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Right to Counsel – 6th Amendment

The 6th Amendment includes, among other rights, a defendant’s right to counsel in a criminal proceeding.  There are several important aspects to the right to counsel of which criminal defendants should be aware.

Under federal and New Mexico law, any person appearing in court for an offense that has a possible sentence of imprisonment is entitled to an attorney.  First, the 6th amendment guarantees all criminal defendants the right to retain their own counsel.  For indigent defendants who cannot afford a lawyer, the 6th Amendment guarantees that the court will appoint an attorney.  

The right to an attorney is triggered once criminal proceedings have begun against an individual.  This does not necessarily mean arrest, and must be in the form of a formal charge, preliminary hearing, information, indictment, or arraignment. 

Besides having an attorney’s assistance at trial, the United States Supreme Court has held that a person is entitled to the assistance of counsel during post arrest interrogations, line-ups, other identification procedures (such as one-person show-ups), preliminary hearings, arraignments, and plea negotiations

After trial or conviction, an individual is guaranteed the right to counsel at sentencing proceedings and appeals.  In some cases, the right to an attorney may extend to parole and probation proceedings.     

The right to counsel can be waived.  However, a waiver must be made “knowingly, voluntarily, and intelligently.”  Under federal law, a person does not need to expressly waive his or her right to an attorney, and waiver can be inferred from a suspect’s conduct.  This means you should stop talking.

If you have been charged with a crime or are under investigation, it is rarely if ever a good idea to speak with law enforcement without an attorney present.  At the very least, you should consult with a criminal defense attorney before making any statements.  And until you have spoken to an attorney, know that you have a right to an attorney.  You also have a right to remain silent so exercise that right!

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