Understanding Miranda Rights: Right to Counsel and Avoiding Inadvertent Waiver

 Posted on December 00, 0000 in Criminal Defense

Through each stage of the criminal justice system you have rights that must be protected. The Fifth and Sixth Amendments to the United States Constitution grant you many rights, including the right to an attorney in most stages of criminal proceedings. These rights ensure that your trial is fair and that you do not unjustly get sent to prison. However, some of your rights, including the right to an attorney, can be waived.

Each year numerous people are arrested in the United States and are charged with drug violations. To be sure, the Bureau of Justice Statistics, in 2007, estimated that 14 million individuals were arrested across the United States, and approximately 1,800,000 of those individuals were arrested for drug violations. In Wisconsin, according to the Wisconsin Department of Justice, approximately 340,000 individuals were arrested in 2012, and an estimated 27,000 of those arrests were related to drugs.

Miranda Rights

Law enforcement officers are required to read you your Miranda rights prior to any custodial interrogation. Your Miranda rights stem from your privilege against self-incrimination, granted by the Fifth Amendment.

The Fifth Amendment applies to conduct done prior to being charged or indicted and law enforcement officers are required to inform you of:

• The right to remain silent;
• The right to consult with an attorney;
• The right to have the attorney present during questioning;
• The right to have an attorney appointed if indigent; and
• The fact that anything you say can and will be used against you in a court of law.

Should a law enforcement officer fail to give you your Miranda rights or fail to secure a written waiver, any statements you make can be suppressed and inadmissible at trial.

Sixth Amendment Right to an Attorney

The Sixth Amendment right to an attorney applies after you have been charged with a crime, and provides that you have a right to counsel at all critical stages of criminal proceedings. If law enforcement officers speak with you after you have been charged and while you are in jail awaiting trial, they have to inform you of your Miranda rights. Even if you already retained an attorney, you can inadvertently waive your right to an attorney if you are not careful.

In the recent Wisconsin Supreme Court case of State of Wisconsin v. Delebreau, formal charges were filed against the defendant for delivering heroin and he was represented by an assistant public defender. The defendant sent a letter requesting to speak with an investigator in his case, and the investigator met with the defendant two times. The investigator read the defendant his Miranda rights and the defendant waived them both times. The defendant tried to suppress the statements and the district court denied the defendant’s request. The Wisconsin Supreme Court agreed with the district court and concluded that a waiver of Miranda rights after charges are filed is an effective waiver of the Sixth Amendment right to counsel.

If you are charged with a drug offense, before you make any statements to the police about your alleged involvement, you should contact an experienced Milwaukee criminal defense attorney to protect your rights and avoid waiving your right to counsel.