Does the Right to Counsel require qualifications? In the U.S. the Constitution has been interpreted as requiring that anyone arrested be allowed, at their request, to consult with a lawyer before being questioned, and to have one present during questioning. (Actually, that may be too strong an assertion: as best I can tell these often-called Miranda rights appear only to apply when law enforcement wishes to ensure that statements from a subject in custody be admissible in a criminal trial against the subject.) Recently the Supreme Court ruled in United States v. Gonzalez-Lopez that not being allowed counsel of one's choice was grounds for automatic reversal of a conviction. The Right to Counsel seems well-defined for trial, but not for arrest and investigation. Therefore: Regarding the arrest and/or custodial interrogation stage: Are there any laws that govern who can serve as counsel, and how one must be allowed to contact them? For example, if I am arrested and: I want use a friend who has no legal training as &quot;counsel,&quot; do the police have any legal recourse from allowing me to talk to him prior to interrogation? E.g., can they insist that my counsel be a member of the bar in the state where I have been arrested? I want to consult a &quot;team&quot; of qualified counselors. Are there legal grounds or regulations to limit the number of individuals I consult prior to interrogation, and who I have present during interrogation? Can my contact with counsel be proscribed in any way? E.g., can the police limit the duration or schedule of my contact with counsel? Can they impede or delay access to me by someone who claims to be my counsel? What do police have to do to facilitate my access to my desired counsel(s)? E.g., how long can I be held after requesting an attorney without being allowed to attempt to contact one? What means must I be granted to find and contact the counsel of my choice? (I'm hoping that there is settled law on these questions, though this report suggests that, practically, police can do whatever they want until a lawyer actually finds out a client has been arrested and manages to locate him!)
1. I want use a friend who has no legal training as my "counsel," do the police have any legal recourse from allowing me to talk to him prior to interrogation? E.g., can they insist that my counsel be a member of the bar in the state where I have been arrested? Yes. If they don't want you to, you cannot talk to a friend, only a lawyer. If you got an OUI, and you're not being a jerk, they will probably let you talk to whomever you want (within reason &ndash; it's not social hour). However, they can keep you from speaking to anyone but a lawyer as that person could gain information from you that can corrupt their investigation. (E.g., they arrest you with 10 lbs. of methamphetamine. They know it's "fresh" and likely came from a local lab that they suspect you of running. You cannot be allowed to talk to just anyone, as they could help get the lab broke down, moved, destroyed). In TV shows you see attorneys doing this type of illicit thing, but in reality that is very rare. When you enter the police station to speak with a client, you must present your bar card (license to practice). Friends are not allowed in, even if you value their counsel &ndash; they are not counselors! 2. I want to consult a "team" of qualified counselors. Are there legal grounds or regulations to limit the number of individuals I consult prior to interrogation, and who I have present during interrogation? No. You can have your entire legal team with you, while preparing for court, or while being questioned, within reason. They do not need to rent a conference room to fit your 30 person legal team, but if you want 3 or so lawyers in with you, and you can afford paying each $250-$500 per hour, then have at it. Most lawyers would counsel you against this, as it creates an undue impression of limitless (hence likely illegal) funds. (But if you're a hedge fund manager, and you can show your money is legally earned, it's really your choice.) I have had occasion to go in to meet a client with co-counsel numerous times (especially in early years of practice when there is a lead attorney and second chair, so to speak, even for interrogation (which means silence by the client). They can "impede" access to some extent, though they typically don't. They can play games with your lawyer and make them wait and make you wait, but not while they are in with you, and only for so long. Once your lawyer arrives they should leave you alone. (Some courts say once you ask for counsel they need to leave you alone, but this only really matters if they get a confession from you (or any evidence) before you've (and this is what they're hoping for) recant your request for counsel and your right to remain silent.) 3. Can my contact with counsel be proscribed in any way? E.g., can the police limit the duration or schedule of contact with counsel? Can they impede or delay access to me by someone who claims to be my counsel? Once you've called your lawyer, they need to to let him or her meet with you for a reasonable amount of time before questioning. This is typically a quick meeting, just long enough to make sure you will not say a word. Even completely innocent people should keep their mouth shut &ndash; innocent people do occasionally get arrested and convicted! No matter what the police say, there is no benefit, ever, from talking to them. Some police, who know it's their last shot to get a confession and know once your lawyer gets there will never talk to you again (and they have enough to go forward without your confession in the event you just start blabbing "you did it" before they can get you to invoke your rights) will keep talking to you and tell you not to comment, just to listen, even while your lawyer sits outside. They can say you're being processed, or there's a security issue, any number of reasons for short delays if they need it. They will then go on and on about "how they can maybe help you out if you talk now, but once your lawyer arrives all bets are off." These are just tricks to get you to recant/revoke your rights and to obtain your confession. You will usually see your lawyer shortly after arrival. Can they impede or delay access to me by someone who claims to be my counsel? Yes, if your lawyer doesn't have adequate ID or cannot verify he is licensed in that state, or in another state and with local counsel. The police do not have a duty to research your lawyer's credentials, and don't have to go online and look your attorney up in the bar directory to make it easier for him or her to get to you. However, if they know the attorney, and he or she forgot his bar card, they would probably lose the confession if you confessed while they make him go get it. Most lawyers carry their bar card in their wallet, so this is not a typical problem. 4. What do police have to do to facilitate my access to my desired counselor(s)? E.g., how long can I be held after requesting an attorney without being allowed to attempt to contact one? You have a right to contact a lawyer. There is no explicit right to a phone call, although some form of contact is implied. Hence, you can usually be held 3 hours before they have to let you "contact" someone, and this is after processing. You can be held until your lawyer gets there or until your arraignment, whatever comes first. If your lawyer doesn't show up, you will be given another opportunity by the court to get your lawyer of choice there for arraignment. If you can't, and you don't want to go forward, a public defender will move to waive your right to a speedy trial and seek a continuance until you can get your counsel of choice there. If this happens, consider getting a new lawyer. What means must I be granted to find and contact the counsel of my choice? This actually differs depending on where you are and what you did. Again, you have a right to counsel but they can determine how you get this done. Sometimes there are local laws that say you get any number, or 3, or 1 completed phone call to reach your counsel of choice. If there is an overriding risk that you will call someone to communicate information that could put the investigation in jeopardy or would be adversely impact their evidentiary value in some way, even when these laws exist the police can refuse you direct contact with anyone and may implement a strict "they call" policy, where they will call the lawyer and tell them, or call your family to let them know, and they can call the lawyer. They cannot hold you for a protracted amount of time without giving you some way to get word to a lawyer; it must be reasonable. There is not a lot of law out there about what is not reasonable, because the police know, and for the most part accept, that once right to counsel has been invoked they are done. There is case law saying that 3 hours is reasonable. What is not reasonable? That is fact dependent.
The best course would be to contact the public defenders office and explain the situation to their intake or consultation services. Remember, you don't have to be going to trial to avail yourself of their services and sometimes, helping cops makes the cops suspicious about you (it would not be the first killer who cozies up to the police to learn what they know about his crime). If the Public Defender thinks you're rich enough not to need their services, you should call criminal defense attorney practices. Most law offices will offer consultation free of charge as part of client intake, so they will be willing to hear your case and offer advice. In either case, check with the lawyer that attorney client privilege is in effect. If they say yes, explain in detail to them, everything you know and want to discuss, even if some of it could criminally implicate you in this or another crime. Treat it as your deathbed confession and you know full well which circle of hell you're going to if the priest doesn't absolve you of sins (okay, too Catholic... but the Lawyer is not going to turn you in if the privilege is in effect... he could lose his license to practice law over it... we can make all the evil lawyer jokes we want, but this is one of the few sacred tenants of their profession.). Listen to his advise. Also see if you can find a second opinion. It's not that the first guy gave bad advice, but the next guy might give you something different. If you still do not feel comfortable, then keep your mouth shut. If they arrest you for the murder, do not talk until you have an attorney present and prepare to tell him exactly what you did. Especially if you did do it. Always answer your attorney truthfully.
Arrests For Crimes A charge must be identified very early in the criminal justice process, typically upon booking an arrested person at a police station or jail, which will usually take place minutes to hours after an arrest is made. At the latest, a provisional charge will be revealed at a first appearance before a judge (which will usually take place within a day, or sometimes a bit longer on a weekend or holiday in rural areas whether it should or not), although the charges identified at that time can be amended later in the process. A plea of guilty or not guilty is entered at an arraignment, which sometimes is combined with a first court appearance and sometimes is conducted separately. A preliminary hearing happens much later in the criminal justice process, after an arraignment (which is sometimes combined with a first court appearance), and after counsel is assigned to represent the person who is charged. A preliminary hearing is an adversarial mini-trial before a judge at which the prosecution presents evidence sufficient to establish probable cause on previously disclosed charged in a somewhat summary fashion (not necessarily everything to establish guilt beyond a reasonable doubt), and the attorney for the defendant can cross-examine witnesses, object to questions improper under the rules of evidence, and introduce exonerating evidence (although this last option is only rarely utilized). A preliminary hearing is a substitute for a grand jury indictment as a means to screen whether charges are supported by probable cause. Usually, but not in absolutely all cases, if the arrest is pursuant to an arrest warrant, the arrest warrant will be presented to the person being arrested immediately prior to, at the time of the arrest, or immediately after the arrest is made, and the arrest warrant will provide some insight into the charge. But, unless a state statute or court rule provides otherwise, a charge does not usually need to be disclosed during the actual process of making an arrest, or while the person arrested is being transported to a police station or jail for booking, although the charge often is disclosed at that time or even before the arrest is made. Frequently, someone is read their Miranda rights before the charge is identified. Some of the fine details are a matter of state specific court rules and statutes, but the general outline of the process described above is the U.S. constitutional requirement. The process for arresting a minor is not very different from the process for arresting an adult, but usually, when a minor is arrested, a parent or guardian must be promptly notified of the arrest and the charge, if possible. Many states have a minimum age for arresting a minor for committing a crime or juvenile delinquency offense, which is typically somewhere in the range from age seven to age twelve, although there is considerable variation on this point. This is an area of the law where active efforts to pass reform legislation to take a less punitive approach with younger minors are underway. Minors Taken Into Custody For Other Reasons Also, while adults are overwhelmingly arrested on suspicion of having committed a crime, a minor is sometime placed under law enforcement or social services custody in a manner that looks like an arrest, but isn't, for a reason other than a charge that the minor is actually believed to have committed a crime. For example, suppose that a five year old child is found in an apartment at which two adults presumed to be the child's mother and father, are found dead (the reason for their deaths doesn't really matter). In that situation, the law enforcement officer at the scene would generally take physical custody of the child pending the arrival of a social services officer at the scene who would then take physical custody of the child from the law enforcement officer until another suitable guardian could be located, even though there is no suspicion that the child committed a crime. The name for this process varies from jurisdiction to jurisdiction. In New York State, for example, this is called &quot;person in need of supervision&quot; case (PINS for short), which is sometimes thought of as a civil custody matter and is sometimes classified as what is called a &quot;status offense&quot; that justifies the government taking custody of a minor even though the minor has not committed a crime.
I am guessing that the question is about the United States, since the &quot;objection!&quot; procedure is not the same in other places. The Supreme Court has held that even though you have the right to represent yourself, this is conditional on your maintenance of proper conduct. If you disrupt proceedings and disregard judicial directions, then the judge can find you in contempt of court, just as with anybody else who was doing that. In Illinois v Allen, 397 U.S. 337 (1970), a self-represented litigant &quot;started to argue with the judge in a most abusive and disrespectful manner&quot;, threatened the judge's life, and made clear that he intended to filibuster the process, saying &quot;There is going to be no proceeding. I'm going to start talking and I'm going to keep on talking all through the trial. There's not going to be no trial like this.&quot; The judge ordered him removed from the courtroom on several instances of this behavior, and also appointed professional counsel. Following a series of appeals against all this, the Supreme Court ultimately said: Although mindful that courts must indulge every reasonable presumption against the loss of constitutional rights, Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 464 (1938), we explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course. be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.
Does Alice have to expressly announce if she or friends or family would be recording and obtain therein the implied or an express consent due to a covenant of good faith duty or since they don’t have a contractual relationship, and Bob acts out of a statutory right of Alice imposing in particular a duty on Bob, she has no such duty? Alice and her counsel have some reciprocal duties. The duty of good faith and fair dealing, while in principle applicable to any contractual relationship, is not a good framework in which to analyze those duties. It is more fruitful to consider this specialized situation as a relationship arising at law which is not predominantly contractual in character. It is an attorney-client relationship primarily, not a contractual one, particularly in the case of appointed counsel who is not voluntarily selected or paid by the client. There are rules of professional conduct that specifically govern the allocation of responsibilities between an attorney and a client, some of which are particular to criminal defense clients and their attorneys. These rules of professional conduct would be controlling, not the duty of good faith and fair dealing. Further, it bears noting that the proposed arrangement would result in a forfeiture of the attorney-client privilege which is not a condition that any reasonable attorney engaged in a criminal defense case would agree to allow, for the client's own good. The main rules of professional conduct that are applicable (all U.S. jurisdictions use the same numbering system for their rules of professional conduct although not all of them are identical in content) are Rule 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer), Rule 1.4 (Communications), and Rule 1.6 (Confidentiality of Information). Of these Rule 1.2 is most important. It states: [A] lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. It also prohibits a lawyer from allowing his or her services to be used in furtherance of an ongoing crime or fraud. Rule 1.4 provides that: (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rule 3.1 (Meritorious Claims &amp; Contentions), Rule 3.3 (Candor Towards The Tribunal) and Rule 3.4 (Fairness to Opposing Party &amp; Counsel) would also often be pertinent (as this defines what communications an attorney can and cannot have with others ethically, primarily prohibiting an attorney from knowingly using false testimony or faked evidence). There is some variation from state to state in the exact details of these rules, but the general thrust and the general scheme of organization is the same. In a nutshell, the clients has a responsibility to determine ends, and the lawyer is charged with deciding means, although in practice, it can get more complicated than that when the ends and the means are intertwined. The main exceptions in criminal cases to this division of labor are the means involved in electing a jury trial and choosing to have the client testify as a witness. A lawyer could reasonably insist, as a condition of ongoing representation by the lawyer of the client, that communications between lawyer and client not have someone else listening in.
According to the ACLU, there are certain questions you have to answer when entering the US, and in some states you may have to identify yourself when stopped and told to identify yourself. Nonimmigrant non-citizen may be required to answer questions about immigrant status posed by an immigration officer. Otherwise, you are not required to answer questions by police. A judge can order you to answer questions, but the police cannot. Also, "obstruction of justice" covers things such as destroying evidence, assaulting a process server, communicating with a juror, and can cover investigative demands by prosecutors, but not being uncooperative with police.
How much would I be expected to reveal if not directly connected to the case? For example, if I was asked, &quot;What were you doing in the alley at night?,&quot; would you be required to reveal the information if it is potentially humiliating (e.g. you were having an affair) or illegal (e.g. you were getting illegal drugs)? The latter case seems to violate the protection against self-incrimination. Or what happens if you just lie about something inconsequential? You have to answer any permissible questions (i.e. consistent with the rules of evidence) asked. If you were doing something illegal you can claim the fifth and not testify unless you are given &quot;transaction immunity&quot; that your testimony will not be used against you in a criminal case against you. Usually perjury prosecutions require that the lie be about a material fact. Suppose you receive a death threat (either verbal or in writing) from the person charged with and who committed the crime. Something along the lines of: if you testify against me, then my friends will kill you after the trial. What legal options do you have? Tell the prosecutor on the case and ask the prosecutor to provide protection to you and to go after the people making the threat. The witness protection program was created for these cases.
They have a right to be present but can be removed under Illinois v. Allen While in general, a person has a right to be present for the trial and conviction hearing, they can be removed if they disturb the orderly process. SCOTUS also offers to have him fined again and again (only works if the accused is not judgment proof) or to gag and bind an unruly defendant. Illinois v. Allen, 397 U.S. 337 (1970) Syllabus Respondent, who was on trial for robbery, was removed from the courtroom for repeated disruptive behavior and the use of vile and abusive language directed at the trial judge, notwithstanding the judge's prior warning that removal would follow another outburst. Appointed counsel represented respondent during the period respondent was not allowed in the courtroom, principally the presentation of the State's case. Having given some assurances of good conduct, respondent was allowed to return to the courtroom while appointed counsel presented his defense. Respondent was convicted. Following the State Supreme Court's affirmance, respondent filed a petition for a writ of habeas corpus in federal court, contending that he had been deprived of his right under the Sixth and Fourteenth Amendments to confront the witnesses against him. The District Court declined to issue the writ. The Court of Appeals reversed, holding that a defendant's Sixth Amendment right to attend his own trial was so &quot;absolute&quot; that, regardless of how unruly his conduct, he could never be held to have lost that right so long as he insisted on it, as respondent had. Held: A defendant can lose his right to be present at trial if, following the judge's warning that he will be removed if his disruptive behavior continues, he nevertheless insists on conducting himself in such a disruptive manner that his trial cannot proceed if he remains in the courtroom. He can reclaim the right to be present as soon as he is willing to comport himself with decorum and respect. Pp. 397 U. S. 342-343. A trial judge confronted by a defendant's disruptive conduct can exercise discretion to meet the circumstances of the case, and though no single formula is best for all situations, there are at least three constitutionally permissible approaches for the court's handling of an obstreperous defendant: (1) bind and gag him as a last resort, thereby keeping him present; (2) cite him for criminal or civil contempt; or (3) remove him from the courtroom, while the trial continues, until he promises to conduct himself properly. Pp. 397 U. S. 343-346. On the facts of this case, the trial judge did not abuse his discretion, respondent, through his disruptive behavior, having lost his right to confrontation under the Sixth and Fourteenth Amendments. Pp. 397 U. S. 345-347. Example of removal in action: The Darrell Brooks case As a rather public example, this happened during the Darrell Brooks trial, multiple times: there's abouht 9:12 hours and 6:15 hours of sentencing hearing in this case, including breaks, split between two days. On the 2nd day, the judge starts the actual sentencing by elaborating on how she understands the case at about 3:11:45. If you look up the transcript, keep in mind that the local time at the start of the video was about 12:50, ten minutes to 1 PM. At 3:44:20, Mr. Brooks starts to speak up and interrupt the judge, receiving in quick succession multiple warnings that he will be removed if he doesn't stop. After 40 seconds, the order to remove him from the courtroom is given. The hearing resumes at around the 3:49:50 mark, Mr. Brooks now in a separate courtroom. The judge elaborates that Mr. Brooks has a right to be present, and also why he can be removed under Illinois v. Allen. There is more elaboration on this topic till Mr. Brooks is muted at about the timestamp 3:53:00, because he is unwilling to do the required pledge to reclaim the right to be present under that case. More explanation about it follows that the judge wants the pledge in writing at that point. The reading of sentencing factors only resumes at around the 3:55:00 mark. Mr. Brooks writes something at about 3:57:00, and the paper is given to the judge at 3:59:19, ruling that whatever is on the sheet is not a pledge and thus he stays removed at 3:59:25. For some hour Mr. Brooks waves papers at the camera, writing another note to the Judge at starting about 4:41:00, before resuming waving with the new note at about 4:43:20 and showing his statement to the camera at 4:55:52. Sadly the quality is not good enough to read the letters, and not even the judge can read it at 5:57:00 - re-iterating that unless it is a pledge to stay quiet, he's not coming back. The prosecution manages to make out the top word as Objection at 4:57:20 and shortly after it is ordered that he may return with the sign, but if he so much as speaks up, he will forfeit his right to be present. Court resumes at about 5:03:20, corresponding to 4:53 in the courtroom. Mr. Brooks is instructed that he can only stay in the courtroom if he is to waive his right &quot;to do so&quot;, and that if he doesn't behave he'd be removed again and told to sit down. Instead, Mr. Brooks starts rambling about subject matter jurisdiction at 3:04:00. Told once more to sit down, this transpires: Mr. Brooks: &quot;I'd like to go back to the other court room.&quot; Judge: &quot;It's not a courtesy to you. If you like to specifically waive your right to be physically present, then I will entertain that. Otherwise, you need to sit down.&quot; Mr. Brooks: [something unintelligible] &quot;I never waived a right to not be present&quot; [more unintelligible] Judge: &quot;That's because you forfeited your right to be present by conduct. You're now back in this courtroom. Mr. Brooks: &quot;Your honor I wrote three... I did what you asked me to do...&quot; Judge: &quot;You never once pledged to me sir, that you would not interrupt, and you're demonstrating by being here that you will continue to interrupt. Mr. Brooks [something to the effect that the judge told the bailiff that the pledge had to be in writing] Judge: &quot;Mr. Brooks, this is not a debate. You asked to come over here and I honored that, and I brought you back. Mr Brooks [Interrupts, the words My Right are understandable.] &quot;three times. I shouldn't have to do it three times!&quot; Judge: &quot;None of the opportunities you wrote to me said *I pledge to not interrupt.&quot; Mr. Brooks [Interrupts] &quot;I never had to do that before! You've never required that before!&quot; Judge: That is actually not true sir. Mr Brooks [argues that he'd never been required to pledge like that before in trial] Judge: Mr Brooks, You were just simply trying to delay the inevitable, please sit down. Mr. Brooks continues to argue and stand up, despite now being told to sit down and be quiet for the 3rd time since returning to the courtroom. A 4th order to &quot;please sit down&quot; is issued at about 5:05:35 and two more within about 20 seconds later. Mr. Brooks rants and complains about being removed in the first place and that he'd want to exercise his right to be present. The Judge finally re-iterates at 5:03:40 that the reason he was brought back was not because he had complied with the request to pledge not to interrupt, but because the next portion is very important. Mr Brooks doesn't sit down and argue. At 5:08:00 the judge clarifies that he &quot;did not reclaim his right to be present&quot; (which was forfeited back at timestamp 3:44:20!). A minute later, the judge orders him directly - with a warning that this is a direct court order and not doing what is told is contempt of court: Judge: Sit down and be quiet, so I can make the appropriate record. Mr Brooks [dispnbeys] Judge: All right, he's not going to obey, he has now forfeited his right to be present He will go into the other court room. We are in recess until he's there. 5:09:25 -The camera pans to the clock showing 4:59:20 Around timestamp 5:13:20 trial resumes, and the judge once more reiterates that and how the court deems Mr. Brooks having forfeited the right to be present for about two minutes. His sign that he objects to the other room and wants to return is ignored, even as he parades it around. Sentencing continues without him. The sentences are read starting timestamp 5:55:20 - no further interruption happens.