The Right to Counsel

The right to an attorney is granted to anyone charged with a federal crime by the Sixth Amendment of the U.S. Constitution.  The 14th Amendment and some state constitutions guarantee this right to anyone facing state felony charges.  People who cannot afford representation have the right to an appointed attorney for no charge.  In general, people do not understand what the right to an attorney actually is, or when it is available, or even who qualifies for a court-appointed lawyer.
An experienced criminal defense attorney is imperative if you have been accused of a serious crime.  Having an expert on your side will ensure your legal and constitutional rights are retained throughout the process of criminal justice.

Federal and State Law

The U.S. Constitution grants criminal defendants the right to counsel.  Some state constitutions also include this right and even go into further detail than the federal constitution.  If a state constitution does not include the right to counsel, it is still guaranteed to a defendant by the 14th Amendment.

Attachment of the Right

Under federal rules, the right to counsel attaches when the defendant has been charged with or indicted for a crime.  After the right has attached, the criminal defendant has the right to an attorney for every stage of the criminal justice process.  In more formal terms, the right to an attorney attaches when “adversary judicial proceedings” have begun against the defendant.  At this time, the defendant can have his attorney present for the preliminary hearing, information and arraignment.
The right to counsel does not attach if an individual is just a suspect in a crime, not even if he or she is the only suspect.   The right to an attorney attaches only when formal charges have been filed.  The individual being investigated can hire an attorney on his or her own at any time, but the specific right to counsel does not attach until the defendant has been charged with a crime.
Once a defendant has been charged with a crime and has the right to counsel, the state cannot interfere with that right, and actually has a duty to ensure the right is honored.  The right to counsel is not available in civil or administrative proceedings, during license suspension or revocation hearings.

Appointed Counsel

In actuality, the defendant must meet the definition of an indigent to receive a court-appointed lawyer.  Not being able to afford representation is not enough.  The trial court will determine whether a defendant is indigent.  Some jurisdictions have guidelines based on income, and the defendant will be presumed indigent if they do not make the minimum amount, but other jurisdictions look at each situation on a case by case basis.  In these states, the court looks at the total financial situation, including income, assets, debts, and any other financial obligations to decide whether the defendant should be appointed an attorney or afford one on his or her own.  Just because a defendant is currently unemployed, he or she may not be appointed counsel.
In a case where the defendant is appointed counsel, the defendant will not have a choice of attorney; the court will assign a public defender to the defendant.  The right to appointed counsel lasts as long as the trial and the first appeal of the trial court’s judgment.

Waiving the Right to an Attorney

Criminal defendants not only have the right to counsel, they also have the right to represent themselves in trial.  If a defendant chooses to waive the right to an attorney, he or she must be able to prove to the judge they have the mental capacity to waive the right, and they are making this choice knowingly and voluntarily.  The judge must make sure the defendant understands the disadvantages of not having attorney representation before allowing the waiver.

A defendant that is thinking about representing himself or herself in a criminal trial without the aid of an attorney should carefully consider the choice and consequences of this action.  A criminal trial is a complex, confusing, intricate event.  Not only do criminal defense attorneys have years of training for the system, but they are removed emotionally from the verdict, and will use their knowledge and skills to the best of their ability to protect the rights of the defendant. 

Conclusion

If you have been arrested for a criminal offense in California, it is important to begin working with an attorney as soon as possible.  Contact San Diego criminal lawyer Tim Richardson to learn more about your legal rights and understand what you should do next.