Sunday, August 9, 2015

I Want To Speak to My Lawyer: Right To Counsel Explained



Recently, the Washington State Supreme Court, in State v. Fedorov, affirmed a conviction for driving under the influence of alcohol where a police officer remained in a room while a defendant was a on a telephone call with a lawyer before consenting to a breath test. The Court held that the rule-based right to counsel under CrR 3.1 does not require absolute privacy for conversations with an attorney, and instead only requires an opportunity to contact an attorney.  

So what is this right to counsel rule that a criminal defendant has and where does it come from?
A criminal defendant's right to an attorney is found in the Sixth Amendment to the U.S. Constitution, which requires the "assistance of counsel" for the accused in all criminal prosecutions. This means that a defendant has a constitutional right to be represented by, or have access to an attorney during all criminal proceedings, from the time an individual is arrested, through a jury trial. In certain scenarios, this right can go beyond a jury trial and attach through the first appeal upon a conviction. It also means that if the defendant cannot afford an attorney, in almost all instances the government will appoint one to handle the case, at no cost to the defendant.

The defense attorney's role is of the most importance in almost every criminal case. The specific duties of an attorney vary depending on the nature of the charges and the case, but there are several key responsibilities of all defense attorneys regardless of the charge. Firstly, a defense attorney is responsible for advising the defendant of their rights and explaining the several different stages of a criminal proceeding. Secondly, the attorney must ensure the defendant’s constitutional rights were not violated during their contact with law enforcement and during all court proceedings. Furthermore, the defense attorney has a duty to effectively investigate the facts and analyze all of the evidence presented by the government. From the arraignment to the sentencing, the defense attorney is responsible for cross examining the government witnesses, objecting to improper questions and evidence and present any legal defenses that may exist. Lastly, the defense attorney is responsible to negotiate a plea bargain with the government or city prosecutor on the defendant’s behalf. Once a plea offer is made, it is the attorney’s responsibility to relay such a deal to the defendant, and then advise whether it is best to accept the deal, or proceed to trial. Ultimately, whether a case proceeds to trial is solely the defendant’s decision to make, and his or her constitution right. 

Courts have interpreted the Sixth Amendment right to counsel as guaranteeing the "effective assistance of counsel” to criminal defendants. It doesn't matter whether the attorney is hired by the defendant or appointed by the government. However, questionable strategic choices made by an attorney do not usually cause a conviction to be thrown out, unless it is clear that the attorney's incompetence affected the outcome of the case.

If you or a loved one is in a bind as a result of a criminal charge, immediately contact a Seattle Criminal Attorney. A Criminal lawyer is not going to judge you, and understands that everyone makes mistakes. Hiring a Seattle Criminal Lawyer to help can – at a minimum – reduce penalties, and can help direct people on how to best deal with their criminal charge, and many times even get them dismissed. So it should go without saying that someone cited for a misdemeanor or felony should hire a qualified Seattle Criminal Lawyer as soon as possible. Criminal charges can cause havoc on a person’s personal and professional life. Anyone charged with a crime in Washington State should immediately seek the assistance of a seasoned Seattle Criminal Lawyer.

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