When States Must Provide Counsel

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The U.S. Supreme Court held in Gideon v. Wainwright that states have a constitutional obligation under the Fourteenth Amendment to provide Sixth Amendment lawyers to the indigent accused. Early on, Gideon was presumed to apply only to felonies. The Supreme Court has since expressly clarified that the Sixth Amendment requires the appointment of counsel for the poor threatened with jail time in misdemeanors where jail time is actually imposed and in misdemeanors with suspended sentences, in addition to felonies. Additionally, children in delinquency proceedings, no less than adults in criminal courts, are entitled to appointed counsel when facing the loss of liberty.

In 2008, the United States Supreme Court reaffirmed in Rothgery v. Gillespie County that the right to counsel attaches when “formal judicial proceedings have begun.” For a person who is arrested, the beginning of formal judicial proceedings is at “a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction,” without regard to whether a prosecutor is aware of the arrest. For all defendants, the commencement of prosecution, “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment,” signals the beginning of formal judicial proceedings.

The Rothgery Court carefully explained, however, that the question of whether the right to counsel has attached is distinct from the question of whether a particular proceeding is a “critical stage” at which counsel must be present as a participant. “Once attachment occurs, the accused at least is entitled to the presence of appointed counsel during any ‘critical stage’ of the postattachment proceedings . . ..” In other words, according to the Court, the Constitution does not necessarily require that defense counsel be present at the moment the right to counsel attaches, but from that moment forward, no critical stage in a criminal case can occur unless the defendant is represented by counsel or has made an informed and intelligent waiver of his right to counsel.

Over the decades, the Supreme Court has inch-by-inch delineated many events in cases as being critical stages, although it has never purported to have capped the list of events that may fall into this category. Events that are definitely critical stages are:

The U.S. Supreme Court has also held that the lawyer a state provides to represent an indigent person must be effective, as we explain in the next section.