Do I Have the Right to Counsel in SC?

If you have been arrested or if you are under investigation, do not speak to police or investigators until you have consulted with your criminal defense lawyer.

You have the right to effective counsel to assist in your defense, and you have the absolute right to remain silent in the face of police questioning. You have the right to counsel before questioning - the right to retain the counsel of your choice and the right to appointed counsel if you cannot afford to hire an attorney.

It means that you have the right to have an attorney represent you any time you are charged with a criminal offense in SC. This means:

1. You have the right to have an attorney of your choice if you can afford to pay them; and
2. The government must pay for your attorney when you cannot afford it.

If you can afford to retain counsel, you have the right to choose who represents you. Absent extraordinary circumstances, the court cannot intervene and remove your attorney from your case or tell you that you must retain a particular attorney.

Your prosecutor may prefer that your attorney is a go-along, get-along type who will not “rock the boat” and who will guide you into a nice, easy, guilty plea. But, thankfully, the prosecutor doesn’t get a say in the matter.

There are times when the prosecutor or the judge may want to get rid of your attorney, but it’s not up to them. Denial of your right to counsel of your choice is a violation of your Sixth Amendment right to counsel and, if you are convicted, your case may be overturned on appeal.

The Sixth Amendment guarantee of effective counsel means that, if you cannot afford representation, the government must provide a defense lawyer for you. Note that you do not have the right to counsel of your choice if your counsel is appointed - in most cases, you will be appointed a public defender or contract attorney and you have to accept the attorney that you are given.

Does this mean you are always entitled to have an attorney appointed? Not necessarily:

• You must qualify for appointed counsel based on your income;
• In most cases, you must go to the public defender’s office, fill out an application, and pay a small fee;
• The U.S. Supreme Court has said that you are entitled to counsel only if you are sentenced to jail – this means that, if you are charged with a minor offense and the court intends to sentence you to a fine only, they do not have to give you an attorney; and
• Historically, South Carolina has refused to appoint public defenders in magistrate or municipal court cases – even when judges were sentencing defendants to jail time. This is changing, and, hopefully, SC Courts will follow the law and provide appointed counsel in all future cases where defendants may receive a sentence of jail time.

If you are contacted by law enforcement, you may want to explain your side of things or try to help yourself - there are some situations where this is the right thing to do, but never before you have consulted your SC criminal defense attorney. If you are being questioned by police, they are probably not trying to help you; they are gathering evidence to use against you.

Many police are trained in how to interrogate and obtain a confession from you. They can and often do lie to you about evidence that they have or statements that they have from witnesses or co-defendants. They might minimize the seriousness of the charges, tell you that they understand why you did it, tell you that they only want information on another person, or tell you things will go easier on you if you talk to them. Some interrogation techniques used by law enforcement have been proven to result in false confessions.

Once you request an attorney, law enforcement should stop asking questions. If they do not, keep requesting an attorney and say nothing else until they stop talking to you. Do not let a law enforcement officer tell you that you do not need a lawyer - politely insist on your constitutional right to counsel.

If you have already talked with law enforcement - STOP, until you have consulted with your attorney.

There’s a short list of things that you can and should say to the police. As a general rule, say nothing. The exceptions to this rule include:

• “Am I free to go?”
• “Am I under arrest?”
• And, “I want my attorney.”

Cop: Why would you want your attorney, unless you have something to hide?

You: I want my attorney.

Cop: I can help you right now if you cooperate with us.

You: I want my attorney.

Cop: Your buddy just spilled the beans, and you are going away for life if you don’t talk to us right now.

You: I want my attorney.

Be respectful, be polite, but do not get dragged into conversation, do not ask the police questions, and say nothing other than “I want my attorney.”

We must insist on exercising our rights under the constitution - the right not to incriminate ourselves, the right to be free from unreasonable searches and seizures, the right to effective assistance of counsel, the right to proof beyond a reasonable doubt, and the right to a trial by jury.

If we do not insist on exercising our rights under the constitution, and if attorneys do not insist on enforcing our rights under the constitution, our rights under the constitution will continue to be eroded until they are no more.

If you have been arrested or believe that you are under investigation in SC, call the Thompson & Hiller Defense Firm at (843) 444-6122 or contact us online for a free consultation.