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Invoking and Waiving Your Right to an Attorney

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In one of our recent blog posts, we went over how both the Fifth Amendment and the Sixth Amendment gave you a right to an attorney. While it might seem confusing that there are two different parts of the Constitution that do the same thing, the reality is that they are subtly different from each other in several important ways.

One way that your right to an attorney under the Fifth Amendment is different from your right to an attorney under the Sixth is how you can raise that right, and what you have to do to waive your right to an attorney.

Raising and Waiving Your Sixth Amendment Right to an Attorney

One of the most important differences between the Fifth and the Sixth Amendment is what you have to do, in order to exercise your right to an attorney.

When your right to an attorney is guaranteed by the Sixth Amendment – which is the case when you are at a “critical stage” of the criminal process, like your arraignment, post-indictment interrogations and identifications, and trial hearings – then you do not have to do anything to invoke your right to an attorney. Instead, the Sixth Amendment assumes that you are going to exercise your rights.

If you want to waive your Sixth Amendment right to an attorney, then you will have to take the initiative and formally request to proceed in the case pro se, or on your own.

Raising and Waiving Your Right to an Attorney Under the Fifth Amendment

When your right to an attorney is based on the Fifth Amendment, however, the assumption goes the other way – you are assumed to not exercise your right, and have to take action to raise it.

This is a hugely important thing to understand if you are being questioned by police. The Fifth Amendment gives you the right to an attorney during a custodial interrogation, which is when police often get most of their evidence against you. By requiring you to actively invoke your right to an attorney by saying, specifically and unambiguously, that you want to talk to your lawyer, the Fifth Amendment does not protect you until you make it protect you.

For this reason, as soon as you become subjected to a custodial interrogation, you should invoke your Fifth Amendment right to an attorney to get a legal professional on your side at this crucial time. If you don’t invoke your right to an attorney, you are deemed to have waived your right to counsel, which makes it much easier for police to get a potentially incriminating statement out of you that could hurt your case in the long run.

Maine Criminal Defense Attorney William T. Bly

The differences between the Fifth Amendment and the Sixth Amendment, especially when it comes to invoking and waiving your right to an attorney, carry a huge practical significance. They are your rights, and you should always exercise them. Not doing so puts you at serious risk of being convicted of a crime that you did not do. Contact the law office of criminal defense attorney William T. Bly online, or by calling (207) 571-8146.


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Great group of people. Managed to get me a favorable outcome from a very bad situation. I would highly recommend this firm if you have legal troubles. Top notch performance!!

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So thankful I chose this team to represent me. They’re the best, hands down. Nathan Hitchcock proved my innocence not once but TWICE, including a trial by jury. I have a family in law enforcement who told me “Bill Bly and his team are the best. If I would recommend anyone, it would be them.”

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