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Introduction
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Attorney
In a criminal setting, it is ordinarily known that the accused has a legal right to be represented by an attorney. However, it is probably not as well known that the right to an attorney is tiny and only exists during sure phases of a criminal proceeding called "critical stages". The normal right to an attorney is called the "Right to Counsel" and is in case,granted for in the 6th Amendment of the United States Constitution. "Counsel" simply refers to a lawyer or lawyers conducting a case in a court of law. The 6th Amendment right to counsel should not be confused with the right to an attorney in case,granted in the 5th Amendment. The 5th Amendment deals with Miranda Warnings, which are popularized in the phrases recited by policemen upon arresting a suspect: "You have the right to remain silent...Anything you say can and will be used against you in a court of law...You have the right to an attorney". The 5th Amendment right applies to police custodial interrogations, while the 6th Amendment right deals with proceedings after formal charges have been filed by the state. The 6th Amendment right to counsel is very broad and includes such matters as effectiveness of counsel and representing one's self. This description focuses in general on the differences between 5th and 6th amendment rights, as well as the needful stages during which the right to counsel may be invoked. Differences between 5th Amendment and 6th Amendment Rights As mentioned above, the Constitution provides for the right to an attorney in both the 5th Amendment and the 6th Amendment. There are needful differences between the two. 5th Amendment rights Under the 5th Amendment, the right to an attorney applies only during a custodial interrogation by the police. A custodial interrogation means that the man is being held in custody by the police for the purposes of interrogation. An example of a custodial interrogation is when a man is detained at the police hub for investigation of a crime. The purpose of the 5th Amendment right is to allow the calculate to consult with an attorney even though formal charges have not been brought, and no arrest has yet been made. (Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]). During a custodial interrogation, the police are required to review the Miranda Warnings mentioned above in order to fill in the calculate that they are in fact being held in custody for an interrogation. Once the Miranda warnings are read or recited to the suspect, the man may decline to speak by stating that they wish to have a lawyer present. This is called "invoking the 5th Amendment right to an attorney". Once the man invokes the 5th Amendment right to an attorney, the police cannot quiz, them any added until a lawyer is present. 6th Amendment Rights On the other hand, the 6th Amendment "right to counsel" applies after the calculate has already been booked, and formal charges have already been issued against the accused. The right to counsel "attaches" when formal criminal adversarial proceedings have been initiated (begun), although it only may be invoked at sure points of the proceedings called "critical stages". (Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 [1985]). The purpose of the 6th Amendment right to counsel is to ensure that the accused is adequately protected by a lawyer in an adversarial setting. The key word to remember is "adversarial", meaning that the accused is being confronted by whether the opposing party or a state official such as a prosecutor or a judge. Another major dissimilarity between the two possession is that the 5th Amendment right is not offense-specific, while the 6th Amendment right is offense-specific. This means that, during a custodial interrogation, if the calculate invokes the Miranda right, the police may not quiz, them at all, even about dissimilar crimes. Under the 6th Amendment right, state officials may not quiz, them about the crime they are being charged for, but they can quiz, them about other crimes. Critical Stages- Initiation of Criminal Proceedings The consummate Court case United States v. Hidalgo, 7 F.3d 1566 [11th Cir. 1993] sets forth a basic definition of a needful stage: "A needful stage of prosecution includes every instance in which the advice of counsel is needful to ensure a defendant's right to a fair trial or in which the absence of counsel might impair the making ready or presentation of a defense" (United States v. Hidalgo, 7 F.3d 1566 [11th Cir. 1993]). The first adversarial setting that an accused typically encounters is the initiation (beginning) of formal criminal proceedings. The case Brewer v. Williams, 430 U.S. 387 names the following situations as instances that inaugurate criminal proceedings.
Appearance in front of a judge for the purpose of issuing formal charges
Preliminary hearings
Indictments (this is where formal charges are brought against the accused in front of a grand jury)
Information (this is like an indictment only it is written and presented by a communal official rather than a grand jury)
Arraignments
These phases of trial are carefully to be "critical stages", and the accused undoubtedly has the right to counsel during these stages. Also, it is at this point that the right to counsel is said to "attach", meaning that the accused can now claim their right to counsel. Take note that the first appearance in court wherein the judge simply informs the accused of their charges and possession is not a needful stage. Other phases of trial that courts have identified as needful stages are: pretrial hearings related to bail, the suppression of evidence, or the viability of the prosecution's case(Smith v. Lockhart, 923 F.2d 1314 [8th Cir. 1991]). "Noncritical stages"-phases of trial during which the accused does not have the right to counsel There are any phases of trial proceedings that are not carefully to be needful stages. Courts refer to these as "noncritical stages", and the accused does not have the right to have counsel present during them. This is because they are carefully to be first matters that are unassociated with the more adversarial phases of prosecution. Examples of noncritical stages are: · Fingerprint taking and analysis
· Investigative lineups
· Photographic identifications
· Taking samples of blood, clothing, hair, handwriting, or voice samples
· Hearings to conclude the existence of probable cause
· Recesses during defendant's testimony
· Proceedings about parole and probation issues
· Post-conviction proceedings Again, the basic rationale is that such procedures are more menagerial and lack the confrontational aspect that requires a lawyer. In other words, absence of an attorney at noncritical stages is not likely to impair the defendant's right to fair trial or presentation of a defense. Finally, in misdemeanor cases, the right to counsel is only granted if imprisonment has been imposed on the person. Thus, if the punishment for a misdemeanor crime involves only a fine, then the right to counsel does not attach. The right to counsel is available in all felony cases. Remedy for violation of Right to Counsel Denial of counsel during a needful stage has monumental effects on the outcome of the case. This may happen if the accused requests a lawyer during a needful stage, but the court denies or ignores their request. The consummate Court has held that such denials are an unconstitutional deprivation of a fair trial. (United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 [1984]).The remedy for denial of counsel is that the conviction must be reversed. Waiver/replacement of counsel Defendants also have a 6th Amendment right to decline representation by a lawyer and record themselves in court. Self-representation is also known as pro se representation. The court is required to allow pro se representation, but only if the defendant makes a knowing and attractive waiver of the right to counsel. Also, the court must fill in the man of the potential disadvantages of pro se representation. The defendant must understand that pro se representation involves not only persuasion, but includes knowledge of legal theories and allowable court procedures. Conclusion Of course, all stages of a criminal trial are leading in determining the outcome of the case. However, courts have decided that some phases of trial are "critical", in the legal sense that they want the proximity of a lawyer. It is leading to remember that while the right to counsel is a guarantee, it only applies to needful stages wherein the defendant faces an adversarial setting and are at risk of an unfair trial if unrepresented. If you feel that you have been denied the right to counsel during a needful stage of a trial, you may have added legal resource for your case.
I hope you have new knowledge about Attorney. Where you possibly can put to easy use in your everyday life. And just remember, your reaction is passed about Attorney. Read more.. Right to Counsel - Sixth Amendment and necessary Stages.
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