Most people realize one of their fundamental constitutional rights under the U.S. Constitution includes a right to an attorney when charged with a crime. What some people may not realize is when such a right takes effect. This does not mean in most cases you are required to have a lawyer. A defendant can always represent them self, even at trial, so long as the defendant knowingly and intelligently waives his/her right to counsel. With that being said, it is certainly recommended to have representation and to understand when and how your right to a lawyer may arise. This article describes when your right to counsel applies, and when it does not.
Right to Counsel Prior to Trial
Your rights to an attorney can apply long before your case ever goes to trial. In fact, the majority of criminal cases never go to trial, but you still are entitled to a criminal defense lawyer during the following pre trial stages of your case:
- Custodial police interrogation. If you are taken in for questioning by the police, you have the right to have an attorney present during questioning.
- Post charges interrogation. If you have been charged and the police want to question you, you have the right to a lawyer.
- Preliminary Hearings. You have the right to a lawyer for any preliminary hearings to determine probable cause to prosecute.
- Arraignment. At the time you enter a plea of guilty or not guilty, you have the right to counsel.
- Post Charge Lineup. If you have already been charged and the police want you to do a post charge lineup, you have the right to have your defense lawyer present.
Right to Counsel at Trial
Many people believe they have a right to a court appointed attorney or public defender if their case goes to trial. This is not necessarily the case. In fact, you only have the right to an attorney at trial if incarceration is actually imposed as a result of your sentence. This means a judge may choose not to appoint an attorney for you in a case involving lower level offenses that carry no real risk of jail time.
Right to Counsel Post Trial
You have a right to counsel after trial for all sentencing hearings and also for appeals as a matter of right, and appeals of guilty or nolo contendere. Your right to counsel does not extend to post trial matters involving discretionary appeals, post conviction proceedings such as habeas corpus hearings, and parole or probation violations.
Should I hire a Lawyer?
There is no question a defendant charged with a crime is better off with an effective criminal defense lawyer that without. Statistics show better outcomes for represented defendants as a whole. May people wonder when they should retain counsel. The simple answer is this, as soon as you have any reason to suspect you may be charged with a crime. Do not want until you are actually arrested or charged. If you are being investigated by the police, you should have representation as soon as possible, especially before giving a statement otherwise cooperating in the investigation.