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Sixth Amendment Right To Counsel: What is it?

By Deanne Katz, Esq. on September 07, 2012 7:02 AM

The Sixth Amendment guarantees your right to an attorney. That sounds all well and good but we all know there's no such thing as a free lunch. There has to be a catch somewhere, right?

Well, not really.

The Sixth Amendment only provides the right to an attorney at a criminal prosecution so in a civil suit it won't help you out much. But civil suits result in fines which, while possibly challenging to pay off, won't take away your freedom.

Criminal suits can result in jail time, so it's important to have someone on your side every step of the way.

Hold on. Is it really every step of the way?

Easy answers first: The Sixth Amendment provides a right to an attorney during any court appearance in a criminal trial.

From watching Law and Order, you may also know the Sixth Amendment can apply when you're being questioned by the police. Anytime there's a "custodial interrogation," one where the subject is being asked questions and is not free to leave, there's a right to have an attorney present.

If you've been read your Miranda rights, it means any questioning is "custodial" and you have a right to have an attorney present when it happens.

Identification evidence collected after a defendant is taken into custody, such as through a lineup, must be done in the presence of an attorney. The defendant also has a right to have an attorney during pre-trial matters before the court.

Even after a defendant is found guilty, there is still a limited right to a lawyer. The legal system must provide an attorney during any sentencing proceedings and often for the first appeal following conviction.

There are also some key times after the trial concludes when the right to an attorney does not apply.

There is no right to a lawyer during a post-conviction hearing for parole or probation or one that revokes parole. Defendants aren't entitled to a lawyer during prison discipline hearings either.

The criminal investigation and trial process is not as neat as it may appear on television and it can be difficult to determine when the right to an attorney kicks in.

Unlike the right to remain silent, have to speak up to invoke your Sixth Amendment rights. If you're unsure, tell police you want to speak to an attorney.

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