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When You Have a Right to an Attorney, and Where That Right Comes From

A lawyer with some paperwork and a golden balance in front of him. Representing how one can benefit from calling a Portland criminal defense attorney.

In our last blog post, we covered how state constitutions can protect the same individual rights that the United States Constitution protects. On closer inspection, the fact that a state constitution can, for example, prohibit unreasonable searches and seizures does not make it duplicative with the federal constitution, which also prohibits unreasonable searches and seizures.

This is not the only place where your constitutional rights seem to be confusingly guaranteed by multiple sources. Another example is your right to an attorney, which is covered by both the Fifth and Sixth Amendments. However, just like when it comes to your rights under Maine’s state constitution and the U.S. Constitution, there are important distinctions to understand.

The Sixth Amendment: Your Right to an Attorney at Trial

The Sixth Amendment guarantees your right to an effective attorney at trial.

The important aspect of the Sixth Amendment’s right to counsel that makes it crucially different from the Fifth Amendment’s right to counsel is that the Sixth Amendment applies to the trial stage of a criminal proceeding. This means that the Sixth Amendment “turns on” at the beginning of the trial process, and “turns off” at the end of it.

Importantly, your right to an attorney through the Sixth Amendment guarantees that you can have an attorney at certain “critical” stages of the criminal process, including:

  • Police lineups and in-person identifications that come after the indictment,
  • Interrogations conducted after the indictment,
  • Your arraignment,
  • Plea bargains, guilty pleas, and sentencing hearings, and
  • Appeals that you have a right to make

The Fifth Amendment: Your Right to an Attorney During Custodial Interrogations

The Fifth Amendment guarantees that you will not be forced to be a witness against yourself in a criminal proceeding.

In order to make sure that you understand your Fifth Amendment right to not self-incriminate yourself, police have to give you your Miranda warning – informing you that you have a right to remain silent, and to have an attorney with you during a custodial interrogation. You have a right to each of these, in order to safeguard you from incriminating yourself during an interrogation with the police.

A Key Difference Between the Two Rights to Counsel: Timing

One of the big differences between the Fifth and the Sixth Amendment’s right to counsel is when they come into play. The Sixth Amendment only applies if you’ve actually been charged with a crime, and ensures that you have an attorney by your side during certain key parts of the trial process.

The Fifth Amendment, on the other hand, protects you earlier in the process, often in the immediate aftermath of an arrest.

There are other crucial differences between the two rights to counsel, which we’ll go over in subsequent posts.

Maine Criminal Defense Attorney William T. Bly

You can only benefit from having a solid criminal defense attorney at your side if you know when you have the right to call one.

If you’ve been charged with a crime, or are ever questioned about a crime while in police custody, you have a right to an attorney to help fight for you. Call the law office of William T. Bly at (207) 571-8146 or contact him online.


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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!!

Dave Allen

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.”

Brandon Albert





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If you are facing criminal charges in Maine, the attorneys at The Maine Criminal Defense Group are here to help. Call our office to speak with one of our team members, who will discuss your case with you and set up a consultation with one of our attorneys.

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