Do I also have the right to interview several lawyers?
August 28, 2012 10:51 PM   Subscribe

Don't talk to the police is convincing and sound advice. Getting a lawyer to represent you so that the police don't trick you into a conviction is a great idea. However, when someone is unexpectedly taken into police custody, how they find a suitable attorney on the spot to defend them?

Do they just use the phone book or Google? Do they call the guy that handled their mortgage closing? Is the public defender just as good as a lawyer picked at random in this situation? Or do people that don't already have a lawyer usually just give up and talk?

I'm interested in knowing both what usually happens and what the ideal course of action is.
posted by ignignokt to Law & Government (22 answers total) 16 users marked this as a favorite
A lawyer is appointed by the state to represent people accused of a crime. (Not always right away, but in theory if you say "I don't want to talk to you until I have talked to a lawyer" the police are required to stop interrogating you.)

These lawyers are often (but not always) professional public defenders, and they are often better than random.

But in practice, many people without a lawyer do just talk.
posted by willbaude at 11:01 PM on August 28, 2012 [1 favorite]

Best answer: Well my iPad just ate my thoughtful answer, so I will make this brief: there is a difference between your right to counsel (via Miranda) and your right to counsel when charged with a crime (via Gideon). If you invoke your right to a lawyer during police interrogation, all questioning must cease. But if you start talking to the cops AFTER that, then it might be open season again afterwards, depending on your jurisdiction.

The more practical issue is where does clamming up and requesting an attorney get you? Maybe there won't be enough of a reason to charge you, and the cops will release you. Maybe you get thrown in jail as punishment for asserting your rights, and you stick around in jail a few days until you are formally charged with a crime and the public defender comes to see you.

Just because you invoke your right to an attorney during questioning doesn't mean a lawyer suddenly shows up. You generally have to be charged with a crime before the right to counsel attaches.

If you have money, on the other hand, this is less of an issue ... You just keep a lawyers number handy, and if you get stopped by the cops, you call them.
posted by Happydaz at 11:12 PM on August 28, 2012 [2 favorites]

From what 'a friend' told me, it is not uncommon for phones in a police facility (well, the ones they give you access to) to not be able to call cell phones as they are often dialing for a collect call.
posted by efalk at 11:16 PM on August 28, 2012 [1 favorite]

Meant to tie that to - if you're trying to contact a lawyer on his/her cell phone, good luck.
posted by efalk at 11:17 PM on August 28, 2012

Response by poster: Maybe you get thrown in jail as punishment for asserting your rights, and you stick around in jail a few days until you are formally charged with a crime and the public defender comes to see you.

So, the Miranda warning, which is to be issued when a suspect is arrested but not necessarily formally charged, came about because the Supreme Court said that:
...The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent her or him.
It's pretty clear what happens when you're indigent. You get the public defender. But what's not clear to me is when you're not. You can afford an attorney, but you don't have a relationship with a criminal defense lawyer. What's the best thing you can do, then?
posted by ignignokt at 1:03 AM on August 29, 2012

My initial impulse would be invoke the public defender, and explain to him the situation. The PD might be able to refer you to someone (I don't know the ethics of this), but if nothing else, the PD can deal with the initial issues and then get you to the place you'd get your own lawyer afterwards.

I don't think there's a Big Book Of Pay For It Yourself Defense Lawyers around.

If you have to use a bail bondsman (which I'd bet they have a book of around), the bondsman will probably have a working relationship with an attorney or firm.

Be realistic: 98% of the people wandering around do not have such an arrangement. They might know the guy that helped with their mortgage, or something, and they'd call him for someone he knows, but in general, it will probably be the PD for the initial situation, then if they can afford it, that's when they call Perry Mason (or get a relative to do so).
posted by mephron at 1:11 AM on August 29, 2012

Best answer: I imagine you would use your "one phone call" to call a family member or friend, who would then be tasked with finding a lawyer, either through their own personal connections or simply on Google.
posted by third word on a random page at 1:54 AM on August 29, 2012 [13 favorites]

In the UK we have the duty solicitor scheme where, if you don't have your own lawyer, the duty solicitor will be contacted if you ask for a solicitor.

It's also worth remembering that there is no right to silence in the UK if you're arrested.
posted by essexjan at 3:08 AM on August 29, 2012 [1 favorite]

Best answer: Ok so - you immediately say "I want a lawyer."

In the US, the police have to stop questioning you. Let's say they have enough to charge you and keep you anyway. You ask for your phone call. Call a responsible friend/family member that will call local bar association and help you look for a lawyer.

Whether you can afford a lawyer or not 9/10 times you won't get a lawyer at the station that night (let's say it's night). In the AM, if it's a weekday you go to the court or your arraignment. There will be a public defender there trying to help everyone out (she has never met any of these people yet, they were just brought in like you). Even if you don't qualify, she will help you to plead not guilty (assuming your buddy did not show up at court with your lawyer yet). She won't enter in appearance in your case.

If the crime you are charged with isnt serious, you will likely be let out that day with a court date to return on. Work on getting a lawyer in the meantime. If it is serious, you'll go back to jail. If your outside friends/family aren't helping you out, you might get word from fellow inmates on recommendations.

IANYL and this is very, very oversimplified.
posted by murfed13 at 5:10 AM on August 29, 2012 [4 favorites]

Best answer: This really depends on what state (and sometimes even what county or city within the state), you're in. In New York City, for example, everyone is represented at their initial court appearance by a public defender or other appointed counsel, who makes an argument for release and tells you what the initial plea offer is. People who can afford lawyers then contact their own lawyers once they get out (or if they're held in custody, via phone calls or jail visits). People who are indigent continue to be represented by the attorney or agency who represented them at arraignments.

I have been told, however, that it doesn't work this way everywhere. In New Hampshire, for example, there's a case currently pending before the state Supreme Court about the fact that most people don't have attorneys at arraignments because public defenders are not appointed until after that stage of the process. That means that some people plead guilty without ever speaking to an attorney. We'll see in the coming months how that shakes out. In Philadelphia, arraignments are conducted via closed circuit video from the jail, so while you have an attorney to speak on your behalf at your arraignment, you rarely get the chance to speak privately with that attorney before they make their argument for you to the judge.

So yes, the system is screwed up, and the promise of Gideon is still not being met in a lot of ways. My advice would be to keep your mouth shut as much as possible until you get the chance to hire an attorney. Don't answer any questions (other than booking questions such as name, address, etc.) without one, and certainly don't plead guilty without one, even if what you're offered seems like a good deal. You may end up spending more time locked up or in court at the outset, but you're also less likely to end up facing severe consequences down the line because you did something unwise that has repercussions that only an expert would be aware of.
posted by decathecting at 5:32 AM on August 29, 2012 [2 favorites]

Forgot to add- before you hire a lawyer you can have him or her visit you. So you could theoretically interview a lot of attorneys. But practically speaking, you'd only be in this situation if you weren't out on bail. Unless you were accused of murder, rape, robbery, etc., this is pretty rare for someone of financial means with ties to the community. Normally you are out and able to look yourself.

Again, very oversimplified and I am not your lawyer.
posted by murfed13 at 5:33 AM on August 29, 2012

Is the trope of "one phone call" at all accurate? Are the police required to allow you a call, and at what point? Will they allow you the use of your phone, or is there a phone they will provide and will it require coins?
posted by werkzeuger at 6:07 AM on August 29, 2012

I now carry two different lawyer cards. Criminal and IP. Do your research ahead of time.

I have a formal retainer agreement with one and an informal agreement to representation with the other.

I would also make sure you memorize your lawyer's number, as there is no constitutional right to access your wallet or phone.
posted by cjorgensen at 6:53 AM on August 29, 2012 [6 favorites]

Just came to say that it never hurts to have your lawyer lined up just in case. In a pinch, your family lawyer can recommend a criminal lawyer if it comes to that.

Also, if you cooperate with the police during an investigation, and at some point during questioning you feel uncomfortable, you can ask, "Am I being charged?" or you can say, "This seems to be a bit more than just asking for my information, I don't want to talk to you any more until I can arrange to have my lawyer present." At that time, if they want to hold you, they must arrest you, if they don't have enough to hold you, they must release you.

IANAL, everything I know comes from my Mom, who has an MS in Criminal Justice, People's Court and Law and Order.
posted by Ruthless Bunny at 8:53 AM on August 29, 2012

Best answer: To answer your follow-up question, let me tell you what happens locally to people who don't qualify for court appointed lawyers (assuming they are locked up). They talk to other people in the jail, learn the names of 2 or 3 local lawyers who take paying clients, and then they send them a brief written message, which the jail puts in that lawyer's courthouse mailbox. That lawyer will then make a free courtesy visit to that client, do a 20-minute intake appointment, figure out who will be paying the bills, and once that lawyer receives payment, he or she will file a notice of representation with the court, which will then coordinate a court date for everyone to show up at in the near future.
posted by Happydaz at 9:16 AM on August 29, 2012

Response by poster: Thanks, guys. I think that fills in most of the gaps in my conceptual model of this process. The trick of delegating the finding of a lawyer to someone on the outside with access to more resources totally eluded me.

I've heard what Ruthless Bunny said elsewhere -

Also, if you cooperate with the police during an investigation, and at some point during questioning you feel uncomfortable, you can ask, "Am I being charged?" or you can say, "This seems to be a bit more than just asking for my information, I don't want to talk to you any more until I can arrange to have my lawyer present." At that time, if they want to hold you, they must arrest you, if they don't have enough to hold you, they must release you.

- but it confuses me because I don't think they need a charge to arrest you. They just need probable cause. So, wouldn't they be able to hold you without a charge? I guess you could ask if they have probably cause, but that seems like it could be anything.
posted by ignignokt at 10:08 AM on August 29, 2012

Detaining you for questioning is not the same as arresting you, for which they need a charge to arrest you on, at least in my jurisdiction. My understanding is that if you are detained for questioning, you are free to leave up until the point that they arrest you on a charge. Being detained is not equal to being arrested. Arrest means you go get fingerprinted and mugged, usually, even if they release you on your own recognizance directly afterward. Being detained means that they have questions to ask you, but not enough proof to charge you. Without a charge, there is no arrest.
posted by Meep! Eek! at 10:34 AM on August 29, 2012

Response by poster: Ah, thanks. But if you can leave detention at any time before arrest - before they have a charge - how can they hold you until you are charges, as happydaz mentioned?

Maybe you get thrown in jail as punishment for asserting your rights, and you stick around in jail a few days until you are formally charged with a crime and the public defender comes to see you.
posted by ignignokt at 11:04 AM on August 29, 2012

Because there are several issues at play here: 1) The initial police encounter, 2) a decision by the police officer whether there is probable cause a crime was committed, 3) if so, whether to then put that person in custody or give them a citation to appear to an out-of-custody court date, 4) a decision by a prosecutor whether or not to file formal charges based on the officer's probable cause determination, and if so, 5) a formal arraignment in court based on that charge, which may take place while the person is in custody, and may or may not entail an attorney being present (sounds like in New York there is an attorney present, in Oregon, there is a stand-by attorney there just to make sure you don't say anything stupid when the judge asks you if you want a lawyer and whether you can make bail.)

The "thrown in jail as punishment for asserting your rights" is cynical on my part, but it presumes that A) the cop has probable cause to believe you committed a crime and B) then gets to make a decision on whether to take you to jail on the charge and await further action by a prosecutor, or to give you an out-of-custody arraignment date and not take you to jail. This implicit threat is usually how police obtain consent to search my client's cars, belongings, person, and why they spill their guts then and there.
posted by Happydaz at 11:41 AM on August 29, 2012

Best answer: Here's some advice from the Ohio Bar: Your Rights if Questioned, Stopped or Arrested by the Police. I don't know to what extent (if any) the rules in other U.S. states differ.
posted by Mr.Know-it-some at 2:11 PM on August 29, 2012

Response by poster: Thanks, Happydaz. Your firsthand perspective has been very helpful. So, to sum it up (and please correct me if I'm wrong):

- If you are detained for questioning but not arrested, you can leave at any time.
- If you are arrested, then they have to present probable cause, and you can be detained until arraignment, if they want, but you do not have to answer questions.
posted by ignignokt at 9:00 PM on August 29, 2012

Best answer: Yes. And arraignment is a time-specific procedure set up so that people don't languish in jail indefinitely. In some cases/states, you can post bail before arraignment, and in other situations, you have to wait until arraignment.

In the meantime, not only do you have the right to not answer any questions, but once you invoke your Miranda rights unequivocally, then all police questioning of you MUST cease.
posted by Happydaz at 9:56 AM on August 30, 2012

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