When Does The Right To Counsel Attach?



A person's right to counsel indelibly attaches to a matter upon any among 3 activating occasions (1) entry or keeping of counsel on the matter; (2) beginning 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 connects based on one of the three rules listed above, any declaration deliberately elicited from that person by the cops without counsel present undergoes suppression and any grant search obtained without counsel present is void. In New york city the right to counsel indelibly attaches to a matter on any one of the 3 activating events: (1) Request for counsel while in custody; (2) Commencement of prosecution on the matter (normally begins by filing of accusatory instrument); (3) Entry or retaining of counsel on the matter.

The New York Court of Appeals has actually acknowledged that the New York right to counsel guideline under the New york city State Constitution Short Article 1 Section 6 is much more comprehensive than the federal right to counsel guideline under the U.S. Constitution's Sixth Amendment. In New york city, the right to counsel is grounded on this State's statutory and constitutional assurances of the benefit 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 Amendment of the Unites States Constitution and other State Constitutions. The right to counsel is so revered in New york city that it might be raised for the first time on appeal.

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

A key distinction between the right to counsel under the New york city guideline and the federal rule is that under the federal guideline, an accused retains the power to waive the right to counsel without very first conferring with his attorney if the offender has any conversations with the police and if the offender dedicated a voluntary and knowing waiver of his right to counsel; in New Psychologists in Perth york city one may not waive the right to counsel without very first conferring with a lawyer even if voluntary and even if the accused initiates the discussion.

In addition, in New York City, a defendant for whom counsel has actually interceded may not waive counsel without counsel existing, even if the suspect has no idea that a lawyer has been procured for him, as long as the authorities do. Under the federal rule if the offender does not know about counsel's intervention he may waive the right to counsel without counsel being present or having actually given with counsel.

The basic rule in New york city is that someone that is held in custody on a criminal matter where an attorney has actually gone into that matter, then the enduring right to counsel has connected and the person being held might not waive the right to counsel with regard to that matter unless he has consulted an attorney.

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

Just recently, the New York City Court of Appeals has actually discovered that even if it is reasonable for an interrogator to think that a lawyer might have entered the custodial matter, there should be a questions relating to the defendant's representational status and the interrogator will be charged with the understanding that such a questions likely would have revealed.

Significantly, the Court of Appeals has actually also held recently that where a criminal accused is being held and is represented by counsel in an earlier Family Court matter that the enduring 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 specified that while an attorney-client relationship formed in one criminal matter may in some cases disallow questioning in another matter in the lack of counsel, a relationship formed in a civl matter is not entitled to the same deference.


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

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