Criminal-Defense Articles | The Right to an attorney

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The Right To An Attorney

In the United States, the right to have an attorney present during questioning in a criminal investigation actually is of fairly recent origin. The right to the presence of an attorney during a criminal investigation is most often associated with the Miranda warning, the advisement given that sets forth an individual's particular rights. However, the right to have an attorney present during question does not have its exact origins in the Miranda case. Rather, the right to the presence of an attorney during questioning became firmly entrenched in the American judicial system about fifty years ago in a prosecution that has become known as the Christian burial case.

In the Christian burial case, a man was arrested who was accused of murder. At the time the defendant was taken into custody, the body of the victim had not been uncovered. Authorities had no idea where the Defendant had placed the victim's body.

The gentleman alleged to be responsible for the murder was seized outside the jurisdiction where the murder took place. Police officers had to transport the defendant quite a distance by auto. At the time the defendant was picked up by police officers, the defendant had not confessed to the murder or to any other crime.

During the course of the drive, the police officers began to talk to the defendant about Christian burials. The officers carried on about how unfortunate it was that the victim would not receive a proper Christian burial. With the body missing, the officers stated, the poor victim would never receive a Christian burial.

The officers continued on with their discussion of Christian burials for hours, eventually wearing down the defendant and any resolve he might have had to exercise his constitutionally guaranteed right to remain silent. Eventually, the conversation wore on the defendant. He confessed to the murder and told the officers where the body was placed and located. As a result of the confession, the defendant was indicted and ultimately convicted of murder.

In the end, however, upon appeal, the case stood for the proposition that if police officers are going to question or try to illicit information from a criminal suspect in any fashion, that criminal suspect was entitled to have a lawyer present if he so chooses. Because the defendant in the Christian burial case was questioned and persuaded after he was in custody and without the benefit of legal counsel, that defendant's conviction was set aside as being unconstitutional.

Even after nearly half a century, the United States Supreme Court continues to deal with the matter of attorney representation in criminal cases. Every term of the nation's highest court, the justices are confronted with refining issues and matters relating to the right to an attorney. There is an ongoing battle between the conservative and liberal wing of the Supreme Court, with the liberal justices wanting to extend the reach of the Sixth Amendment right to counsel and the more conservative justices attempting to restrict those rights.

Further reading resources

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