Legal Question in Constitutional Law in Florida

Re: Right to Counsel

1. The right to counsel attaches as soon as you are charged with a crime which could result in time behind bars, or when police question you while you are in custody. If you tell the police you want a lawyer, they have to stop questioning you. Getting one appointed at public expense requires some more steps, which vary from place to place but which are usually straightforward; you just have to prove that you can't pay for a private attorney. And yes, the right to counsel applies at sentencing hearings, on appeal and at probation revocation hearings.

2. Only the Sixth Amendment guarantees the right to counsel in criminal cases. The Fifth Amendment says you can't be forced to testify against yourself, that you are entitled to a speedy trial and an impartial jury, etc., but it says nothing about lawyers. Invoking the right to counsel does not make you "question proof," but it does mean you can have a lawyer with you when you are questioned. She will tell you which questions you shouldn't answer.

3. You have the right to an attorney when you are interacting with the justice system. If the police are just investigating on their own, you don't get to have a lawyer go along with them. You also don't get a lawyer in a grand jury proceeding because the 5th Amendment says the suspect can't be forced to testify there. If you are foolish enough to voluntarily talk to the grand jury, you don't get to bring your lawyer (though some state constitutions may give you this right). You are entitled to counsel during custodial interrogation and at bail hearings. Whether you are entitled to a lawyer at your initial appearance depends upon whether the charges against you carry a potential sentence of time in jail or prison.

The accused is allowed to represent himself as long as he makes his decision knowingly and voluntarily, though there will be a deadline for such a request. A Faretta hearing is where the judge informs the accused of the risks of representing himself and makes sure the accused understands his rights and is competent to waive them. The court's questions will not be about the defendant's guilt but rather about his decision to represent himself. He has no right to refuse to answer these questions because they will not incriminate him.

It is almost never a good idea to represent yourself in a criminal trial - even if you make your living as a criminal defense attorney.