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Do I Have the Right to an Attorney?

The words we all hear on television and the movies tell us it is so. Often referred to as the reading of the rights, the Miranda warnings require the police to tell someone being questioned that:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford an attorney, one will be provided for you at public expense.

If you do not have the resources to hire an attorney, then you must either fill out an affidavit or appear before the court to establish indigency. Meanwhile, and even if you hire an attorney, the United States Supreme Court allows the police to question suspects if they waive their Miranda rights.

Keeping quiet may not be enough. Expressing the desire to have an attorney may not be enough. Even hiring an attorney may not be enough . The police can still approach you. If you waive or give up your right to the presence of an attorney and let them talk to you, then they can use what you say against you.

Until recently, if a suspect asked for an attorney at initial appearance, then the police could not no longer question him. The United Supreme Court just overruled that standard, however, in Montejo v. Louisiana, 129 U.S. 2079 (2009).

Many attorneys are preparing a form for clients to sign instructing the police that they do not want to be questioned unless their attorney is present. An example of such a form follows.

This brings us back to what a suspect can and should say. “I want an attorney and I don’t want to talk to you without an attorney.” These words must be uttered over and over, each and every time the police approach.
If you get ant attorney, either by having the Court appoint an attorney or by hiring an attorney, your attorney may provide you with a form to sign asserting your right to an attorney and your right not to make a statement. There is no substitute, however, for your own individual assertion of these rights under the Fifth and Sixth Amendment rights and the similar rights guaranteed by the Mississippi Constitution.

The best way to do this is to say, nothing, but I want an attorney and I don’t want to talk to you without an attorney. Say it loud and often and say it every time the police try to question you.