Independence Day and the Right to a Lawyer

As we celebrate Independence Day, I want to take a moment to reflect on some of the rights established early in our country’s history which continue to exist and evolve. It wasn’t until 1791 that the first ten (10) Amendments to the United States Constitution were adopted. The Fifth Amendment to the United States Constitution has significant meaning for criminal lawyers, judges and anyone involved in the criminal justice system. Over the years, the Fifth Amendment has been interpreted by several courts, including the United States Supreme Court, to afford individuals certain rights when confronted and questioned by the cops. In short, the Fifth Amendment provides protection from self-incrimination. As such, despite what the cops may tell you, you don’t have to speak with them. And if you ask for a lawyer, then cops don’t get to ask you more questions unless you keep on talking to them. You don’t have to speak with an officer without a lawyer present. You have a right to speak with a criminal attorney or criminal lawyer, or any lawyer for that matter before making any statements to any law enforcement officer. But, you have to be brave and stand up for yourself. You have to tell the officer that you are not speaking to him or her without your lawyer.

One of the classic mistakes that people make is agreeing to speak with a cop, a FBI agent, a DEA agent, or any law enforcement agent when they show up to and state that they want to speak with you. An officer arriving at your place of employment or home is generally the first clue that you need a criminal attorney or criminal lawyer. Surprisingly, many people will talk to these officers without an attorney or without requesting a criminal lawyer or criminal attorney. The United States Supreme Court in its decision in the case of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), held that once a defendant invokes his Fifth Amendment right to counsel (meaning the need or right to speak with a lawyer) that the police must cease their custodial interrogation. Court decisions continue to turn on the meaning of custodial or custody rather than the questioning. In other words, when is a person considered to be in custody? Custody has generally been associated with a formal arrest or the deprivation of freedom of movement associated with a formal arrest. But, the court cases have not limited the definition of custody to simply being placed in handcuffs or taken to a police department. Custody has been found where law enforcement have questioned people in their own homes. The test for determining custody is now multifaceted. However, the Fifth Amendment affords protection to individuals who assert their right to speak with a lawyer, even without an officer advising a person of the Miranda warnings. The key is for the person to assert their right to a lawyer — and the assertion must be clear and not ambiguous. In other words, a question such as “do I need a lawyer” has been held to be ambiguous and not a clear assertion that the person wanted to speak with a criminal lawyer. Insist on speaking with a lawyer before making any statements to cops. Your lawyer will thank you for being brave.

Scott Hamblin