Do I have the right to be provided an attorney when I'm being detained, or only under arrest?
As in, "if you can't afford a lawyer, one will be provided for you".
Posted Jul 7, 2013, 1:29 AM UTC
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"Detained" is supposed to be short.... say 20 minutes. Arrested is longer and yes, you will eventually be provided an attorney by the judge if you are found to be destitute. Funny thing is, many folks make too much to get a court-appointed attorney but not enough to really pay for a vigorous defense.
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vigorousany defense
It's ridiculous how little you can make and not qualify, actually. Even if you demonstrate that the entirety of your income goes to a very low-rent living space, food, and bus far to make it to your shitty job, you're screwed.
We don't have a justice system, we have a 'legal' system.
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Actually, it takes a lot to afford counsel. The idea that most people make too much is a common misconception, and is furthered by the courts themselves so they don't have to deal with it. Don't listen to court clerks, they aren't qualified to give legal advice.
In Forma Pauperis - file this and you will be provided with the Assistance of Counsel for your defence as protected by the Constitution of this country and your state.
It's a short notice that says you are poor and don't have enough money to hire a lawyer. It takes the burden of proof of "poorness" out of your hands and places it upon the court. The court is not looking to have a civil suit on it's hands for improperly judging your "poorness" and so will go along with it. Besides the fact that you have a right to assistance of counsel.
BONUS: this also means you are too poor to pay any and all fines and court costs. Therefore even if you lose your case, you state that you don't have any money to pay the court and because we don't have debtors prisons here in the good ole US of A they discharge the debt and set you free. You get a guilty verdict on your record but that's it.
DISCLAIMER: There is a little research you need to do to make sure you fill out the paperwork correctly, file it timely and properly, and you may have to back up a little of it depending on your state laws, but for the most part it works just fine and I've never heard of it not working in any state in the union.
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Fantastic advice! I really appreciate it!
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Your right to remain silent is always present. There are 3 stages.
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If a cop has just initiated a citizen contact it means their right to question you is no more or less than any stranger on the street asking you the time. You can just walk away and don't even have to acknowledge their presents.
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Detainment. Detainment is not an arrest, but might involve being handcuffed. This is based on "reasonable suspicion" and is a lower bar than "probable cause". Even if you live in a stop and identify state reasonable suspicion must exist before you are required to identify yourself, and even then only a verbal name and birth date. You are NOT required to answer any other questions. The purpose of a detainment is to hold you long enough for a quick investigation to determine whether probable cause can be established to arrest you or an associate.
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Arrest. This occurs under "probable cause" that a specified crime has been committed.
You have a right to have a lawyer present at all times, but it's not reasonable to expect a lawyer to be present at your side during a random ad hoc detainment. Retaining your right to a lawyer in such circumstances dictates only that the police is not allowed to question you at this time, period. Hence there is no need of the state to provide you with a lawyer at this time.
The very logic of the OP question implies a lack of understanding of the purpose of a lawyer, and the divisions of law enforcement, stated at the beginning of every episode of Law and Order. The lawyers job is to represent you in the court proceedings. Your 5th amendment rights is your proxy for a lawyer prior to any court proceedings. The proceedings may include questioning by the police, but if and only if you retained your 5th amendment rights the police may not begin these proceedings (questioning) without your lawyer present.
So, as you can see, your 5th amendment rights is tantamount to a stand in for your lawyer when your lawyer is not present. Hence the claim that if you have nothing to hide there's no reason to take the 5th is the same as claiming you have no need of a lawyer.
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I think most of the answers here are on the mark, but I would note that the line between detainment and arrest isn't always clear, and you may not always be able to tell when you transition from one into the other.
IANAL.
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IANAL either, just interested. As to your point, it's also why if I was in a situation where I felt like I couldn't leave (detained), I'd just assert all my rights "do not consent to a search, want a lawyer, and I'm asserting my fifth". Figured that would get the message across to the person I'm dealing with and not have to worry about the distinction b/w detained and arrested or just stopped. Then of course comply with orders so as not to get tazed and or shot
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You have a right to have an attorney present once the adversarial judicial proceedings have begun "by way of formal charge, preliminary hearing, indictment, information or arraignment,". In other words, once you're under arrest, you have a right to have an attorney present during questioning and certain other key stages of the process.
However, this is a right that must unambiguously be asserted as per each offense that you are being questioned on, but once you do, they have to stop asking questions about it. So if you are detained for a) possession of marijuana, b) robbery, and c) public nudity (wild night), then as they ask about the robbery you must say "I want to speak to an attorney". They must stop asking you about the robbery, but may start asking about the marijuana, so then you need to again ask for an attorney.
The unambiguous part, that means asking for your parole officer or "should I have an attorney here... maybe?..." is not sufficient to provide you with your sixth amendment protection. Just say "I want an attorney now". Whether they provide an attorney for you will be contingent on how much you make. I believe that may be decided by a magistrate or a judge, but I'm not sure about that.