| Introduction | | | | encounters is the initiation (beginning) of formal criminal |
| In a criminal setting, it is commonly known that the | | | | proceedings. The case Brewer v. Williams, 430 U.S. |
| accused has a legal right to be represented by an | | | | 387 names the following situations as instances that |
| attorney. However, it is probably not as well known | | | | initiate criminal proceedings. |
| that the right to an attorney is limited and only exists | | | | - Appearance in front of a judge for the purpose of |
| during certain phases of a criminal proceeding called | | | | issuing formal charges |
| "critical stages". The general right to an attorney is | | | | - Preliminary hearings |
| called the "Right to Counsel" and is provided for in the | | | | - Indictments (this is where formal charges are brought |
| 6th Amendment of the United States Constitution. | | | | against the accused in front of a grand jury) |
| "Counsel" simply refers to a lawyer or lawyers | | | | - Information (this is like an indictment only it is written |
| conducting a case in a court of law. | | | | and presented by a public official rather than a grand |
| The 6th Amendment right to counsel should not be | | | | jury) |
| confused with the right to an attorney provided in the | | | | - Arraignments |
| 5th Amendment. The 5th Amendment deals with | | | | These phases of trial are considered to be "critical |
| Miranda Warnings, which are popularized in the | | | | stages", and the accused definitely has the right to |
| phrases recited by policemen upon arresting a suspect: | | | | counsel during these stages. Also, it is at this point that |
| "You have the right to remain silent...Anything you say | | | | the right to counsel is said to "attach", meaning that the |
| can and will be used against you in a court of law...You | | | | accused can now claim their right to counsel. Take |
| have the right to an attorney". The 5th Amendment | | | | note that the initial appearance in court wherein the |
| right applies to police custodial interrogations, while the | | | | judge simply informs the accused of their charges and |
| 6th Amendment right deals with proceedings after | | | | rights is not a critical stage. |
| formal charges have been filed by the state. | | | | Other phases of trial that courts have identified as |
| The 6th Amendment right to counsel is very broad | | | | critical stages are: pretrial hearings related to bail, the |
| and includes such matters as effectiveness of counsel | | | | suppression of evidence, or the viability of the |
| and representing one's self. This article focuses mainly | | | | prosecution's case(Smith v. Lockhart, 923 F.2d 1314 |
| on the differences between 5th and 6th amendment | | | | [8th Cir. 1991]). |
| rights, as well as the critical stages during which the | | | | "Noncritical stages"-phases of trial during which the |
| right to counsel may be invoked. | | | | accused does not have the right to counsel |
| Differences between 5th Amendment and 6th | | | | There are several phases of trial proceedings that are |
| Amendment Rights | | | | not considered to be critical stages. Courts refer to |
| As mentioned above, the Constitution provides for the | | | | these as "noncritical stages", and the accused does |
| right to an attorney in both the 5th Amendment and | | | | not have the right to have counsel present during them. |
| the 6th Amendment. There are significant differences | | | | This is because they are considered to be preliminary |
| between the two. | | | | matters that are unassociated with the more |
| 5th Amendment rights | | | | adversarial phases of prosecution. Examples of |
| Under the 5th Amendment, the right to an attorney | | | | noncritical stages are: |
| applies only during a custodial interrogation by the | | | | · Fingerprint taking and analysis |
| police. A custodial interrogation means that the person | | | | · Investigative lineups |
| is being held in custody by the police for the purposes | | | | · Photographic identifications |
| of interrogation. An example of a custodial interrogation | | | | · Taking samples of blood, clothing, hair, handwriting, or |
| is when a person is detained at the police station for | | | | voice samples |
| investigation of a crime. | | | | · Hearings to determine the existence of probable |
| The purpose of the 5th Amendment right is to allow | | | | cause |
| the suspect to consult with an attorney even though | | | | · Recesses during defendant's testimony |
| formal charges have not been brought, and no arrest | | | | · Proceedings regarding parole and probation issues |
| has yet been made. (Miranda v. Arizona, 384 U.S. 436, | | | | · Post-conviction proceedings |
| 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]). | | | | Again, the basic rationale is that such procedures are |
| During a custodial interrogation, the police are required | | | | more administrative and lack the confrontational |
| to recite the Miranda Warnings mentioned above in | | | | aspect that requires a lawyer. In other words, absence |
| order to inform the suspect that they are in fact being | | | | of an attorney at noncritical stages is not likely to |
| held in custody for an interrogation. Once the Miranda | | | | impair the defendant's right to fair trial or presentation |
| warnings are read or recited to the suspect, the | | | | of a defense. |
| person may decline to speak by stating that they wish | | | | Finally, in misdemeanor cases, the right to counsel is |
| to have a lawyer present. This is called "invoking the | | | | only granted if imprisonment has been imposed on the |
| 5th Amendment right to an attorney". | | | | person. Thus, if the punishment for a misdemeanor |
| Once the person invokes the 5th Amendment right to | | | | crime involves only a fine, then the right to counsel |
| an attorney, the police cannot question them any | | | | does not attach. The right to counsel is available in all |
| further until a lawyer is present. | | | | felony cases. |
| 6th Amendment Rights | | | | Remedy for violation of Right to Counsel |
| On the other hand, the 6th Amendment "right to | | | | Denial of counsel during a critical stage has |
| counsel" applies after the suspect has already been | | | | monumental effects on the outcome of the case. This |
| booked, and formal charges have already been issued | | | | may happen if the accused requests a lawyer during |
| against the accused. | | | | a critical stage, but the court denies or ignores their |
| The right to counsel "attaches" when formal criminal | | | | request. The Supreme Court has held that such denials |
| adversarial proceedings have been initiated (begun), | | | | are an unconstitutional deprivation of a fair trial. (United |
| although it only may be invoked at certain points of the | | | | States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. |
| proceedings called "critical stages". (Maine v. Moulton, | | | | Ed. 2d 657 [1984]).The remedy for denial of counsel is |
| 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 [1985]). | | | | that the conviction must be reversed. |
| The purpose of the 6th Amendment right to counsel is | | | | Waiver/replacement of counsel |
| to ensure that the accused is adequately protected by | | | | Defendants also have a 6th Amendment right to |
| a lawyer in an adversarial setting. The key word to | | | | decline representation by a lawyer and represent |
| remember is "adversarial", meaning that the accused is | | | | themselves in court. Self-representation is also known |
| being confronted by either the opposing party or a | | | | as pro se representation. The court is required to allow |
| state official such as a prosecutor or a judge. | | | | pro se representation, but only if the defendant makes |
| Another major difference between the two rights is | | | | a knowing and intelligent waiver of the right to counsel. |
| that the 5th Amendment right is not offense-specific, | | | | Also, the court must inform the person of the potential |
| while the 6th Amendment right is offense-specific. This | | | | disadvantages of pro se representation. The |
| means that, during a custodial interrogation, if the | | | | defendant must understand that pro se representation |
| suspect invokes the Miranda right, the police may not | | | | involves not only persuasion, but includes knowledge of |
| question them at all, even about different crimes. Under | | | | legal theories and proper court procedures. |
| the 6th Amendment right, state officials may not | | | | Conclusion |
| question them about the crime they are being charged | | | | Of course, all stages of a criminal trial are important in |
| for, but they can question them about other crimes. | | | | determining the outcome of the case. However, courts |
| Critical Stages- Initiation of Criminal Proceedings | | | | have decided that some phases of trial are "critical", in |
| The Supreme Court case United States v. Hidalgo, 7 | | | | the legal sense that they require the presence of a |
| F.3d 1566 [11th Cir. 1993] sets forth a basic definition of | | | | lawyer. It is important to remember that while the right |
| a critical stage: "A critical stage of prosecution includes | | | | to counsel is a guarantee, it only applies to critical |
| every instance in which the advice of counsel is | | | | stages wherein the defendant faces an adversarial |
| necessary to ensure a defendant's right to a fair trial | | | | setting and are at risk of an unfair trial if unrepresented. |
| or in which the absence of counsel might impair the | | | | If you feel that you have been denied the right to |
| preparation or presentation of a defense" (United | | | | counsel during a critical stage of a trial, you may have |
| States v. Hidalgo, 7 F.3d 1566 [11th Cir. 1993]). | | | | further legal resource for your case. |
| The first adversarial setting that an accused typically | | | | |