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Amdt6.6.3.1 Overview of When the Right to Counsel Applies

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.

As a result of Gideon v. Wainwright,1 the Sixth Amendment right to counsel applies at criminal trials, regardless of whether a given trial is federal or state, or whether the counsel is retained or appointed.2 As the Court in Gideon explained, the “right of one charged with crime to counsel” is “fundamental and essential.” 3 A more complicated question is the extent to which the Sixth Amendment right to counsel applies in contexts beyond the trial itself, such as preliminary criminal proceedings. As a general matter, the Court has explained that the “the Sixth Amendment right to counsel is triggered ‘at or after the time that judicial proceedings have been initiated . . . ‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” 4 In other words, the Sixth Amendment right to counsel does not begin until “the initiation of adversary judicial criminal proceedings.” 5 Even once adversary judicial criminal proceedings begin, the Sixth Amendment right to counsel applies only to critical stages of criminal prosecutions.6 In a number of cases, the Court has examined the extent to which the Sixth Amendment7 right to counsel applies in contexts including pretrial judicial proceedings,8 custodial interrogations,9 and lineups and other identification situations,10 among others.11

372 U.S. 335 (1963). For further discussion of Gideon, see Amdt6.6.2.2 Modern Doctrine on Right to Have Counsel Appointed. back
See, e.g., Wheat v. United States, 486 U.S. 153, 158 (1988) ( “[W]e have held that the Sixth Amendment secures the right to the assistance of counsel, by appointment if necessary, in a trial for any serious crime.” ). back
Gideon, 372 U.S. at 344. back
Fellers v. United States, 540 U.S. 519, 523 (2004) (quoting Brewer v. Williams, 430 U.S. 387, 398 (1977)). back
Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion). back
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” ). back
The Court’s pre-Gideon cases often spoke expansively of the right to retain counsel, but as a matter of due process rather than of the Sixth Amendment. Thus, in Chandler v. Fretag, when a defendant appearing in court to plead guilty to house-breaking was advised for the first time that, because of three prior convictions, he could be sentenced to life imprisonment as a habitual offender, the court’s denial of his request for a continuance to consult an attorney was a violation of his Fourteenth Amendment due process rights. 348 U.S. 3, 5, 10 (1954). “Regardless of whether petitioner would have been entitled to the appointment of counsel, his right to be heard through his own counsel was unqualified. A necessary corollary is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth.” Id. at 9, 10; see also Reynolds v. Cochran, 365 U.S. 525, 530 (1961) ( “[W]e think it clear that this case must be reversed for a hearing in order to afford petitioner an opportunity to prove his allegations with regard to another constitutional claim-that he was deprived of due process by the refusal of the trial judge to grant his motion for a continuance in order that he might have the assistance of the counsel he had retained in the proceeding against him.” ); House v. Mayo, 324 U.S. 42, 46 (1945) (per curiam) (concluding that trial court had deprived defendant of “constitutional right to a fair trial” by “forc[ing] him to plead to the information without the aid and advice of his counsel, whose presence he requested” ); Hawk v. Olson, 326 U.S. 271, 278 (1945) (determining that defendant had potentially “set out a violation of the Fourteenth Amendment” in claiming that in murder trial he (1) “had no advice of counsel prior to the calling of the jury” and (2) lacked assistance of counsel in moving “for continuance to examine the charge and consult counsel” ). back
Amdt6.6.3.2 Pretrial Judicial Proceedings and Right to Counsel. back
Amdt6.6.3.3 Custodial Interrogation and Right to Counsel. back
Amdt6.6.3.4 Lineups and Other Identification Situations and Right to Counsel. back
Amdt6.6.3.6 Noncriminal and Investigatory Proceedings and Right to Counsel. back