Question: When does a person have a right to an attorney?

Benson Varghese: You are guaranteed the right to an attorney through the U.S. Constitution as well as the Texas Constitution. The Fifth Amendment and the Sixth Amendment both give you the right to counsel. However, those rights attach at different times.

The Fifth Amendment right to an attorney attaches when you are in custody and being interrogated by a police officer. Both of those things must happen. So if an officer has you on the side of the road and is just asking you questions, you don’t have the right to an attorney. If you’ve not been placed under arrest and you’re not in police custody, you don’t have the right to an attorney at that point. That’s why, very often, officers will ask you a lot of questions before they put cuffs on you.

If you’re arrested, you don’t have the right to an attorney yet, unless the officer is asking you questions. And what you’ll see is that officers very often don’t ask questions after they’ve placed you under arrest—they’ve done that before. The reason is because they don’t have to read you Miranda warnings and you do not have the right to an attorney because they haven’t fulfilled a second portion of that task. There’s no interrogation; it’s custody, but no interrogation. Once both those things happen, you do have your Fifth Amendment right to an attorney.

Your Sixth Amendment right to an attorney attaches to a critical point in the prosecution against you. And generally, in Texas, what’s going to happen is that after you are informed of the charges against you by a magistrate, you will, at that point, be informed that you have a right to an attorney. Because it is a criminal case, if you cannot afford an attorney, the court will tell you that you have a right to a court-appointed attorney.