When Does The Right To Counsel Attach?



An individual's right to counsel indelibly connects to a matter upon any one of three setting off events (1) entry or retaining of counsel on the matter; (2) commencement of a criminal prosecution of the matter; (3) request for counsel or invocation of the right to counsel worrying the matter while held in custody.

When the right to counsel indelibly attaches based on one of the three guidelines noted above, any declaration deliberately elicited from that person by the police without counsel present is subject to suppression and any consent to search acquired without counsel present is invalid. In New york city the right to counsel indelibly attaches to a matter on any one of the 3 triggering events: (1) Ask for counsel while in custody; (2) Commencement of criminal prosecution on the matter (normally begins by filing of accusatory instrument); (3) Entry or keeping of counsel on the matter.

The New York Court of Appeals has acknowledged that the New york city right to counsel guideline under the New York State Constitution Short Article 1 Section 6 is much broader than the federal right to counsel guideline under the United States Constitution's Sixth Change. In New York, the right to counsel is grounded on this State's constitutional and statutory warranties of the privilege versus self-incrimination, the right to the help of counsel, and due process of law. It extends well beyond the right to counsel paid for by the Sixth Change of the Unites States Constitution and other State Constitutions. The right to counsel is so revered in New York that it might be raised for the very first time on appeal.

Distinctions between the right to counsel rules under New york city State law and federal law.

An essential difference in between the right to counsel under the New york city rule and the federal guideline is that under the federal guideline, a defendant retains the power to waive the right to counsel without very first conferring with his attorney if the offender has any discussions with the police and if the offender dedicated a voluntary and knowing waiver of his right to counsel; in New york city one might not waive the right to counsel without first consulting a lawyer even if voluntary and even if the defendant starts the discussion.

In addition, in New York City, a defendant for whom counsel has actually interceded might not waive counsel without counsel being present, even if the suspect has no concept that an attorney has actually been procured for him, as long as the police do. Nevertheless, under the federal guideline if the defendant does unknown about counsel's intervention he may waive the right to counsel without counsel being present or having actually conferred with counsel.

The basic rule in New York is that somebody that is held in custody on a criminal matter where an attorney has actually gone into that matter, then the indelible Psychologists in Perth right to counsel has actually attached and the individual being held may not waive the right to counsel with regard to that matter unless he has actually consulted an attorney.

In addition, a person held in custody on a criminal matter, where counsel has actually gone into, he might not validly waive the right to counsel on other matter, even if it is unassociated to the matter upon which counsel has actually gone into. When a defendant is represented on a charge for which he is being held in custody, he might not be interrogated in the lack of counsel on any matter, whether unrelated or associated to the subject of the representation.

Just recently, the New York Court of Appeals has actually found that even if it is reasonable for an interrogator to believe that an attorney might have gone into the custodial matter, there need to be a query regarding the accused's representational status and the interrogator will be charged with the understanding that such a query likely would have exposed.

Notably, the Court of Appeals has likewise held just recently that where a criminal offender is being held and is represented by counsel in an earlier Family Court matter that the indelible right to counsel does not attach by virtue of an attorney-client relationship in a Family Court or other Civil proceeding. The Court of Appeals stated that while an attorney-client relationship formed in one criminal matter may sometimes bar questioning in another matter in the absence of counsel, a relationship formed in a civl matter is not entitled to the same deference.


The New York Court of Appeals has recognized that the New York right to counsel rule under the New York State Constitution Article 1 Section 6 is much broader than the federal right to counsel rule under the U.S. Constitution's Sixth Amendment. In New York, the right to counsel is grounded on this State's constitutional and statutory guarantees of the privilege against self-incrimination, the right to the assistance of counsel, and due procedure of law. The right to counsel is so revered in New York that it might be raised for the very first time on appeal.

Leave a Reply

Your email address will not be published. Required fields are marked *