The Right to Legal Counsel

The Sixth Amendment of the United States Constitution gives someone the right to have a lawyer if he or she faces criminal charges.

State Constitutions

Some states specifically provide for the equivalent right to legal counsel in their state constitution. These legal protections generally provide this right for people facing felony charges. Some of these provide a broader scope of this right than the federal constitution provides.

Fourteenth Amendment

The Fourteenth Amendment to the United States effectively provides this right to individuals charged under state crimes. Even if there is not a specific right in the state constitution, individuals charged of state crimes have the right to seek legal counsel.

When the Right Attaches

It is also important to understand when this protection attaches. A criminal defendant has the right to legal counsel at every critical stage of a criminal proceeding. For federal charges, it attaches when the defendant is facing adversary judicial proceedings. Generally, the right attaches when a defendant is indicted, is scheduled for a preliminary hearing, has an information assigned against him or her or is arraigned.

A defendant must be facing actual charges of a crime in order for this right to attach. This right does not arise simply because the defendant is a suspect of a crime or is under investigation. Similarly, an arrest does not automatically trigger this right. However, a person who believes he or she is under investigation has the right to hire a lawyer.

If the right arises, the government cannot do anything to interfere with the defendant’s right to seek legal counsel. The right is afforded only in criminal cases, not in civil or administrative proceedings or in those proceedings associated with suspending a person’s driver’s license.

Court Appointed Lawyer

In order for a defendant to receive a court appointed lawyer, he or she must be considered indigent. This is determined by assessing whether the individual meets criteria established by the court when such criteria exist. Some states do not use a particular formula or income guideline and determine this on a case-by-case basis. In these states, courts look at the totality of the defendant’s financial circumstances, including his or her income, assets, debts and other financial obligations that affect his or her ability to pay for a lawyer.