Introduction
The right to counsel is a fundamental component of the criminal justice system, designed to ensure that individuals accused of crimes are afforded fair legal representation and protection against abuses of state authority. In New York, this right is interpreted more expansively than under the federal Constitution[i], attaching at earlier stages of criminal proceedings and providing greater safeguards for defendants[ii]. New York courts have long emphasized the practical and procedural necessity of robust legal representation to maintain fairness and justice. This paper explores in summary the origins and evolution of New York’s interpretation of the right to counsel, provides background on its broader application, and discusses how the law is implemented today.
Background
The right to counsel in the United States is enshrined in the Sixth Amendment to the Constitution, which guarantees legal representation in criminal prosecutions. Under federal law, this right attaches only at the initiation of formal adversarial proceedings, such as arraignment or indictment, and protects individuals from being tried without adequate legal assistance. However, New York’s Constitution, particularly Article 1, Section 6, provides more expansive protections, reflecting the state’s commitment to a heightened standard of due process. This provision ensures that suspects and defendants have access to legal representation at every critical stage of the criminal process, effectively counterbalancing the power of the state.
Historically, New York courts have played a leading role in broadening the scope of the right to counsel. Landmark decisions such as People v. Di’Biasi (1964)[iii] and People v. Meyer (1965)[iv] extended protections far beyond federal precedents. In Di’Biasi, the New York Court of Appeals held that a suspect could not be interrogated without counsel present once formal charges were filed, emphasizing the need for legal representation during critical stages of the criminal process. Similarly, in Meyer, the court ruled that defendants must be provided with counsel during arraignment, reflecting the state’s recognition of the potential for procedural disadvantage without legal assistance.
Over time, these decisions established the principle that New York’s right to counsel attaches indelibly at three key points: (1) when a suspect requests an attorney during custody, (2) when formal criminal proceedings begin with the filing of an accusatory instrument, and (3) when counsel is retained or assigned. These rules were designed to ensure that defendants are not coerced or misled in the absence of legal advice, underscoring the practical importance of having an attorney at every stage of the justice process.
The Law as It Stands Now
Under current New York law, the right to counsel is both broader and more protective than the federal standard. Once the right attaches, it becomes indelible, meaning it cannot be waived without the presence of an attorney. This principle was cemented by cases such as People v. Donovan (1978)[v] and People v. Arthur (1977)[vi], which established that police must cease questioning a suspect when counsel has been retained or appointed, and any waiver of rights must occur in the presence of that attorney. These rulings reflect New York’s commitment to safeguarding defendants against potential abuses or misunderstandings during interactions with law enforcement.
A unique feature of New York’s right to counsel is its applicability before formal charges are filed. In situations where an attorney has entered the case—whether retained by the defendant or assigned by the court—the right to counsel attaches even during pre-charge custodial interrogations. This preemptive protection reflects the state’s recognition of the risks posed by interrogations conducted without legal representation.
Despite its broad scope, the right to counsel in New York is not without limitations. For instance, the derivative right to counsel, established in People v. Bartolomeo (1981)[vii], which prohibited police from questioning a suspect about unrelated charges once they were represented by counsel, was overturned in People v. Bing (1990)[viii]. The court in Bing held that the derivative right was impractical and overly broad, as it unnecessarily restricted legitimate police investigations. Under current law, police may question a suspect about unrelated matters as long as no attorney-client relationship exists for those specific charges.
Furthermore, New York adheres to a nuanced approach to balancing defendants’ rights with law enforcement interests. For example, the right to counsel does not extend to non-critical stages of the criminal process or to administrative procedures that do not involve substantive legal issues. However, at all critical stages—such as arraignment, custodial interrogation, and plea negotiations—the right to counsel remains robust and enforceable.
Finally, the implementation of the right to counsel in New York is supported by rigorous enforcement mechanisms. Courts routinely suppress statements obtained in violation of this right, ensuring that law enforcement adheres to legal standards. These protections reinforce the foundational principles of fairness and equality that underpin New York’s criminal justice system.
By interpreting the right to counsel more broadly than federal law, New York ensures that defendants are afforded meaningful legal representation at critical junctures of the criminal process. This expanded protection reflects the state’s commitment to maintaining procedural fairness and safeguarding individual rights in the face of state authority.
Debate
The Author would like to argue that at any detainment, the right to counsel should perceivably attach As addressed, in New York the right to counsel indelibly attaches to a matter on any one of the three triggering events. Two definitions taken from Black’s Law Dictionary[ix] are supportive of this notion that any detainment may be construed as custody.
Definitions:
- Detainee: A person held in custody, confined, or delayed by an authority such as law enforcement or government.
- Detention: The act or instance of holding a person in custody, confinement, or compulsory delay
Based on these definitions it is plausible to argue that first, if the individual is only detained this detainment is an actual custody no matter how temporary it may be, here the right to counsel should attach, and even if the detainee does not ask for counsel, the right should apply and attach. Second, as already established as soon as the right to counsel attaches it may not be waived without an attorney present.
Quick Reference
Below is a quick reference for, and explanation of, every possible time a person has an indelible right to counsel under the New York provision:
- Access to Counsel: Individuals have the right to consult with an attorney before and during any questioning by law enforcement. This allows them to seek legal advice and representation to protect their rights and interests during the criminal justice process.
- Notification of Right to Counsel: Upon arrest or custodial interrogation, law enforcement must inform the individual of their right to consult with an attorney. This notification is typically provided through a Miranda warning, which includes the right to remain silent and the right to an attorney.
- Arrest or Custodial Interrogation: Individuals have the right to consult with an attorney when they are arrested or subjected to custodial interrogation by law enforcement. This includes the right to have an attorney present during any questioning.
- Arraignment: Individuals have the right to legal representation at their arraignment, which is the initial court appearance where charges are formally presented, and the defendant is informed of their rights and enters a plea.
- Pretrial Hearings: Individuals have the right to legal representation at pretrial hearings, such as bail hearings, suppression hearings, and hearings to address pretrial motions filed by the defense or prosecution.
- Trial: Individuals have the right to legal representation at trial, where they are afforded the opportunity to present evidence, cross-examine witnesses, and make legal arguments in their defense.
- Sentencing: Individuals have the right to legal representation at sentencing proceedings, where the court determines the appropriate punishment for the convicted defendant.
- Appeals: Individuals have the right to legal representation during the appeals process, where they can challenge the legality or fairness of their conviction or sentence before a higher court.
- Post-Conviction Proceedings: Individuals have the right to legal representation in post-conviction proceedings, such as motions to vacate a conviction, habeas corpus petitions, or other legal challenges to the validity of their conviction or sentence.
- Probation or Parole Violation Hearings: Individuals have the right to legal representation at hearings to address alleged violations of probation or parole conditions, where the court determines whether to revoke or modify the individual’s probation or parole status.
- Other Critical Stages of Proceedings: In addition to the specific instances listed above, individuals have the right to legal representation at any other critical stages of criminal proceedings where their rights or interests may be at stake.
[i] N.Y. CONST. art. I, § 6; (The New York State Constitution states that “[i]n any trial, in any court, whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions. . . nor shall he be compelled in any criminal case to be a witness against himself”.)
[ii] People v. Hobson, 39 N.Y.2d at 483-84 (The New York Court of Appeals, New York extends protections to defendants during pre-trial.)
[iii] State vs DiBiasi 7 N.Y.2d; (The controversy here was at what point in a formal proceeding is the attachment of the suspect’s right to counsel attached).
[iv] People v Meyer 11 N.Y.2d 162; (Any statement by an accused post arraignment prior indictment, without counsel, is inadmissible.)
[v] People v. Donovan, 13 N.Y.2d 148
[vi] People v. Arthur, 22 N.Y.2d 325; (When a lawyer has entered a proceeding, Law Enforcement may not question the defendant without counsel unless affirmative waiver is given in the presence of said attorney.)
[vii] People v. Bartolomeo, 423 N.E.2d 371, overruled by Bing, 558 N.E.2d at 1017, not specifically the “derivative right” until referred to by subsequent cases.
[viii] People v Bing, 558 N.E.2d
[ix] Garner, (2019) Black’s law dictionary Deluxe Page 562, 11th edition
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