If you are accused of a crime, you have the right to be represented by an attorney. You may invoke that right during initial interrogation by the police, when the criminal prosecution officially starts, or when your attorney has already been retained for a related or unrelated matter.
When your freedom is on the line, timely and effective legal representation is crucial. Here are some things to know about exercising that right – and what to do if your right to counsel has been violated.
What is the right to counsel?
Both the U.S. Constitution and the New York State Constitution guarantee that you have the right to have a lawyer help you defend your case. If you cannot afford a lawyer, the state will bear the cost of a public defender.
The Sixth Amendment of the U.S. Constitution guarantees a number of rights for the accused facing criminal prosecution. Among those rights is the assistance of counsel for his defense. Originally this right only applied to federal cases involving felonies. It has been expanded to include criminal prosecution in state courts, including those involving misdemeanors.
The 1963 U.S. Supreme Court decision in Gideon v. Wainwright was a landmark because it recognized that when a defendant cannot afford an attorney, the Sixth Amendment requires that one be provided for him.
The right to counsel in New York
New York affords greater protections than the federal framework. For starters, in New York, the right to counsel applies in nearly all criminal matters and even some non-criminal matters, like eviction.
Next, the right to counsel is referred to as “indelible.” Under federal law, it is possible to waive your right to counsel at any time, but in NY, once you are represented by counsel, the police may not question you outside your lawyer’s presence. What makes this “indelible” is that you cannot waive this protection without your lawyer present (and a competent lawyer will not allow you to waive it).
When does the right to counsel apply?
The right to an attorney arises in several settings:
- Request made while in custody – If you make a request for an attorney while you are in custody, the police may not question you until your attorney is present. In general, you are in police custody if you do not feel free to leave.
- Initiation of criminal prosecution – Once the police hand the case over to the prosecutor’s office, and it formally begins proceedings, you have the right to representation.
- Counsel under retainer – Once your attorney is involved, the police may not question you on the matter for which he was retained or any other matter, even if it is unrelated. If the police have reason to suspect you are represented by counsel, they must ask you whether you have an attorney.
The role of a defense attorney
The importance of a defense attorney cannot be understated. When your freedom – or even your life – is on the line, your attorney plays an important role in safeguarding your rights. Some of the ways your lawyer accomplishes this include:
- Informing you of your rights, providing advice, and helping you understand what happens at each step of the process
- Gathering evidence to present your strongest defense
- Acting as a watchdog for infringement upon your rights by police, prosecutors, and courts
- Informing you of best and worst-case scenarios and counseling you in decisions on a course of action
- Advocating for your best plea bargain
- Presenting your strongest case at trial if you do not opt to enter a plea
The right to counsel includes “effective assistance”
Judicial interpretation of the Sixth Amendment right to counsel has concluded that defendants are entitled to more than a warm body in the chair next to them. Rather, defendants are entitled to the “effective assistance of counsel.”
Attorneys have a duty to meet standards of competence. Unfortunately, even smart and well-meaning attorneys who are appointed as public defenders can be so overwhelmed by their caseloads that they can make mistakes or resort to encouraging clients to settle for a plea bargain instead of fighting a case through. If a lawyer makes mistakes that call into question their competence, this may constitute grounds for appeal based on lack of effective assistance.
Speak with a Manhattan attorney
If your Constitutional right to counsel has been violated, speak with one of our New York City civil rights lawyers today. The attorneys at Friedman, Levy, Goldfarb & Green are here to stand up for those whose rights have been violated. Call today to schedule a free consultation.
