Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

While the Supreme Court has established a right to counsel,1 it has recognized some limitations to that right. In Rothgery v. Gillespie County, the Court noted that the “ Sixth Amendment right of the ‘accused’ to assistance of counsel in ‘all criminal prosecutions’ is limited by its terms: ‘it does not attach until a prosecution is commenced.’” 2 Pretrial judicial proceedings may amount to the commencement of prosecution, and in the 2008 case Rothgery,3 the Court clarified that even a preliminary hearing where no government prosecutor is present can trigger the right to counsel. In determining whether the right to counsel applies to a particular pretrial judicial proceeding, the Court generally has considered whether the proceeding amounts to a “critical stage” in a criminal prosecution.4 This inquiry may be traced back to dicta in Powell v. Alabama,5 noting that “during perhaps the most critical period of the proceedings . . . that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation [are] vitally important, the defendants . . . [are] as much entitled to such aid [of counsel] during that period as at the trial itself.”

The Court expanded on this language in Hamilton v. Alabama,6 where the Court noted that arraignment under Alabama state law was a “critical stage.” The Court reached that conclusion because in Alabama arraignment was the stage where certain defenses, pleas, and motions had to be made.7 In White v. Maryland,8 the Court set aside a conviction obtained at a trial at which the defendant’s plea of guilty, entered at a preliminary hearing at which he was without counsel, was introduced as evidence against him at trial. Citing to Hamilton, the Court explained that “[w]hatever may be the normal function of the ‘preliminary hearing’ under Maryland law, it was in this case as ‘critical’ a state as arraignment under Alabama law” because the defendant “entered a plea before the magistrate and that plea was taken at a time when he had no counsel.” 9

Subsequently, in Coleman v. Alabama,10 the Court identified a preliminary hearing as a “critical stage” necessitating counsel even though the only functions of the hearing were to determine probable cause to warrant presenting the case to a grand jury and to fix bail, and although no defense was required to be presented at that point and nothing occurring at the hearing could be used against the defendant at trial. The Court emphasized the practical difference a lawyer could have made at the preliminary hearing.11 In particular, the Court hypothesized that a lawyer might, by skilled examination and cross-examination, expose weaknesses in the prosecution’s case and thereby save the defendant from being required to face trial.12 Further, the Court speculated that a lawyer could preserve testimony he elicited at the hearing for use in cross-examination at trial and impeachment purposes; better prepare for trial by discovering as much as possible of the prosecution’s case against defendant; and influence the court in such matters as bail and psychiatric examination.13

Footnotes

1

Amdt6.6.3.1 Overview of When the Right to Counsel Applies.

2

Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191, 198 (2008) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175, (1991)).

3

554 U.S. at 194–95, 198 (right to appointed counsel attaches even if no public prosecutor, as distinct from a police officer, is aware of that initial proceeding or involved in its conduct).

4

See, e.g., Hamilton v. Alabama, 368 U.S. 52, 54 (1961) (determining whether right to counsel applied in arraignment by examining whether it amounts to a “critical stage in a criminal proceeding” ).

5

287 U.S. 45, 57 (1932).

6

368 U.S. at 53, 54.

7

Id. (listing the defense of insanity, pleas in abatement, and motions to quash, as examples of actions tied to the arraignment stage under Alabama law).

8

373 U.S. 59, 59–60 (1963) (per curiam).

9

Id. at 60.

10

399 U.S. 1, 8 (1970) (plurality opinion). Inasmuch as the role of counsel at the preliminary hearing stage does not necessarily have the same effect upon the integrity of the fact-finding process as the role of counsel at trial, Coleman was subsequently denied retroactive effect. Adams v. Illinois, 405 U.S. 278, 285 (1972) (plurality opinion). Hamilton and White, however, were held to be retroactive. Arsenault v. Massachusetts, 393 U.S. 5 (1968) (per curiam).

11

In doing so, Coleman appears to track the logic of several pre-Gideon cases in which a defendant was entitled to counsel if a lawyer might have made a difference. See Chewning v. Cunningham, 368 U.S. 443, 447 (1962) (concluding that counsel was necessary given the complexity of issues raised in underlying prosecution and the significant “potential prejudice resulting from the absence of counsel” ); Carnley v. Cochran, 369 U.S. 506, 507, 512–13 (1962) (observing that “[t]he assistance of counsel might well have materially aided the petitioner in coping with several aspects of the case” and therefore holding that “petitioner’s case was one in which the assistance of counsel, unless intelligently and understandingly waived by him, was a right guaranteed him by the Fourteenth Amendment” ); Hudson v. North Carolina, 363 U.S. 697, 703 (1960) (explaining the need for counsel in circumstances of underlying prosecution and finding that lack of counsel amounted to deprivation of due process under the Fourteenth Amendment).

12

Coleman, 399 U.S. at 9.

13

Id.