§ 28.02 When the Right to Counsel Applies

• Jurisdiction: North Carolina

§ 28.02 When the Right to Counsel Applies³

The Sixth Amendment right to counsel applies only after the commencement of adversarial judicial proceedings; the Court has concluded that this commencement starts the "criminal prosecution" for right-to-counsel purposes.⁴

Once the right-to-counsel has attached, it applies not only at the trial itself but also at any "critical stage" of the prosecution.⁵ Importantly, however, whether the right to counsel has "attached," and whether a particular pretrial event constitutes a "critical stage," are distinct questions. The right to counsel attaches "when the government has used the judicial machinery to signal a commitment to prosecute," but immediate appointment of counsel is not required in the absence of a finding that the post-attachment stage is a "critical" one.⁶

The Court has used different phrases to describe what constitutes a critical stage. Its definitions include "those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel"⁷ and "any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial."⁸ The Court has summarized its "critical stage" definition from previous cases as those "proceedings between an individual and agents of the State . . . that amount to 'trial-like confrontations,' at which counsel would help the accused 'in coping with legal problems or . . . meeting his adversary.'"⁹

Applying this test, the Court has found that pretrial interrogation,¹⁰ a pretrial lineup,¹¹ a preliminary hearing,¹² an arraignment at which rights may be lost (for example, the ability to plead not guilty by reason of insanity),¹³ and a pretrial psychiatric exam¹⁴ all constitute "critical stages," requiring the presence of counsel. The Court has also held that the right to counsel "extends to the consideration of plea offers that lapse or are rejected,"¹⁵ as well as to guilty pleas.¹⁶ The Sixth Amendment right to counsel also applies at sentencing proceedings.¹⁷

On the other hand, it is not a critical stage when the police display photographs, including those of the defendant, to witnesses for identification purposes,¹⁸ or take a handwriting exemplar from the defendant,¹⁹ so the Sixth Amendment right to counsel does not apply.

--------

Notes:

^[3] See generally Pamela R. Metzger, Beyond the Bright Line: A Contemporary Right-to-Counsel Doctrine, 97 Nw. U. L. Rev. 1635 (2003).

^[4]...