The foundational protections found in the Fifth and Sixth Amendments to the United States Constitution establish the right to counsel as perhaps the most influential safeguard within the Bill of Rights because an attorney serves as the primary shield through which all other legal protections are maintained. It is the legal representative who identifies threats to a client’s freedom, offers privileged guidance, and fights for their interests during a trial.
When someone is suspected of committing a violation, the most effective defense they can have is a seasoned lawyer. At Mangan Law, our team has defended service members throughout the military justice system who are experiencing investigations, courts-martial, and various forms of discipline for serious offenses under the Uniform Code of Military Justice (UCMJ).
If you or someone in your family is going through a court-martial or facing other negative actions, contact Sean Mangan today to discuss your situation. Lieutenant Colonel Sean Mangan, U.S. Army (Retired), brings 30+ years of experience in military and criminal justice systems and has handled 200+ recent cases across all military branches.
Constitutional Protections Under the Fifth Amendment
The Fifth Amendment ensures that no person is forced to act as a witness against themselves in a criminal matter.
Courts have determined that this protection against self-incrimination includes two specific parts which are the right to stay silent and the right to have an attorney present during questioning before a trial begins. Because being questioned by law enforcement is naturally an intimidating experience, officials must tell a suspect they have the right to talk to a lawyer and have that lawyer stay with them during the interview.
To use this right, a suspect has to ask for an attorney clearly enough so that a typical police officer in that moment would recognize the request. If the request for a lawyer is obvious, the police have to stop the interview immediately.
However, if the statement is vague or does not clearly ask for a lawyer, the officers are allowed to keep asking questions.
Once a person has asked for a lawyer while being held for questioning, they do not give up that right just by answering more questions that the police start later. If a suspect says they only want to deal with the authorities through a lawyer, the police cannot start questioning them again until a lawyer is provided unless the suspect is the one who starts a new conversation or exchange.
Legal Representation Rights Under the Sixth Amendment
The Sixth Amendment guarantees that in every criminal prosecution, the person accused has the right to have a lawyer help with their defense. While the Fifth Amendment focuses on rights during questioning, the Sixth Amendment makes sure an accused person has effective legal help during the actual criminal proceedings.
This amendment does more than just guarantee help at trial; it also gives an accused person the power to pick who they want to hire. This is where a civilian defense attorney becomes a major factor. In the military system, a service member accused of a crime has a total right to be represented by a detailed military lawyer, a specific military lawyer of their choice if they are available, or a civilian lawyer they hire themselves.
Mangan Law often hears from service members who are not happy with their assigned military help and want to hire a civilian lawyer to represent them at an administrative separation board or a court-martial. Even if a military lawyer is doing a decent job, if the accused is not allowed to have the specific lawyer they want without a good reason, their constitutional rights might be at risk.
It is important to know that the Sixth Amendment right is tied to specific offenses and only starts once formal charges are made. In a military setting, this right typically begins when charges are preferred.
Excluding Evidence Gained Without a Lawyer
The Military Rules of Evidence make sure that any statements taken by violating an accused person’s rights to a lawyer cannot be used in court.
According to M.R.E. 305, if a person suspected of a crime is being questioned while in custody and asks for a lawyer, any statement made after that request is not allowed to be used against them. This also applies to any evidence the police found because of that statement.
If an accused person has already had charges preferred against them and is questioned by law enforcement or their agents about those charges, the same rules apply. If they have asked for or already hired a lawyer, their statements cannot be used in court unless that lawyer was actually there.
To make sure these statements are kept out of a trial, the attorney for the accused must spot where the rights were ignored and file a formal request to have the judge exclude that evidence.
Choosing an Attorney is Not an Admission of Guilt
Service members who are being investigated sometimes talk to investigators because they worry that asking for a lawyer will make them look like they are hiding something. This is almost always a mistake that leads to more trouble.
The rules for military evidence specifically stop the government from using the fact that you asked for your rights against you at a trial. The prosecution is not allowed to tell a jury that an accused person stayed silent, refused to answer questions, or asked to speak with a lawyer.
M.R.E. 301 makes it clear that exercising your rights under the Fifth Amendment or Article 31 is not evidence that can be used against you. To stay protected, a service member who is being investigated should always ask to speak with a lawyer before they say anything at all to law enforcement.
Reach Out to Mangan Law
If you are the subject of an investigation or are going through a court-martial, talking to a lawyer with deep experience is the most helpful thing you can do. The most basic rule is to avoid talking to anyone until your lawyer is present. Sean Mangan is ready to defend your career and your rights.
Call (360) 908-2203 today to schedule a time to talk about your case.