Symposium-The Massachusetts Constitution of 1780
Over forty years’ worth of popular culture has led most Americans to believe that they have a “right to an attorney” upon arrest. We have watched this familiar scene unfold in countless movies and television shows: the police close in on the lone (and undoubtedly guilty) suspect, pin him against a wall, slap on the cuffs, and triumphantly recite his “Miranda warnings,” which apparently include the right to counsel. Technically, officers here are referring to a suspect’s limited Fifth Amendment right, upon “clearly” and “unambiguously” invoking it, to the presence of an attorney before custodial interrogation by the police. This idea would probably strike most people as extremely sensible—that, upon arrest, you should have the opportunity to speak with a lawyer even if you cannot afford to hire one. However, the “right” guarantees neither access to a lawyer to explain the procedural complexities of a criminal case, nor unbiased, professional advice on whether it is prudent to waive any constitutional protections. Rather, Miranda only guarantees the right, once affirmatively invoked, to not be asked questions by the police outside the presence of an attorney. As a practical reality in Massachusetts, that opportunity rarely ripens until after an arrestee is transported to court and a lawyer is appointed to represent him. . .