A defendant always has the right to counsel. They always have the right to defense by an attorney when the charge carries the possibility of serving time in jail, prison, or an institution. Anytime a charge has been made against an individual which carries the possibility of incarceration, that individual has the right to be represented by someone who is qualified and skilled in criminal justice laws and procedures.

This is provided, and the opportunity is given so the defendant may consult with an attorney in regards to investigating the case, examining the evidence, and prepare for the coming hearing and/or trial. This is a basic right that every individual holds. That individual holds the right to counsel even if counsel has not been appointed. Waiving the right to counsel is a mistake. Even if the accused is versed in the law, it is never a good idea to represent oneself.

a lawyer giving advice to a clientThe right to counsel extends beyond the courtroom. An individual being questioned by the police has the right to have an attorney present. All critical stages of being charged with a crime carries the right to be represented by an attorney. For example, orders to submit to a breathalyzer, or presentence interviews are not considered a critical stages. However, critical stages do include being involved in a police lineup, at initial appearances, at preliminary hearings, during evidentiary hearings, during arraignment, at trial, when a verdict has been rendered and is being announced, during sentencing, and during appeals or petitions for review by the supreme court.

At this juncture, the right to counsel only applies to a direct appeal. This does not include collateral attack. It is not a violation of due process to not appoint an attorney on collateral attack in regards to the revocation of probation. Further, the right to counsel is offense-specific.

If a defendant does not have the means to hire an attorney, one will be appointed to them by the court. This fee is footed by the county. In this scenario, the defendant may not choose a specific attorney, and must work with the attorney in which the court has appointed as their legal defense. Also, the defendant does not hold the right to terminate a court-appointed attorney. You are in it for the long-haul. The court does hold the right to change the appointment of attorney, but it is at the judge’s sole discretion. Although, the defendant does have the right to “effective assistance of counsel”.

Not that it is common, or probable, but it is illegal to attempt to manipulate this right in order to delay proceedings, or to obstruct proceedings. You do have the right to defend yourself, but you may not act as pro-se co-counsel. This is not permitted.

Dan Exner, J.D.

Family Law Attorney

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