Invoking Your Right to Counsel
It has happened. You have been arrested and are being interrogated by the police. What do you do? Should you say anything? Do you have to answer the questions asked by the police? How do you ask to speak to your lawyer?
Under the Fifth and Sixth Amendments of the United States Constitution, you have the right to have an attorney present at an interrogation conducted by police.
However, many people are not sure how they are supposed to invoke their right to counsel and end up saying the wrong thing, which enables the police to continue the interrogation without your attorney present.
What to Do if Arrested
If you are arrested for a crime of which you have been accused, law enforcement officials in every jurisdiction are required to read you your Miranda Rights. The Miranda Rights stem from the Fifth Amendment of the U.S. Constitution, and inform the accused of his right to remain silent and to invoke counsel.
It is very important to note that there are specific requirements in invoking your right to counsel. When you choose to invoke counsel, your request must be sufficiently clear so that an officer can understand your request. This means that you must say: “I need to speak to my attorney,” or “I want to speak to my attorney.” Statements like “maybe I should call an attorney,” or “I think I should speak to my attorney,” may not be treated as sufficiently clear and your request could fall by the wayside.
After Your Fifth Amendment Right is Invoked
Once you have clearly asked to speak to your attorney, all interrogation by police must cease. This Fifth Amendment right to counsel is not offense specific, which means that as soon as you have asked to speak to your attorney, the police are no longer allowed to speak to you about any crimes of which you may be suspected until your attorney is present.
It is also important to mention that if a friend or family member calls an attorney on your behalf without your knowledge, and that attorney shows up to speak to you, and you have not yet unequivocally asked to speak with an attorney, the police are not required under the Constitution to tell you that an attorney has arrived for you on your behalf.
The Differences Between Your Fifth and Sixth Amendment Right to Counsel
The Fifth Amendment right to counsel attaches as soon as you request to speak to your attorney when you are initially being interrogated by law enforcement. As soon as you ask to have your attorney present all questions from law enforcement officials must cease until your attorney arrives.
The Sixth Amendment right to counsel is an express constitutional guarantee and attaches when the defendant is formally charged, and not upon arrest. Once an attorney is appointed to a defendant, his Sixth Amendment right applies at all critical stages of prosecution that take place after the filing of formal charges, meaning that your attorney must be present for arraignment, probable cause hearings, and police interrogations.
Unlike the Fifth Amendment, which is not offense specific, the Sixth Amendment is offense specific. This means that the right only applies to crimes where the defendant is formally charged, and provides no protection for uncounseled interrogations for other uncharged criminal activities. Therefore, if you are charged with a crime and you have court appointed counsel, and the police wish to speak with you about another crime, you must invoke your Fifth Amendment right to counsel.
When to Call an Illinois Attorney
If you have been charged with a crime, or you have committed a crime and are concerned about police interrogation, you have very little time to protect your constitutional rights. The talented criminal law attorneys at Law Office of Glenn M. Sowa, LLC are available to help you with any questions or concerns that you have, and are able to help you through the entire criminal process. Contact Law Office of Glenn M. Sowa, LLC today to schedule a confidential interview.