Published in Criminal Law by Chris Eskew on May 22, 2017.
What Amendment Gives You the Right to an Attorney?
Most defendants are aware that they have a right to an attorney.
They also have a right to remain silent.
However, knowing when to invoke such right is not as straightforward.
The Miranda v. Arizona requires that all law enforcement officers advise suspects of their rights, but only under arrest. These rights come from your Fifth Amendment right to the U.S. Constitution to protect you against self-incrimination.
Under your rights, an officer must:
- Tell you that what you say can be used against you;
- Inform you of your right to an attorney;
- Inform you of your right to a lawyer being present during questioning;
- Knowing you can receive an attorney free of cost if you cannot afford one;
- That if you answer questions, you can still choose to stop at any time.
Your right to counsel may be waived if you choose so, but you might also not meet the criteria for requiring an attorney.
Do not let this discourage you. Instead, to understand when your “right” technically starts, you must understand the Fifth and Sixth Amendment rights that establish it.
The Fifth Amendment and Your Rights
Under the Fifth Amendment, you are given various protections, especially the right against self-incrimination. In any criminal case, no one can force you to witness against yourself. Through Miranda rights, you are told of your Fifth Amendment rights.
However, this right to an attorney only starts when you are “in custody.”
Obviously, you know you are in custody if you are arrested. However, Fifth Amendment issues often arise when the determination of “in custody” comes under question. You might be in custody and have the right to an attorney even if you are not formally arrested. Therefore, you must know the differences of in custody and invoke your right instantly.
What Does “In Custody” Mean?
If you are in police custody, you have the right to counsel. Custody refers to when police officers or other forms of law enforcement restrict you or limit your freedoms to move. That means you cannot leave, and you are not permitted to get away from law enforcement. In this case, you are “in custody” even if the police have not officially arrested you.
An example would be if you are placed in the back of a police car and officers ask you questions. Even without handcuffs, you cannot leave the backseat of the police cruiser willingly, so you could reasonably suspect that you are in police custody. Therefore, you have the right not to answer questions and request an attorney.
If officers were to question you during a custodial situation, and they do not inform you of your rights, anything you say cannot be used against you, because your Fifth Amendment rights were violated.
However, the moment your Miranda rights are told to you, you should request an attorney and the police cannot ask any further questions until your lawyer arrives.
When You Sign a Waiver
You have the right to waive your right to Fifth Amendment protections. The officer might present you with a formal waiver which you sign. This lets them interrogate you without an attorney, and anything you say during that interrogation can then be used against you.
You must know what the waiver means for your rights. Law enforcement must explain it to you, and it is only enforceable if you knowingly and voluntarily sign that waiver. If you are tricked or coerced, the courts are unlikely to enforce it.
Even if you sign a waiver, you still have the right to invoke your Fifth Amendment rights. However, anything you say between the time you sign the waiver and the time you revoke your waiver is admissible in court and may be used against you.
Therefore, it is always best to never sign these waivers and instead invoke your right to counsel.
What is the Sixth Amendment?
While you are protected from self-incrimination under the Fifth Amendment, it is the Sixth Amendment that guarantees your right to an attorney. During the stages of a prosecution, you have the right to a lawyer.
However, there is a catch. Your right under the Sixth Amendment only goes into effect after judicial proceedings are started.
This means the following must occur:
- You are charged with a crime formally.
- A grand jury indicts you.
- A criminal complaint is filed against you with the court.
- You have appeared at your preliminary hearing, or you have had an arraignment hearing.
Just because you are a suspect in a crime does not mean you can invoke your Sixth Amendment right. Instead, during an investigation, obviously, when charges have not been filed, you can only use the protections of the Fifth Amendment.
However, that Fifth Amendment allows you the right to an attorney during your questioning.
What is the Purpose of the Sixth Amendment?
The Fifth and Sixth Amendments give you rights, but for different reasons.
The Fifth Amendment protects you from self-incrimination, while the Sixth Amendment is there to ensure a fair criminal trial.
After all, it is only fair that you have legal assistance during your defense if you are accused of a crime. Otherwise, you could be sent to prison unjustly, which is a violation of your right to a fair trial.
The Waiver of the Sixth Amendment
You can sign a waiver foregoing your right to counsel, but again this must be knowingly and voluntarily signed. Defendants will hear their rights to counsel by the judge during their arraignment hearing, typically. At this time, the judge will ask if the defendant wishes to waive their right to counsel or hire an attorney.
If the judge decides a defendant is incompetent or cannot defend them adequately, he or she cannot allow the defendant to sign the waiver or proceed pro se until competency is determined. In this case, an attorney is appointed to keep the momentum of the case going, while you would undergo a test.
Never Waive Your Rights – Contact a Criminal Defense Attorney Instead
Even if you are not officially charged, you always have the right to an attorney. If police are asking you questions and have not placed you into custody, you can deny the request to answer and wait until you have spoken to an attorney.
To protect your rights, call Eskew Law immediately when you realize you are the suspect of an investigation. You can also contact us online, and an attorney will be in touch quickly.