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So, you are being questioned by the police? Do you need an attorney? Do you have the right to an attorney? What should you do?

The right to an attorney is controlled by the Fifth and Sixth Amendments to the Constitution of the United States.

The Fifth Amendment states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

Under the Fifth Amendment, every Defendant has the right to an attorney when he or she is:

  • In custody; and
  • Interrogated

(See Miranda v. Arizona, 384 U.S. 436 (1966).)

Under the Sixth Amendment, every Defendant has the right to an attorney at every “critical stage of the proceedings,” which begins after:

  • The filing of an indictment or information
  • First appearance, and
  • As soon as feasible after custodial restraint

It is very important that every person understands when they have the right to an attorney.  Many citizens have little or no experience in communicating with law enforcement and sometimes unknowingly incriminate themselves by answering questions without the benefit of legal counsel. In addition, police officers receive extensive training in interrogation. You should have the advice of someone equally experienced with police interrogation techniques.

Here are some common situations where you or your friend or family member might need an attorney:

  1. You receive a call from police — You do not have the right to an attorney. Unless you have been charged with a crime, you do not have a right to an attorney under the Sixth Amendment. You also do not have the right to an attorney under the Fifth Amendment because you are not in custody. However, you always have the right to remain silent and should never discuss the facts of a pending criminal investigation without speaking to an attorney. In other words, even though you do not have the Constitutional right to an attorney at this point, you should contact an attorney for a consultation.
  1. You are questioned by police in public or in your home — You might have the right to an attorney. You more than likely do not have a right to an attorney under the Sixth Amendment unless you have been charged. Whether you have the right to an attorney under the Fifth Amendment depends on whether you are in custody and you are being interrogated. Courts determine someone is in custody if a reasonable person would not feel free to leave. Pay attention to the circumstances around you. Is the police officer using a forceful tone?  Is he ordering you to do anything? Is the officer’s weapon drawn? If so, then you are probably in custody and have the right to request an attorney. If you ask for an attorney, the officer must stop questioning you immediately.
  1. You are arrested and questioned at the police department — You have the right to an attorney. You are in custody and being questioned, as required by the Fifth Amendment. Under the Sixth Amendment, you arguably have the right to an attorney as soon as feasible after custodial constraint. Therefore, if you ask for an attorney, all questioning must stop.
  1. Your friend or family member is being questioned at the police department — He or she has the right to an attorney but it must be requested. If the person in custody does not request an attorney, you must provide one for him or her. In a recent case, the Florida Supreme Court ruled that when a retained attorney arrives at the police department on behalf of the person in custody, the Florida Constitution mandates that police notify the individual in custody of the attorney’s presence and purpose. (See McAdams v. State, 137 So. 3d 401(Fla. 2016). ) So, if you have a friend or family member being questioned at the police department, the only way for you to stop the questioning is to hire an attorney to go to the police department to speak to the new client.
  1. You, your friend, or family member is being questioned in court — You always have the right to an attorney for every “critical stage” of the proceedings in court. If you cannot afford an attorney, one can be appointed to represent you.

Hubbs Law defends clients throughout the Miami area on a variety of criminal charges, including drug charges, domestic violence and other violent crimes, DUI (driving under the influence), property crimes, and weapons and firearms charges. We represent clients throughout Miami-Dade County, including Miami, South Miami, Miami Beach, Kendall, Homestead, Coral Gables, Doral, Cutler Bay, Fontainebleu, Kendale Lakes, Tamiami, and The Hammocks. If you are about to be questioned by the police in the investigation of a crime, contact Hubbs Law today speak to our experienced attorney.

This article was written by E.J. Hubbs on Wednesday, June 1, 2016.