Waving the Right to Counsel |
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A defendant's "right to counsel" relies on both the Fifth and Sixth Amendments to the United States Constitution (and corollary state provisions). Both of these rights apply only to criminal - not civil proceedings, and which constitutional right is at play depends on the stage of the criminal proceedings. Although the Fifth Amendment right to counsel applies to broader stages, the Sixth Amendment right provides broader protection. Although suspects can choose to waive one or both of these rights, it is rarely advisable to do so.
The Fifth Amendment Implied Right to Counsel
Although the Fifth Amendment does not explicitly guarantee a right to counsel, the United States Supreme Court declared in Miranda v. Arizona that the Fifth Amendment's privilege against self-incrimination includes an implied right to counsel once a suspect is subject to "custodial interrogation" - meaning that the suspect is questioned by police in a restricted environment. Thus, once a suspect exercises the Miranda Right to Counsel, the State is required to "make counsel available" for the suspect, meaning that the suspect can not be questioned again unless an attorney who represents the suspect is present.
If you choose to waive your Miranda Right to Counsel, the police can question you, for example, at the police station without an attorney present to represent your interests. Although you may not feel like you need an attorney present, if you have waived your Miranda Right to Counsel, any incriminating statements that are made by you may be used as:
- Probable cause to support further investigation, including searches
- Evidence at trial against you
If you waived your Miranda Right to Counsel and the police or prosecution is know trying to use your statements against you, you can challenge that use by claiming that the waiver was not knowing and voluntary because, for example, you didn't understand the consequences of waiving the right.
The Sixth Amendment Right to Counsel
The Sixth Amendment to the United States Constitution provides criminal defendants with the right to rely on the assistance of counsel after formal charges are initiated. Criminal proceedings are not "initiated" until the government issues an indictment or information, or until the defendant's arraignment or preliminary hearing. In other words, the Sixth Amendment right to counsel does not apply merely because a suspect is under arrest unless exceptional circumstances are present. The Sixth Amendment right does not apply until the suspect becomes a defendant.
Once criminal proceedings are initiated, the Sixth Amendment right to counsel applies to all stages, from initial appearance to appeal. However, in order for the right to apply, a defendant must request counsel by telling the governmental authority who is handling the case at the time (be it a police officer or prosecutor), that the defendant requests the assistance of counsel. Moreover, if a criminal defendant can not afford to hire an attorney, both federal and state courts are constitutionally required to appoint counsel for the defendant.
Like the Miranda Right to Counsel, a defendant's waiver of the Sixth Amendment right to counsel must be voluntary, knowing, and intelligent. Thus, if the State tries to rely on statements made by a suspect when counsel was not there, the State must show that the suspect:
- Intentionally waived the right to counsel - by clearly communicating that waiver
- Clearly understood the nature of the right and consequences of abandoning it
Even if a defendant has nothing to hide, a criminal defense attorney will help speed up the process and will represent the defendant's interests throughout the proceedings. In most situations, if you waive your right to counsel, you essentially help the police and the prosecution engage in tactics that could easily result in a stronger case against you.
If a suspect waived his right to counsel and the State then tries to introduce statements made by the accused, a defendant can challenge the waiver by showing that it was not voluntarily, knowingly, or intelligently made. If the challenge is successful, the evidence can be excluded from trial.
The Sixth Amendment Right to Counsel Involving Juvenile Defendants
The Sixth Amendment right to counsel applies to juveniles accused of criminal offenses. However, several states prevent or severely limit a juvenile's ability to waive their Sixth Amendment right to counsel. Illinois, Iowa, and Texas completely prevent juveniles from waiving their right to counsel. Arizona, Georgia, Indiana, Louisiana, Maryland, Minnesota, Montana, New Jersey, New Mexico, Virginia, and West Virginia have specific requirements for Sixth Amendment right to counsel waivers by juveniles. Several other states require that juveniles consult with an attorney before waiving their Sixth Amendment right to counsel.
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