Everything You Need to Know About Your Right to Counsel

July 1, 2021 Criminal Defense

right to remain silent

Most people are familiar with the general right to counsel. However, there are a lot of nuances and exceptions within this right that are incredibly important to know. The right to counsel is housed in two different constitutional amendments. The Fifth Amendment gives individuals the right to counsel during questioning. For more information on the Fifth Amendment, please visit our Fifth Amendment blog post here. The “big” right to counsel amendment comes from the Sixth Amendment, which states that an accused person has a right to the assistance of counsel in preparing their defense during all criminal prosecutions.[1] This principle has become a fundamental right and applied to the states through the Due Process Clause of the Fourteenth Amendment.[2] While this seems straightforward, we can break down this right to see the subtle distinctions.

History of the Right to Counsel

The right to counsel did not always apply to state defendants. Supreme Court case Betts v. Brady stated that the right to counsel did not equal the right to a fair trial, and there must be a special circumstance present to appoint counsel for someone who could not retain counsel themselves.[3] Then, Gideon v. Wainwright overruled Betts and stated that the right to counsel must apply to states and gave the right to counsel to indigent defendants in felony trials.[4] Over the next several decades, the Supreme Court has extended the principles enumerated in Gideon to any criminal case in which a defendant could lose their liberty.[5] This includes direct appeals, juvenile delinquency proceedings, misdemeanors, and misdemeanors with suspended sentences.[6]

Who Does the Right to Counsel Apply to?

This might seem obvious, but the right to counsel is personal to the defendant. Therefore, the defendant is the only one who can invoke their right to counsel. Even their attorney cannot invoke their right to counsel for them.

When Does the Right to Counsel Apply?

The right to counsel attaches at the earlier of[7]:

  1. The filing of charges, or
  2. The defendant’s initial appearance in court.

Additionally, the right to counsel is offense specific, meaning that it attaches only to crimes for which the charges have been filed or the appearance is in relation to. For example, if you or a loved one is charged with crime X, police can come and question you about crime Y without violating your Sixth Amendment right to counsel.

It also applies during any critical stage of the criminal proceeding, like any court appearance on the crime charged[8], any questioning[9] by uniformed officers or undercover agents on the crime charge, and pre-trial identification procedures[10] after charges have been filed (excluding photo arrays).

In What Kinds of Cases Does the Accused Have the Right to Court-Appointed Counsel?

  • Felony cases[11]
  • Misdemeanor cases in which a jail sentence is imposed, whether that be active or suspended[12]
  • Direct Appeals[13]
  • Juvenile Delinquency[14]

Can the Right to Counsel Be Waived[15]?

The right to counsel can be waived by the defendant is the waiver is voluntary, knowing, and intelligent. This cannot occur if the defendant is in a secret or covert interrogation with an undercover officer since the defendant would not know that they are an officer and, therefore, cannot make a knowing waiver. To determine whether a waiver was voluntary, courts look at whether any coercive or aggressive measures were brought in to overbear the will of the defendant. To determine whether a waiver was knowing, courts look at whether the defendant was advised of their right to counsel. To determine whether a waiver was intelligently made, the courts examine whether the defendant understood their rights and what a waiver would entail. The government must prove that this waiver was voluntary, knowing, and intelligent by a preponderance of the evidence.

The Right to Effective Assistance of Counsel

Along with the right to appointed counsel if the accused cannot afford one themselves, the Sixth Amendment also guarantees criminal defendants the right to adequate and effective counsel.[16] The effectiveness of counsel is measured by the Strickland test which has two parts:

  1. Deficiency – Did the performance of the attorney fall below the bounds of objective reasonableness under the prevailing standards of professionalism?
  2. Prejudice – Did the performance of the attorney affect the result so much that it would have been different if effective assistance had been given?

When the conduct of counsel falls below the objective standards of effectiveness and reasonableness, courts will find that the defendant was denied their right to effective assistance of counsel.

What Happens if My Right to Counsel is Violated?

For statements made after a criminal defendant has invoked their right to counsel, the Sixth Amendment prohibits the use of any statements that have been deliberately elicited from a defendant once the right attaches if the defendant has not made a valid waiver. Deliberate elicitation consists of active inducement of statements from the defendants by a government agent or informant[17], or the deliberate construction of a situation meant to induce the defendant to make an incriminating statement. In the latter situation, the inducement must be something other than questioning.[18] If statements are made in violation of the right to counsel, they cannot be used against the speaker in a criminal trial during the government’s case-in-chief, but they can be used to cross-examine the defendant if they choose to take the stand for impeachment purposes.

Comparing the Sixth Amendment Right to Counsel with the Fifth Amendment and Miranda


6th Amendment

5th Amendment and Miranda

Is this right offense specific?



When does this right apply?

At all critical stages of criminal proceedings

Only during custodial interrogations

When does this right attach?

Either at the time charges are filed or when initial appearance occurs

Only if the defendant unequivocally communicates a desire for counsel while in custody

Does this right apply to the use of an undercover agent?



Criminal Defense Attorney near Me

 As you can see above, the right to counsel does not attach to every proceeding or every criminal defendant. If counsel cannot be appointed , it is critical to retain an informed and zealous attorney who will protect your rights and advocate on your behalf. Contact a Tallahassee criminal defense lawyer as soon as possible to ensure you or a loved one are afforded effective and aggressive counsel. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have decades of experience defending Floridians against criminal charges. Call a defense attorney today at (850) 681-7777 or send an online message to discuss your options during an open and free consultation with an attorney in our legal team.

This article was written by Gabi D’Esposito

gabi d'esposito pumphrey law









[1] U.S. Const. amend. VI.

[2] U.S. Const. amend. XIV.

[3] Betts v. Brady, 316 U.S. 455 (1942).

[4] Gideon v. Wainwright, 372 U.S. 335 (1963).

[5] Sixth Amendment Facts & Resources, The Sixth Amendment Center, available at: https://sixthamendment.org/the-right-to-counsel/.

[6] Id.

[7] Rothgery v. Gillespie County, 544 U.S. 191 (2008).

[8] Coleman v. Alabama, 399 U.S. 1 (1970).

[9] Massiah v. United States, 377 U.S. 201 (1964).

[10] United States v. Wade, 388 U.S. 218 (1967).

[11] Gideon, 372 U.S. 335.

[12] Argersinger v. Hamlin, 407 U.S. 25 (1972); Alabama v, Shelton, 533 U.S. 654 (2002); Scott v. Illinois, 440 U.S. 367 (1979).

[13] Douglas v. California, 372 U.S. 353 (1963); Halbert v. Michigan, 545 U.S. 605 (2005).

[14] In Re Gault, 387 U.S. 1 (1967).

[15] Montejo v. Louisiana, 556 U.S. 778 (2009).

[16] Strickland v. Washington, 466 U.S. 668 (1984).

[17] Brewer v. Williams, 430 U.S. 387 (1977).

[18] Fellers v. United States, 540 U.S. 519 (2004).

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