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Right to an Attorney

Miranda rights are designed to make sure people are aware of their constitutional rights before being interrogated (see Miranda Rights: A Brief History). Any information gained before a suspect is read his or her Miranda rights may be argued to be inadmissible in court. One of these rights that the accused must be informed of is their right to an attorney. No one has to go through a police interrogation without his or her lawyer present. The other part of this right is that if you cannot afford an attorney, one will be provided to you.

  • Though the Fifth Amendment does not expressly state that the accused have a right to the attorney, it does state that the accused have the right to not incriminate themselves and have the right to due process. Over the years, the court has interpreted this to mean that the accused have the right to an attorney upon arrest in order to prevent accidental or unwitting self-incrimination.
  • The Sixth Amendment does use specific language providing the criminally accused with the right to counsel; however, the Sixth Amendment right is only afforded to an individual once they have been formally charged with a crime. In this sense, the Sixth Amendment does not provide the right to an attorney upon arrest, while the Fifth Amendment does. The Sixth Amendment also guarantees that if a person cannot afford an attorney, one will be provided for him or her.

Court-appointed counsel is not available for every type of crime like a traffic ticket or other small infractions, however. A person must establish that they cannot afford to hire a private defense attorney. Guidelines for determining eligibility vary from jurisdiction to jurisdiction. Just because a person believes they cannot afford an attorney, does not mean that they are qualified for a public defender. A person must meet the standards for the jurisdiction they are in to be eligible for a public defender.

People accused of misdemeanors or petty crimes also may not be eligible to have an attorney appointed to them. Generally, the right to an attorney is reserved for those individuals who face serious felony charges or the possibility of a prison term if convicted. If you are not sure if you have the right to an attorney, contact a defense attorney in your state and find out.

It is imperative to have an attorney working for you if you have been accused of or charged with a crime. While anyone may waive their right to an attorney, it is generally not advisable to do so. An attorney can inform you of your rights, make sure those rights are protected and work as an advocate for your best interests. Additionally, a criminal defense attorney should be intimately familiar with the criminal justice system and help you navigate complex legal waters.