Exercising Your Right to an Attorney in a Criminal Case | When & How to Do It

Knowing your rights can mean the difference between incarceration and freedom when you’ve been charged, arrested, or under investigation for a crime. Among these rights is the right to an attorney, but while most people know about it, what they don’t know is when to invoke that right and how to do it.

As criminal defense attorneys, we’re passionate about educating our clients and the public about their rights under the law. In this article, we’re breaking down your fundamental right to an attorney and how to exercise it to your benefit.

What is the Right to an Attorney?

The right to legal representation isn’t just a courtesy—it’s a fundamental constitutional protection. Enshrined in the Sixth Amendment of the U.S. Constitution, this right ensures that individuals facing criminal charges have access to legal counsel. But it doesn’t stop there.

The Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense.” It means that from the moment criminal proceedings begin, you have the right to an attorney’s guidance and representation.

It also means that if you can not afford legal counsel, the government must provide an attorney for you in cases where imprisonment is a possible punishment.

Miranda Warnings

You’ve probably heard the famous Miranda warnings in countless TV shows and movies: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney…”

These are your Miranda rights, stemming from the landmark 1966 Supreme Court case Miranda v. Arizona. They serve as a reminder that your right to an attorney kicks in as soon as you’re in police custody and subject to interrogation.

When the Right to an Attorney Attaches

It’s important to understand that your right to an attorney “attaches” at specific points in the criminal justice process. In California, it applies at all critical stages of a criminal proceeding. This includes police interrogations, arraignments, preliminary hearings, trials, and even sentencing.

We recommend requesting an attorney as early in the process as possible to protect your constitutional rights and to begin building a strong defense strategy immediately.

Key Moments to Exercise Your Right to an Attorney

While you might know you have the right to an attorney, it’s not always clear when to use it. Let’s talk about when you should speak up and ask for a lawyer, even if you’re worried about looking guilty or uncooperative.

During Police Questioning

If the police want to question you about a crime, you have the right to have an attorney present. Don’t be fooled by reassurances that you’re “just answering a few questions” – if you’re suspected of a crime, it’s in your best interest to have legal counsel present.

At Arraignment and Initial Court Appearances

Your arraignment is typically your first court appearance after an arrest. This is when you’ll be formally charged and asked to enter a plea. Having an attorney at this stage can help you understand the charges against you and make informed decisions about how to move forward.

Throughout the Trial Process

From pre-trial motions to jury selection and from opening statements to cross-examination, having a criminal defense lawyer guiding you through each step of the trial process is invaluable.

Post-Conviction Proceedings

Even after a conviction, your right to an attorney continues. Whether you’re considering an appeal or facing a probation violation hearing, your lawyer will be there through it all.

How to Invoke Your Right to an Attorney

Invoking your right to an attorney is straightforward, but it’s important to do it right.

Proper Phrasing When Requesting Legal Counsel

Clarity is key. Simply say, “I want to speak to an attorney,” or “I’m invoking my right to counsel.” Avoid vague statements like “Maybe I should talk to a lawyer?” which might not be recognized as a clear invocation of your rights.

Dealing with Continued Questioning After Invoking Your Rights

If questioning continues after you’ve requested an attorney, remain silent or keep saying, “I want a lawyer” over and over until the questioning stops. In California, any statements obtained after a clear invocation of your right to counsel may be suppressed in court.

Documenting Your Request for an Attorney

If possible, make a mental note of when and how you requested an attorney. This information can be crucial if there’s a later dispute about whether you invoked your rights.

What is Due Process in a Criminal Case?

Due process is a constitutional guarantee that legal proceedings will be fair and that you’ll be given notice of the proceedings and an opportunity to be heard before the government acts to take away your life, liberty, or property. Your right to an attorney is key to due process.

An attorney serves as your advocate, ensuring that your rights are protected throughout the criminal justice process. They can challenge evidence, cross-examine witnesses, and make sure that you’re treated fairly by the court system.

Common Misconceptions About the Right to an Attorney

Let’s clear up some common misunderstandings about the right to an attorney:

“I Can’t Afford a Lawyer, So I Don’t Have the Right to One”

This is a dangerous misconception. In California, if you cannot afford an attorney in a criminal case, the court will appoint a public defender to represent you. Your right to counsel doesn’t depend on your ability to pay.

“Asking for a Lawyer Makes Me Look Guilty”

Exercising your constitutional rights is not an admission of guilt. It’s a smart, protective measure that even innocent individuals should consider.

“I Can Handle This on My Own”

The criminal justice system is complex, and the stakes are high. Even if you’re innocent, navigating this system without professional help can be risky. An attorney’s knowledge and experience can be invaluable in protecting your rights and freedom.

Is Attorney-Client Privilege Real? Can I Really Tell My Lawyer Anything?

When you talk to your lawyer, what you say stays between you two. This protection, called attorney-client privilege, is a key part of your right to an attorney and helps you speak freely with your lawyer without fear.

In California, attorney-client privilege is codified in Evidence Code Section 954. It means that, with few exceptions, your attorney cannot be compelled to disclose your communications, even in court.

However, while robust, the privilege isn’t absolute. It doesn’t cover communications about future crimes or frauds, for instance.

Tips for Working Effectively with Your Attorney

To get the most out of your legal representation:

1. Be honest and upfront with your attorney. The attorney-client privilege protects your communications.
2. Provide all relevant information, even if you think it might be harmful to your case.
3. Follow your attorney’s advice. They have your best interests in mind.

Remember, exercising your right to an attorney isn’t just about having someone speak for you in court. It’s about having an advocate who can guide you through a difficult and often intimidating process, protecting your rights every step of the way.

If you’re charged with a crime in California, don’t try to handle it alone or sit around hoping for the best. At The Nieves Law Firm, we know how to help. Contact us today so that we can get to work on your case right away. Your future may depend on it.