§ 25.03 Procedural Initiation of the Right to Counsel: Adversary Judicial Proceedings

• Jurisdiction: United States

§ 25.03 Procedural Initiation of the Right to Counsel: Adversary Judicial Proceedings

In Brewer v. Williams,⁴¹ the Court stated:

Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him — "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."⁴²

Such proceedings include "the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty."⁴³

Despite the non-limiting language in the preceding indented quotation — "whatever else it may mean" and "the right . . . means at least" — the Court, with one very narrow exception,⁴⁴ has shut the door on the possibility that the Sixth Amendment right-to-counsel provision might apply before judicial proceedings begin.

This threshold requirement is justified on the basis of the language of the Sixth Amendment itself, which provides that "in all criminal prosecutions . . . the accused [is entitled] to have the assistance of Counsel for his defence." The Supreme Court has stated that it is when the "government . . . use[s] the judicial machinery to signal a commitment to prosecute"⁴⁵ that the "suspect" becomes the "accused." It is at this point, and not before, that the individual is "faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law."⁴⁶ It is at this time, therefore, that the "accused" needs to prepare a "defense."

This interpretation of the Sixth Amendment has been disputed. Some have argued that the arrest — an earlier procedural stage — should be understood as the commencement of the prosecution.⁴⁷ However, Justice Clarence Thomas has argued in the other procedural direction. His reading of Blackstone suggests to him that the term "criminal prosecution" at the time of the framing of the Sixth Amendment referred to "instituting a criminal suit" (Blackstone's language) "by filing a formal charging document — an indictment, presentment, or information — upon which the defendant was to be tried in a court with power to punish the alleged offense."⁴⁸If this reading of the Sixth Amendment were accepted by a majority of the Supreme Court,⁴⁹ it would notably mean that a person does not have a Sixth Amendment right to counsel at her...