RIGHT TO COUNSEL

When Does the Right to Counsel Attach in Arizona?

In Arizona the right to counsel attached earlier than in federal cases.

Rule 6.1 of the Arizona Rules of Criminal Procedure provides the right to counsel includes:

• The right to be represented by counsel includes the right to consult privately with counsel, or the counsel’s agent, as soon as feasible after a defendant has been taken into custody, at reasonable times after being taken into custody…

Accordingly, the government may not, without justification, prevent access between a defendant and his lawyer, in person or by telephone, when such access would not unduly delay the DUI investigation and arrest.

Important Right to Counsel Cases

• Powell v. Alabama, 287 U.S. 45 (1932) – the Supreme Court ruled that “in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him.”
• Johnson v. Zerbst, 304 U.S.458 (1938) – the Supreme Court ruled that in all federal cases, counsel would have to be appointed for defendants who were too poor to hire their own.
• Gideon v. Wainwright, 372 U.S. 335 (1963)
• Kunzler v. Superior Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987) – Despite the two-hour window, a defendant is entitled to the advice of counsel when in custody, “and the state may not unreasonably restrict that right.”
• Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964)
• Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, (1964) – When counsel has been retained for a prisoner, the government cannot deny the lawyer reasonable access to the client, nor may they ignore (the lawyer’s) request that he be allowed to confer with his client prior to, if not during, the interrogation.