient. Rather, the lawyer must be present for all future interrogations that are initiated by the police.

When the right to counsel under the Fifth or Sixth Amendment is violated, the remedy is typically exclusion of the evidence at trial. Any statements made in response to police questions after a person has invoked the right to counsel are not admissible as evidence at trial. However, statements obtained in violation of the Fifth or Sixth Amendment are admissible for impeachment purposes. For example, if a defendant’s testimony is inconsistent with prior statements to police, the prior illegally obtained statements are admissible to show the inconsistency and impeach the defendant’s testimony.

If a financially eligible defendant is not provided with a court-appointed attorney as required by the Sixth Amendment, the remedy is an appeal. The defendant can challenge the failure to provide an attorney or the refusal to allow the defendant to proceed pro se.

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