When am I entitled to an Attorney?
Everyone is guaranteed a right to counsel, but there are some key things to keep in mind regarding your right to an attorney!
Fifth Amendment Right To Counsel:
The Fifth Amendment Right to counsel is probably the one you have heard the most about. Under the Fifth Amendment, any individual who is being taken into custody to be questioned by a government agent, has the right to be informed of their right to an attorney before the interrogation. In other words, you have the right to an attorney when you are taken into custody and questioned, and once you invoke this right, questioning must stop and may not resume until your attorney is present.
Keep in mind however, that this right does not apply if you have no idea that the individual questioning you, while not in custody, is an agent of the government (e.g. an Undercover Police Officer or Detective). Further, this right generally applies only to involuntary statements that are provided when you are “in custody.” Thus, if the encounter and questioning with law enforcement is voluntary and/or you are free to leave the encounter whenever you want, the Fifth Amendment right to counsel does not apply.
In contrast to the Fifth Amendment right to an attorney, the Sixth Amendment right to an attorney applies to “offense-specific” situations, meaning you’re only entitled to have your attorney present at any proceedings or interrogations that are related to the specific offense.
Sixth Amendment Right to Counsel:
The Sixth Amendment Right to Counsel is a little bit more nuanced and trickier! Generally, under the Sixth Amendment, you are entitled to an attorney once criminal proceedings begin, but not before. Consequently, simply because you have been arrested, does not mean that criminal proceedings have begun; you must be formally charged for this right to attach. Once this right does attach, however, you are entitled to have your attorney present at all “critical stages” of a criminal proceeding which includes but is not limited to:
Arraignments
Post Indictment line ups
Post Indictment questioning
Negotiating a plea deal or entering a guilty plea
When facing a situation where you're being questioned by the police you should have a criminal defense lawyer present; doing so will ensure that you're able to fully exercise your rights in the face of a complex legal system. An experienced attorney may be able to help avoid charges, or get charges dismissed or reduced (with lower penalties). The law office of Petrovich and Walsh can assist. Centrally located in Fairfax, our knowledgeable staff serves all of Northern Virginia. With more than 25 years of experience, we are here to help you or a loved one who is facing criminal charges in the Commonwealth of Virginia.
