Right to Counsel

During the colonial period and the early years of the Republic the practice in the United States was varied with respect to providing counsel to suspects in criminal cases. The practice varied from the English method, where no counsel was provided to defendants of felony charges, but counsel was made available for defendants of misdemeanor charges. Rules in a few states allowed for the appointment of counsel where defendants could not afford to retain a lawyer. The Sixth Amendment to the U.S. Constitution states: “in all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense.” At the time the Sixth Amendment was ratified, Congress enacted two laws that appeared to indicate an understanding that the Sixth Amendment guarantee was limited: counsel would not be denied to those who wished for and could afford a lawyer. Much later—in 1930s—the Supreme Court began to expand the clause to its present scope.

Police officers ask questions of victims, witnesses, and suspects. If individuals feel that they are suspects in a criminal investigation or even that they could later be considered a suspect, they should speak with a lawyer before they speak with law enforcement officers. What they say to their lawyer is confidential and cannot be used against them. However, what they say to the police can be used against them, even if there is no recorded or written record of that conversation.

Individuals can always inform the police officer that they wish to speak with a lawyer before they answer any questions. If they are in custody (have been arrested or otherwise detained), the police must stop their questioning and they will be given an opportunity to speak with a lawyer. The police may return and begin to ask them questions again after a reasonable amount of time. If they have not yet spoken with a lawyer when the police return to question them, they may continue to refuse to answer any questions until they have obtained legal assistance.


Inside Right to Counsel