When do I have a right to an attorney?
This may seem like an easy question to answer, especially if you are familiar with Miranda rights. However, there are some differences between Miranda and your specific right to counsel. Although Miranda rights include notice that you have a right to counsel, the two rights come from different constitutional amendments. The Miranda warnings are derived from the Fifth Amendment, which basically says you can’t be forced to be a witness against yourself. In plain language, this means that you shouldn’t be forced to confess to anything, whether its true or not. The right to counsel is found in the Sixth Amendment, which says that everyone is entitled to counsel in the interest of justice, even if they can’t afford it.
The short answer to the above question is you have the right to an attorney whenever you so choose, but it is a guaranteed right in for criminal prosecutions. The real question is when does law enforcement have to honor your request for one.
In Massiah v. U.S., the Supreme Court created the threshold test for when you have a right to an attorney and when law enforcement violates that rights. First, adversarial criminal proceedings have been initiated. This includes a formal criminal charge, preliminary hearing, indictment, information, or arraignment. Second, law enforcement must deliberately try to elicit a statement from you. Basically, police have violated your right if you have invoked your right to have an attorney and they keep interrogating you or trying to get you to confess in some way. This means that once you have invoked your right to have an attorney present, police must stop interrogating you.
The right extends to every critical stage of the prosecution, not just a trial. You have the right to be represented by an attorney for a police line-up, probation hearing, sentencing, bond hearing, etc. A line-up or a show-up, even if it occurs prior to charging, is considered a critical stage of the case because it involves confrontation between the defendant and witness. However, a photo line-up does not have the same confrontational implications, so it isn’t included in the category of critical proceedings.
Just like your Miranda rights, you can waive your right to counsel. A waiver is done in much the same way, meaning it must be done voluntarily with the knowledge of what you are doing. You can waive your right to counsel even after you have invoked it, but police will have to obtain a waiver before they can initiate any more discussions about the case.
Unlike Miranda rights, which attach when a person is in custody, the right to counsel is charge specific. This means that even if you have invoked your right to have an attorney present for one charge, if police want to question you about something else that’s unrelated, the right to counsel technically does not include that issue.
There are so many gray areas and caveats to the rule that you should always seek the advice and counsel of a qualified Illinois Criminal Defense Attorney if you become involved in a criminal investigation.