Judicial Proceedings Before Trial.

Even a preliminary hear-ing where no government prosecutor is present can trigger the right to counsel.384 “[A] criminal defendant’s defendant’s initial appearance before a judicial officer, where he learns the charges against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.”385 “Attachment,” however, may signify “nothing more than the beginning of the defendant’s prosecution [and] . . . not mark the beginning of a substantive entitlement to the assistance of counsel.”386 Thus, counsel need be appointed only “as far in advance of trial, and as far in advance of any pre-trial ‘critical stage,’ as necessary to guarantee effective assistance at trial.”387

Dicta in Powell v. Alabama,388 however, indicated 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, thoroughgoing 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.” This language was gradually expanded upon and the Court developed a concept of “a critical stage in a criminal proceeding” as indicating when the defendant must be represented by counsel. Thus, in Hamilton v. Alabama,389 the Court noted that arraignment under state law was a “critical stage” because the defense of insanity had to be pleaded then or lost, pleas in abatement had to be made then, and motions to quash on the ground of racial exclusion of grand jurors or that the grand jury was improperly drawn had to be made then. In White v. Maryland,390 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. Finally, in Coleman v. Alabama,391 the Court denominated 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; 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 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 bound over, and could in any event preserve for use in cross-examination at trial and impeachment purposes testimony he could elicit at the hearing; he could discover as much as possible of the prosecution’s case against defendant for better trial preparation; and he could influence the court in such matters as bail and psychiatric examination. The result seems to be that reached in pre-Gideon cases in which a defendant was entitled to counsel if a lawyer might have made a difference.392


Rothgery v. Gillespie County, 128 S. Ct. 2578 (2008) (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). back
128 S. Ct. at 2592. back
128 S. Ct. at 2592 (Alito, J., concurring). Justice Alito’s concurrence, joined by Chief Justice Roberts and Justice Scalia, was not necessary for the majority opinion in Rothgery, but the majority noted that it had not decided “whether the 6-month delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights, and have no occasion to consider what standards should apply in deciding this.” Id. back
128 S. Ct. at 2595 (Alito, J. concurring). back
287 U.S. 45, 57 (1932). back
368 U.S. 52 (1961). back
373 U.S. 59 (1963). back
399 U.S. 1 (1970). Justice Harlan concurred solely because he thought the precedents compelled him to do so, id. at 19, while Chief Justice Burger and Justice Stewart dissented. Id. at 21, 25. Inasmuch as the role of counsel at the preliminary hearing stage does not necessarily have the same effect upon the integrity of the factfinding process as the role of counsel at trial, Coleman was denied retroactive effect in Adams v. Illinois, 405 U.S. 278 (1972). Justice Blackmun joined Chief Justice Burger in pronouncing Coleman wrongly decided. Id. at 285, 286. Hamilton and White, however, were held to be retroactive in Arsenault v. Massachusetts, 393 U.S. 5 (1968). back
Compare Hudson v. North Carolina, 363 U.S. 697 (1960), with Chewning v. Cunningham, 368 U.S. 443 (1962), and Carnley v. Cochran, 369 U.S. 506 (1962). back