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After trial, you are not always entitled to a defense attorney

Most of our readers know that they have the right to an attorney when being questioned by police after an arrest, and during trial. But they may not realize that the Sixth Amendment’s right to counsel applies to many proceedings that take place after a guilty verdict. This is important, because the defendant’s rights and freedom are likely at stake at that point.

In most cases where the defendant is found guilty, the first time his or her right to an attorney comes up post-trial is during sentencing. It is considered a “critical stage” of prosecution, so the Sixth Amendment applies. The defense attorney may be able to convince the court to hand down a lower sentence than what the prosecution asks for.

Because the Sixth Amendment gives defendants the right to a competent attorney, if the defendant believes his or her lawyer was incompetent or ineffective, he or she has the right to a new attorney to help review the original lawyer’s conduct. Incompetent legal counsel at trial could be grounds for a new trial.

Interestingly, the courts do not consider the right to an attorney to be limitless when it comes to all post-trial proceedings. A filing for a retrial due to a serious error at trial, or filing a habeas corpus petition, is not entitled to legal help. Once the person has served the sentence, he or she may try to get his or her record expunged, which can restore all of his or her civil rights. However, he or she must pay for an attorney to help, or go it alone, because the Sixth Amendment does not apply to expungments.

The Sixth Amendment has been interpreted to give criminal defendants the right to an attorney, regardless of the defendant’s ability to pay. In most cases, it is worthwhile to get the best defense attorney you can afford.

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