Your Right To An Attorney

The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, an accused person is guaranteed the right to "assistance of counsel." Over the years, the courts have interpreted this amendment to require the police to specifically advise defendants of this important right. The right to counsel is an incredibly important right. Since the average person is unfamiliar with our legal system, the law, criminal procedure and the rules of evidence, the right to the assistance of counsel is essential to the proper administration of justice. An unrepresented person is at an enormous disadvantage. Imagine yourself playing a game of high-stakes poker without knowing the rules. It is our personal opinion that no one should ever attempt to represent himself or herself in a criminal case. Never represent yourself!

When You Are Handcuffed And Arrested

Unfortunately, in the real world, most people first learn of their right to an attorney while being handcuffed and transported to the police station. In the case of a DUI, many times people are advised of important rights after an officer has already concluded that the arrestee's mental faculties are impaired. An "advice of rights" unfortunately, is sometimes given after a chase or a struggle, or at a time and in a manner that makes it difficult to understand. For example, being advised of your rights after being tasered or maced, or when you are drunk, may not be legally adequate.

Many times, people are not formally advised of the right to counsel until they come to court the next day, or in some instances at their arraignment some weeks after their arrest. In many cases, having the assistance of an experienced lawyer early in the prosecution process can make an enormous difference in the outcome of your case. It can in some instances make a difference in whether or not your case goes forward. It is also important to hire an attorney familiar with the local rules, judges, prosecutors and law enforcement. Just like in fishing, often, a local guide makes the difference between success and failure.

Prosecutors Decide Whether Or Not To Move Your Case Forward

When a police officer makes an arrest, generally it is because the officer has formed an opinion that he or she believes probable cause exists that a specific person has committed a particular crime. The actual decision as to whether or not to go forward with the prosecution, however, is not made by the officer. That decision is made by a prosecutor, often referred to as the district attorney or sate attorney.

Many times the police reports are very one-sided and fail to disclose facts or witnesses that tend to show that the person is not guilty. For example, in domestic violence cases, the person arrested may not have been the aggressor or may have acted solely in self-defense. In drug cases, the drugs may not have been in the person's possession, or may have been placed on the person, or in a vehicle or car, by somebody else. The police may have made an unlawful stop or an illegal search, or the police may have grossly exaggerated the truth or simply lied. Unfortunately, in the real world, police officers sometimes exaggerate, or give a very one-sided view of the facts. These are all matters that the prosecutor may not be aware of when the prosecutor makes a decision as to whether or not to go forward with the case.

Immediate Legal Help Can Lead To Dropped Charges

If a defense lawyer is hired immediately following an arrest, in some instances, defense counsel may actually convince the prosecutor to drop the charge or to file a lesser charge. On the other hand, if after an arrest, a person simply waits for an arraignment date, a valuable opportunity may be missed to have their defense attorney intervene and raise these critical issues during the case filing decision process. There is a window of opportunity between the date of arrest and the filing of the charge and, in some instances, timely intervention by a good defense attorney can make an enormous difference.

The right to counsel in a criminal case is so important that if a person is poor, or without funds, and has no way of hiring an attorney, the court will appoint an attorney. Although attorneys must meet minimum requirements to practice law, just like doctors, their qualifications and levels of experience may vary greatly. In the criminal justice system, defendants are generally represented by either private attorneys, public defenders, or, in some rare instances, court-appointed attorneys.

How To Choose A Lawyer

Hiring a lawyer in many respects is like going to the doctor of your choice. If you hire your own lawyer, you can select the lawyer you feel is most qualified and experienced. You can interview various attorneys and then pick the one that you want to stand beside you in court. If the court appoints the public defender's office or another court-appointed lawyer, you have no input and really no choice in who is representing you. The public defender appointed for you may be highly qualified and experienced, or someone fresh out of law school and recently admitted to the Bar, with little or no courtroom or trial experience.

In order to qualify for a public defender, the court must make inquiry to determine if the accused person is financially unable to hire his or her own attorney. An arrest, for most people, is not a planned event. Most people do not have money set aside to hire a defense lawyer and, for many people, hiring an attorney is a financial hardship. In some respects, it is similar to many other financial emergencies, such as a medical emergency or a car breakdown, or a hurricane. Just like most other emergencies, many people often have to raise money by contacting friends, relatives or employers.

For many people, it is necessary to borrow money or charge the attorney's fee on a credit card. Unfortunately, there are, however, some people who simply cannot raise funds from any source. Just as some people have no choice other than to go to a public health clinic, these individuals have no choice other than to use the services of the public defender.

The Public Defender's Resources Are Limited

Unfortunately, the public defender's enormous caseload in many instances limits the amount of time that can be devoted to a particular case. Competent private defense attorneys never take more cases than they can competently and adequately handle. They have a choice. The public defender's office, on the other hand, has no choice. Just as sometimes the jails are overwhelmed and overcrowded, the public defender's caseload is also sometimes overwhelmed. Sadly, it has been my observation that often the public defender meets or sees his client for the first and only time in the courtroom or in the hallway minutes before entering a plea of guilty.

Many times, if a person is in jail, he or she may have no face-to-face contact with his or her public defender until after the arraignment date, some three or four weeks after the arrest. Unfortunately, communicating with the public defender by telephone is often made difficult by the public defender's caseload and daily court appearances and restrictions on phone usage at the jail.

Choosing a good lawyer may be one of the most important decisions you will ever make. If you have been arrested, you have already made one mistake. Don't make another by hiring a cheap or inexperienced lawyer. Would you want to buy the cheapest parachute or a bargain life jacket?