Most people don't know that there are two references to the right to counsel in the U.S. Constitution. The first is the right to counsel while under interrogation (or Miranda rights) which is found in the Fifth Amendment. The second is the right to counsel afforded by the Sixth Amendment. Here we'll review how the latter comes into play during criminal prosecutions.
The Right to Counsel During Trial
The Sixth Amendment specifically grants the assistance to counsel in any criminal prosecution. The Supreme Court has interpreted this to mean that a defendant has the right to an attorney at all critical phases of the prosecution. This means that a suspect can receive a lawyer's help from the moment of the arrest all the way through the appeals process.
The Benefit of Having Assistance of Counsel
This constitutional right promotes the fair administration of justice by assisting the defendant to challenge the legality of the prosecution. In the typical criminal case, an defense attorney plays several different roles. The attorney is responsible for informing the defendant about the criminal process. The attorney will also analyze the case for possible constitutional violations that could get the case dismissed. A defense lawyer also plays an important role as a negotiator when trying to secure a favorable plea deal. At trial, defense counsel plays a very important role as a trial advocate. Finally, the defendant's attorney acts as an investigator who verifies or disproves the facts alleged by the prosecution.
Under the Sixth Amendment, an attorney must provide "effective assistance" of counsel. This means that the attorney must use his or her best efforts in the representation. An attorney must also adhere to the standard of ethics. Theoretically, if an attorney fails to provide effective assistance, the court could require that the case be retried. However, this only occurs in a very small percentage of cases.
What To Do If You Are Arrested
Once you are arrested by law enforcement it is important to understand that the right to counsel may be activated immediately. It is wise to consult an attorney, such as those at the Sandy law office, before speaking to police. In many scenarios, hiring a private defense attorney can be a better choice than using a public defender. Private attorneys are usually able to dedicate more time and effort to a defense. If you have questions about retaining an attorney for a criminal matter, contact Spencer and Jensen, PLLC.