Invoking the Right to Counsel

The trend has been to reduce the applicability of the right to counsel because of the significant burdens on law enforcement the right creates. To prevent the use of the right to frivolously impede investigations the current view is that invocation of the right to counsel must be unequivocal and timely.

The burden is on the accused to invoke their right to counsel. The accused should, under Miranda, be told that they have the right to an attorney, but law enforcement officers don't need to ask whether they want one or any other clarifying questions.

When to Invoke the Right to Counsel

As a general matter people are entitled to counsel from the time of arraignment until the end of a trial. The right begins before the trial itself because courts have acknowledged that early events are critical to the criminal proceeding as a whole.

Individuals who are subjected to a custodial interrogation are also entitled to counsel. Evidence gathered in violation of the rights where they have been properly invoked would be excluded from trial. However, despite otherwise being excluded the statements could still be introduced to impeach the defendant's testimony.

Court-Appointed Attorneys

Although the specifics can vary greatly between jurisdictions the Supreme Court has indicated that at minimum an indigent individual charged with a crime that could result in imprisonment is entitled to have counsel provided for them.

There are some exceptions to this rule. The mentally ill, developmentally disabled, children, and other cases relating to child custody and child protection typically qualify one for the assistance of a court-appointed attorney.

Public defenders and court-appointed counsel often manage a very large caseload and as a result may not meet with their clients frequently or far in advance of court events. However, their extensive practice experience and close relationships in the courtrooms where they practice mean that they often have insights that private attorneys do not.

Post-Conviction

The right to counsel does not apply to certain post-conviction proceedings. In general, the defendant is entitled to counsel at sentencing, at the first appeal of right (in some states), and where a review of the effectiveness of defense counsel is necessary.

A defendant is typically not entitled to the assistance of counsel for discretionary appeals and petitions, in filing a motion for retrial, at habeas corpus proceedings, parole hearings, clemency, pardon, commutation, or expungement proceedings.

Local rules may vary and, in any event, although a defendant may not be entitled to an attorney provided by the state; they are still entitled to the assistance of an attorney they have retained privately.