Justice System A Criminal Defendant's Right to Counsel

  1. The Miranda Warning read to a criminal defendant upon arrest generally states that “you have the right to an attorney. If you cannot afford an attorney, one will be provided for you free of charge.” Your "right to counsel" is the right to have an attorney present to help you defend against criminal charges. When does this right begin? When does it end? What are the limitations?

    Sixth Amendment Right to Counsel

    The Sixth Amendment to the U.S. Constitution guarantees a criminal defendant with the right to be represented by a lawyer during any criminal proceeding. If the defendant does not have the money to hire a lawyer, in most cases, the government will find and provide a criminal attorney for them at no cost. A defendant has the right to be defended by a lawyer at every stage of the criminal process, not just at the trial stage. Right of representation includes from the time of an interrogation after an arrest to the end of any appropriate appeal. Other rights of a criminal defendant that flow from the Sixth Amendment include:
    • Being informed of all the criminal charges being sought against the defendant (also known as an “indictment”)
    • To have the case moved forward without undue delay (a “speedy trial”);
    • To an impartial jury;
    • To call witnesses to testify on behalf of the defendant;
    • For the jury to hear all witnesses and examine all evidence;
    • To be present at trial and confront witnesses testifying the defendant;
    • To testify on one’s own behalf;
    • To refuse the opportunity to testify and be cross examined;
    • To self-representation – to act as one’s own attorney;
    • To have assistance of legal counsel;
    • To require that the prosecution prove its case beyond any reasonable doubt.

    How Criminal Attorneys Help Defendants

    The role of the defense lawyer is extremely important in every aspect of a criminal case. The type of crime may determine specific duties the attorney will have to undertake. But in most cases, a criminal attorney will provide the following types of assistance to defendants:
    • Providing the defendant with an understanding of each stage of the criminal process and helping gage expectations;
    • Giving defendants advice about their Constitutional rights;
    • Ensuring that the Constitutional rights of the defendant are not violated by court proceedings or via the conduct of law enforcement officers;
    • Handling plea bargain negotiations with the prosecutor on behalf of the defendant;
    • Examining evidence and facts of the case and setting forth further investigation where it may be warranted;
    • Performing direct examination of witnesses for the defense;
    • Performing cross examination of witnesses for the prosecution;
    • Making objections in court to any improper or inadmissible evidence sought to be admitted into court for the case against the defendant;
    • Making objects in court to any improper questions being asked to any witness, including the defendant;
    • Presenting the case in court on behalf of the defendant.

    How to Invoke the Right to a Lawyer

    A person can elect to invoke the right to assistance of counsel at any time – during interrogation, lineups, arraignment and at any point during a trial or after on appeal. When doing so, all police questioning must stop. A criminal suspect or defendant must state the desire to have a lawyer in a serious manner, without question and in a timely fashion. After reading a Miranda statement, the police are not required to ask a suspect during arrest or questioning whether they want a lawyer. It is the suspect’s obligation to invoke the right to an attorney.

    Right to a Criminal Lawyer at No Cost: Public Defender

    If a criminal suspect or defendant cannot afford an attorney, one will be appointed by a judge and compensated by the government if the defendant faces more than six months or more in jail. It is common for the court to appoint a public defender when a defendant faces any jail time although this is not a certainty with petty offenses (crimes punishable by a fane and/or six months or less of jail time.) The judge usually appoints an attorney for indigent defendants at an arraignment or bail hearing, which is the first criminal court appearance.

    Standards Criminal Lawyers Must Meet

    Criminal defendants are entitled to the “effective assistance of counsel” regardless of whether they or the government paid for the lawyer’s assistance. A criminal attorney must do a competent job. If a defendant claims that the lawyer’s performance was inadequate, it must be shown that the negligent or inappropriate actions of the lawyer affected the outcome of the trial.
    Criminal Law & Procedure:
    Criminal Attorneys

    Michael Wechsler

    Michael Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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