Lead Opinion
delivered the opinion
This Court has held that the right to counsel guaranteed by the
I
A
Although petitioner Walter Rothgery has never been convicted of a felony,
Rothgery’s article 15.17 hearing followed routine. The arresting officer submitted a sworn “Affidavit Of Probable Cause” that described the facts supporting the arrest and “charge[d] that. . . Rothgery . . . eommit[ted] the offense of unlawful possession of a firearm by a felon—3rd degree felony [Tex. Penal Code Ann. § 46.04],” App. to Pet. for Cert. 33a. After reviewing the affidavit, the magistrate “determined that probable cause existed for the arrest.” Id., at 34a. The magistrate informed Rothgery of the accusation, set his bail at $5,000, and committed him to jail, from which he was released after posting a surety bond. The bond, which the Gillespie County deputy sheriff signed, stated that “Rothgery stands charged by complaint duly filed . . . with the offense of a . . . felony, to wit: Unlawful Possession of a Firearm by a Felon.” Id., at 39a. The release was conditioned on the defendant’s personal appearance in trial court “for any and all subsequent proceedings that may be had relative to the said charge in the course of the criminal action based on said charge.” Ibid.
Rothgery had no money for a lawyer and made several oral and written requests for appointed counsel,
On January 23, 2003, six months after the article 15.17 hearing, Rothgery was finally assigned a lawyer, who promptly obtained a bail reduction (so Rothgery could get out of jail), and assembled the paperwork confirming that Rothgery had never been convicted of a felony. Counsel relayed this information to the district attorney, who in turn filed a motion to dismiss the indictment, which was granted.
B
Rothgery then brought this 42 U. S. C. § 1983 action against respondent Gillespie County (County), claiming that if the County had provided a lawyer within a
The District Court granted summary judgment to the County, see
We granted certiorari,
II
The Sixth Amendment right of the “accused” to assistance of counsel in “all criminal prosecutions”
A
When the Court of Appeals said no, because no prosecutor was aware of Rothgery’s
As the Court of Appeals recognized, see
The Brewer defendant surrendered to the police after a warrant was out for his arrest on a charge of abduction. He was then “arraigned before a judge ... on the outstanding arrest warrant,” and at the arraignment, “[t]he judge advised him of his Miranda [v. Arizona,
B
Our latest look at the significance of the initial appearance was McNeil,
That was 17 years ago, the same is true today, and the overwhelming consensus practice conforms to the rule that the first formal proceeding is the point of attachment. We are advised without contradiction that not only the Federal Government, including the District of Columbia, but 43 States take the first step toward
C
The only question is whether there may be some arguable justification for the minority
1
The Court of Appeals thought Brewer and Jackson could be distinguished on the ground that “neither case addressed the issue of prosecutorial involvement,” and the cases were thus “neutral on the point,”
Neither Brewer nor Jackson said a word about the prosecutor’s involvement as a relevant fact, much less a controlling one. Those cases left no room for the factual enquiry the Court of Appeals would require, and with good reason: an attachment rule that turned on determining the moment of a prosecutor’s first involvement would be “wholly unworkable and impossible to administer,” Escobedo v. Illinois,
It is not that the Court of Appeals believed that any such regime would be desirable, but it thought originally that its rule was implied by this Court’s statement that the right attaches when the government has “committed itself to prosecute.” Kirby,
But what counts as a commitment to prosecute is an issue of federal law unaffected by allocations of power among state officials under a State’s law, cf. Moran,
2
The County resists this logic with the argument that in considering the significance of the initial appearance, we must ignore prejudice to a defendant’s pretrial liberty, reasoning that it is the concern, not of the right to counsel, but of the speedy-trial right and the Fourth Amendment. See Brief for Respondent 47-51. And it cites Gouveia,
The defendants in Gouveia were prison inmates, suspected of murder, who had been placed in an administrative detention unit and denied counsel up until an indictment was filed. Although no formal judicial proceedings had taken place prior to the indictment, see
Gouveia’s holding that the Sixth Amendment right to counsel had not attached has no application here. For one thing, Gouveia does not affect the conclusion we reaffirmed two years later in Jackson, that bringing a defendant before a court for initial appearance signals a sufficient commitment to prosecute and marks the start of adversary judicial proceedings. (Indeed, Jackson refutes the County’s argument that Fifth Amendment protections at the early stage obviate attachment of the Sixth Amendment right at initial appearance. See supra, at 201-202.) And since we are not asked to extend the right to counsel to a point earlier than formal judicial proceedings (as in Gouveia), but to defer it to those proceedings in which a prosecutor is involved, Gouveia does not speak to the question before us.
The County also tries to downplay the significance of the initial appearance by saying that an attachment rule unqualified by prosecutorial involvement would lead to the conclusion “that the State has statutorily committed to prosecute every suspect arrested by the police,” given that “state law requires [an article 15.17 hearing] for every arrestee.” Brief for Respondent 24 (emphasis in original). The answer, though, is that the State has done just that, subject to the option to change its official mind later. The State may rethink its commitment at any point: it may choose not to seek indictment in a felony case, say, or the prosecutor may enter nolle prosequi after the case gets to the jury room. But without a change of position, a defendant subject to accusation after initial appearance is headed for trial and needs to get a lawyer working, whether to attempt to avoid that trial or to be ready with a defense when the trial date arrives.
3
A third tack on the County’s part, slightly different from the one taken by the Fifth Circuit, gets it no further. The County stipulates that “the properly formulated test is not . . . merely whether prosecutors have had any involvement in the case whatsoever, but instead whether the State has objectively committed itself to prosecute.” Id., at 31. It then informs us that “[pjrosecutorial involvement is merely one form of evidence of such commitment.” Ibid. Other sufficient evidentiary indications are variously described: first (expansively) as “the filing of formal charges ... by information, indictment or formal complaint, or the holding of an adversarial preliminary hearing to determine probable cause to file such charges,” ibid, (citing Kirby,
So the County is reduced to taking aim at those cases. Brewer and Jackson, we are told, are “vague” and thus of “limited, if any, precedential value.” Brief for Respondent 33, 35; see also id., at 32, n. 13 (asserting that Brewer and Jackson “neither provide nor apply an analytical framework for determining attachment”). And, according to the County, our cases (Brewer and Jackson aside) actually establish a “general rule that the right to counsel attaches at the point that [what the County calls] formal charges are filed,” Brief for Respondent 19, with exceptions allowed only in the case of “a very limited
We think the County is wrong both about the clarity of our cases and the substance that we find clear. Certainly it is true that the Court in Brewer and Jackson saw no need for lengthy disquisitions on the significance of the initial appearance, but that was because it found the attachment issue an easy one. The Court’s conclusions were not vague; Brewer expressed “no doubt” that the right to counsel attached at the initial appearance,
If, indeed, the County had simply taken the cases at face value, it would have avoided the mistake of merging the attachment question (whether formal judicial proceedings have begun) with the distinct “critical stage” question (whether counsel must be present at a postattachment proceeding unless the right to assistance is validly waived). Attachment occurs when the government has used the judicial machinery to signal a commitment to prosecute as spelled out in Brewer and Jackson. Once attachment occurs, the accused at least
The County thus makes an analytical mistake in its assumption that attachment necessarily requires the occurrence or imminence of a critical stage. See Brief for Respondent 28-30. On the contrary, it is irrelevant to attachment that the presence of counsel at an article 15.17 hearing, say, may not be critical, just as it is irrelevant that counsel’s presence may not be critical when a prosecutor walks over to the trial court to file an information. As we said in Jackson, “[t]he question whether arraignment signals the initiation of adversary judicial proceedings ... is distinct from the question whether the arraignment itself is a critical stage requiring the presence of counsel.”
III
Our holding is narrow. We do not decide 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. We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant’s initial appearance before a judicial officer, where he learns the charge 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. Because the Fifth Circuit came to a different conclusion on this threshold issue, its judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Notes
“[F]elony charges . . . had been dismissed after Rothgery completed a diversionary program, and both sides agree that [he] did not have a felony conviction.”
A separate article of the Texas Code of Criminal Procedure requires prompt presentment in the case of arrests under warrant as well. See Art. 15.17(a) (West Supp. 2007). Whether the arrest is under warrant or warrantless, article 15.17 details the procedures a magistrate must follow upon presentment. See Art. 14.06(a) (in cases of warrantless arrest, “[t]he magistrate shall immediately perform the duties described in Article 15.17 of this Code”).
See Gerstein v. Pugh,
Because respondent Gillespie County obtained summary judgment in the current case, we accept as true that Rothgery made multiple requests.
Rothgery also requested counsel at the article 15.17 hearing itself, but the magistrate informed him that the appointment of counsel would delay setting bail (and hence his release from jail). Given the choice of proceeding without counsel or remaining in custody, Rothgery waived the right to have appointed counsel present at the hearing. See
Rothgery does not challenge the County’s written policy for appointment of counsel, but argues that the County was not following that policy in practice. See
Such a policy, if proven, arguably would also be in violation of Texas state law, which appears to require appointment of counsel for indigent defendants released from custody, at the latest, when the “first court appearance” is made. See Tex. Code Crim. Proc. Ann., Art. 1.051(j) (Vernon Supp. 2007). See also Brief for Texas Association of Counties et al. as Amici Curiae 13 (asserting that Rothgery “was statutorily entitled to the appointment of counsel within three days after having requested it”).
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.”
The Court of Appeals did not resolve whether the arresting officer’s formal accusation would count as a “formal complaint” under Texas state law. See
The dissent says that “Brewer’s attachment holding is indisputably no longer good law” because “we have subsequently held that the Sixth Amendment right to counsel is “'offense specific,”’” post, at 230 (opinion of Thomas, J.) (quoting Texas v. Cobb,
The State continued to press this contention at oral argument. See Tr.. of Oral Arg. in Michigan v. Jackson, O. T. 1985, No. 84-1581 etc., p. 4 (“[T]he Michigan Supreme Court held that if a defendant, while at his initial appearance before a magistrate who has no jurisdiction to accept a final plea in the case, whose only job is ministerial, in other words to advise a defendant of the charge against him, set bond if bond is appropriate, and to advise him of his right to counsel and to get the administrative process going if he’s indigent, the Michigan Supreme Court said if the defendant asked for appointed counsel at that stage, the police are forevermore precluded from initiating interrogation of that defendant”); id., at 8 (“First of all, as a practical matter, at least in our courts, the police are rarely present for arraignment, for this type of an arraignment, for an initial appearance, I guess we should use the terminology. . . . The prosecutor is not there for initial appearance. We have people brought through a tunnel. A court officer picks them up. They take them down and the judge goes through this procedure. . . . There is typically nobody from our side, if you will, there to see what’s going on”).
The preliminary examination is a preindictment stage at which the defendant is allowed to test the prosecution’s evidence against him, and to try to dissuade the prosecutor from seeking an indictment. See Coleman v. Alabama,
The County, in its brief to this Court, suggests that although Brewer and Jackson spoke of attachment at the initial appearance, the cases might actually have turned on some unmentioned fact. As to Brewer, the County speculates that an information might have been filed before the defendant’s initial appearance. See Brief for Respondent 34-36. But as Rothgery points out, the initial appearance in Brewer was made in municipal court, and a felony information could not have been filed there. See Reply Brief for Petitioner 11. As to Jackson, the County suggests that the Court might have viewed Michigan’s initial arraignment as a significant proceeding only because the defendant could make a statement at that hearing, and because respondent Bladel did in fact purport to enter a plea of not guilty. See Brief for Respondent 36-37. But this attempt to explain Jackson as a narrow holding is impossible to square with Jackson’s sweeping rejection of the State’s claims. It is further undermined by the fact that the magistrate in Bladel’s case, like the one in Texas’s article 15.17 hearing, had no jurisdiction to accept a plea of guilty to a felony charge. See Reply Brief for Petitioner 11-12.
The 43 States are these: (1) Alaska: see Alaska Stat. § 18.85.100 (2006); Alaska Rule Crim. Proc. 5 (Lexis 2006-2007); (2) Arizona: see Ariz. Rules Crim. Proc. 4.2 (West Supp. 2007), 6.1 (West 1998); (3) Arkansas: see Ark. Rule Crim. Proc. 8.2 (2006); Bradford v. State,
We do not here purport to set out the scope of an individual’s post-attachment right to the presence of counsel. It is enough for present purposes to highlight that the enquiry into that right is a different one from the attachment analysis.
The cases have defined critical stages as proceedings between an individual and agents of the State (whether “formal or informal, in court or out,” see United States v. Wade,
The dissent likewise anticipates an issue distinct from attachment when it claims Rothgery has suffered no harm the Sixth Amendment recognizes. Post, at 235. Whether the right has been violated and whether Rothgery has suffered cognizable harm are separate questions from when the right attaches, the sole question before us.
Concurrence Opinion
join, concurring.
I join the Court’s opinion because I do not understand it to hold that a defendant is entitled to the assistance of appointed counsel as soon as his Sixth Amendment right attaches. As I interpret our precedents, the term “attachment” signifies nothing more than the beginning of the defendant’s prosecution. It does not mark the beginning of a substantive entitlement to the assistance of counsel. I write separately to elaborate on my understanding of the term “attachment” and its relationship to the Amendment’s substantive guarantee of “the Assistance of Counsel for [the] defence.”
The Sixth Amendment provides in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence.” The Amendment thus defines the scope of the right to counsel in three ways: It provides who may assert the right (“the accused”); when the right may be asserted (“[i]n all criminal prosecutions”); and what the right guarantees (“the right... to have the Assistance of Counsel for his defence”).
It is in the context of interpreting the Amendment’s answer to the second of these questions—when the right may be asserted—that we have spoken of the right “attaching.” In Kirby v. Illinois,
“In Kirby v. Illinois, the plurality opinion made clear that the right to counsel announced in Wade and Gilbert attaches only to corporeal identifications conducted at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. This is so because the initiation of such proceedings marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable. Thus, in Kirby the plurality held that the prosecution’s evidence of a robbery victim’s one-on-one stationhouse identification of an uncounseled suspect shortly after the suspect’s arrest was admissible because adversary judicial criminal proceedings had not yet been initiated.” Id., at 226-227 (some internal quotation marks and citations omitted).
When we wrote in Kirby and Moore that the Sixth Amendment right had “attached,” we evidently meant nothing more than that a “criminal prosecutio[n]” had begun. Our cases have generally used the term in that narrow fashion. See Texas v. Cobb,
Because pretrial criminal procedures vary substantially from jurisdiction to jurisdiction, there is room for disagreement about when a “prosecution” begins for Sixth Amendment purposes. As the Court notes, however, we have previously held that “arraignments” that were functionally indistinguishable from the Texas magistration marked the point at which the Sixth Amendment right to counsel “attached.” See ante, at 198-199 (discussing Jackson, supra, and Brewer, supra).
It does not follow, however, and I do not understand the Court to hold, that the county had an obligation to appoint an attorney to represent petitioner within some specified period after his magistration. To so hold, the Court would need to
In interpreting this latter phrase, we have held that “defence” means defense at trial, not defense in relation to other objectives that may be important to the accused. See Gouveia, supra, at 190 (“[T]he right to counsel exists to protect the accused during trial-type confrontations with the prosecutor . . . ”); Ash, supra, at 309 (“[T]he core purpose of the counsel guarantee was to assure ‘Assistance’ at trial . . . ”). We have thus rejected the argument that the Sixth Amendment entitles the criminal defendant to the assistance of appointed counsel at a probable-cause hearing. See Gerstein v. Pugh,
At the same time, we have recognized that certain pretrial events may so prejudice the outcome of the defendant’s prosecution that, as a practical matter, the defendant must be represented at those events in order to enjoy genuinely effective assistance at trial. See, e. g., Ash, supra, at 309-310; United States v. Wade,
Weaving together these strands of authority, I interpret the Sixth Amendment to require the appointment of counsel only after the defendant’s prosecution has begun, and then only as necessary to guarantee the defendant effective assistance at trial. Cf. McNeil, supra, at 177-178 (“The purpose of the Sixth Amendment counsel guarantee — and hence the purpose of invoking it — is to protec[t]
The Court expresses no opinion on whether Gillespie County satisfied that obligation in this case. Petitioner has asked us to decide only the limited question whether his magistration marked the beginning of his “criminal prosecutio[n]” within the meaning of the Sixth Amendment. Because I agree with the Court’s resolution of that limited question, I join its opinion in full.
Dissenting Opinion
dissenting.
The Court holds today — for the first time after plenary consideration of the question — that a criminal prosecution begins, and that the Sixth Amendment right to counsel therefore attaches, when an individual who has been placed under arrest makes an initial appearance before a magistrate for a probable-cause determination and the setting of bail. Because the Court’s holding is not supported by the original meaning of the Sixth Amendment or any reasonable interpretation of our precedents, I respectfully dissent.
I
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” The text of the Sixth Amendment thus makes clear that the right to counsel arises only upon initiation of a “criminal prosecutio[n].” For that reason, the Court has repeatedly stressed that the Sixth Amendment right to counsel “does not attach until a prosecution is commenced.” McNeil v. Wisconsin,
Given the Court’s repeated insistence that the right to counsel is textually limited to “criminal prosecutions,” one would expect the Court’s jurisprudence in this area to be grounded in an understanding of what those words meant when the Sixth Amendment was adopted. Inexplicably, however, neither today’s decision nor any of the other numerous decisions in which the Court has construed the right to counsel has attempted to discern the original meaning of “criminal prosecutio[n].” I think it appropriate to examine what a “criminal proseeutio[n]” would have been understood to entail by those who adopted the Sixth Amendment.
There is no better place to begin than with Blackstone, “whose works constituted the preeminent authority on English law for the founding generation.” Alden v. Maine,
At the outset of his discussion, Blackstone organized the various stages of a criminal proceeding “under twelve general heads, following each other in a progressive order.” Ibid. The first six relate to pretrial events: “1. Arrest; 2. Commitment and bail; 3. Prosecution; 4. Process; 5. Arraignment, and it’s incidents; 6. Plea, and issue.” Ibid. (emphasis added). Thus, the first significant fact is that Blackstone did not describe the entire criminal process as a “prosecution,” but rather listed prosecution as the third step in a list of successive stages. For a more complete understanding of what Blackstone meant by “prosecution,” however, we must turn to chapter 23, entitled “Of the Several Modes of Prosecution.” Id., at *301. There, Blackstone explained that — after arrest and examination by a justice of the peace to determine whether a suspect should be discharged, committed to prison, or admitted to bail, id., at *296 — the “next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation,” id., at *301 (emphasis added).
Blackstone thus provides a definition of “prosecution”: the manner of an offender’s “formal accusation.” The modifier “formal” is significant because it distinguishes “prosecution” from earlier stages of the process involving a different kind of accusation: the allegation of criminal conduct necessary to justify arrest and detention. Blackstone’s discussion of arrest, commitment, and bail makes clear that a person could not be arrested and detained without a “charge” or “accusation,” i. e., an allegation, supported by probable cause, that the person had committed a crime. See id., at *289-*3Q0. But the accusation justifying arrest and detention was clearly preliminary to the “formal accusation” that Blackstone identified with “prosecution.” See id., at *290, *318.
By “formal accusation,” Blackstone meant, in most cases, “indictment, the most usual and effectual means of prosecution.” Id., at *302. Blackstone defined an “indictment” as “a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury.” Ibid, (emphasis deleted). If the grand jury was “satisfied of the truth of the accusation,” it endorsed the indictment, id., at *305-*306, which was then “publicly delivered into court,” id., at *306, “afterwards to be tried and determined,” id., at *303, “before an officer having power to punish the [charged] offence,” 2 T. Cunningham, A New and Complete Law Dictionary (2d ed. 1771).
In addition to indictment, Blackstone identified two other “methods of prosecution at the suit of the king.” 4 Blackstone *312. The first was presentment, which, like an indictment, was a grand jury’s formal accusation “of an offence, inquirable in the Court where it [was] presented.” 5 G. Jacob, The Law-Dictionary 278-279 (1811). The principal difference was that the accusation arose from “the notice taken by a grand jury of any offence from their own knowledge or observation” rather than from a “bill of indictment laid before them.” 4 Blackstone *301. The second was information, “the only species of proceeding at the suit of the king, without
From the foregoing, the basic elements of a criminal “prosecution” emerge with reasonable clarity. “Prosecution,” as Blackstone used the term, referred to “instituting a criminal suit,” id., at *309, 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. And, significantly, Blackstone’s usage appears to have accorded with the ordinary meaning of the term. See 2 N. Webster, An American Dictionary of the English Language (1828) (defining “prosecution” as “[t]he institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment,” and noting that “[prosecutions may be by presentment, information or indictment”).
B
With Blackstone as our guide, it is significant that the Framers used the words “criminal prosecutions” in the Sixth Amendment rather than some other formulation such as “criminal proceedings” or “criminal cases.” Indeed, elsewhere in the Bill of Rights we find just such an alternative formulation: In contrast to the Sixth Amendment, the Fifth Amendment refers to “criminal case[s].” U. S. Const., Amdt. 5 (“No person . . . shall be compelled in any criminal case to be a witness against himself”).
In Counselman v. Hitchcock,
The following Term, the Court construed the phrase “criminal prosecution” in a statutory context, and this time the Court squarely held that a “prosecution” does not encompass preindictment stages of the criminal process. In Virginia v. Paul,
The Court held that a criminal prosecution had not commenced, and that removal was therefore not authorized by the terms of the statute. The Court noted that under Virginia law murder could be prosecuted
“Proceedings before a magistrate to commit a person to jail, or to hold him to bail, in order to secure his appearance to answer for a crime or offence which the magistrate has no jurisdiction himself to try, before the court in which he may be prosecuted and tried, are but preliminary to the prosecution, and are no more a commencement of the prosecution, than is an arrest by an officer without a warrant for a felony committed in his presence.” Ibid.
C
The foregoing historical summary is strong evidence that the term “criminal prosecutio[n]” in the Sixth Amendment refers to the commencement of a criminal suit by filing formal charges in a court with jurisdiction to try and punish the defendant. And on this understanding of the Sixth Amendment, it is clear that petitioner’s initial appearance before the magistrate did not commence a “criminal prosecutio[n].” No formal charges had been filed. The only document submitted to the magistrate was the arresting officer’s affidavit of probable cause. The officer stated that he “ha[d] good reason to believe” that petitioner was a felon and had been “walking around [an] RV park with a gun belt on, carrying a pistol, handcuffs, mace spray, extra bullets and a knife.” App. to Pet. for Cert. 33a. The officer therefore “charge[d]” that petitioner had “committed] the offense of unlawful possession of a firearm by a felon — 3rd degree felony.” Ibid. The magistrate certified that he had examined the affidavit and “determined that probable cause existed for the arrest of the individual accused therein.” Id., at 34a. Later that day, petitioner was released on bail, and did not hear from the State again until he was indicted six months later.
The affidavit of probable cause clearly was not the type of formal accusation Blackstone identified with the commencement of a criminal “prosecution.” Rather, it was the preliminary accusation necessary to justify arrest and detention— stages of the criminal process that Blackstone placed before prosecution. The affidavit was not a pleading that instituted a criminal prosecution, such as an indictment, presentment, or information; and the magistrate to whom it was presented had no jurisdiction to try and convict petitioner for the felony offense charged therein. See Teal v. State,
The original meaning of the Sixth Amendment, then, cuts decisively against the Court’s conclusion that petitioner’s right to counsel attached at his initial appearance before the magistrate. But we are not writing on a blank slate: This Court has a substantial body of.more recent precedent construing the Sixth Amendment right to counsel.
As the Court notes, our cases have “pegged commencement” of a criminal prosecution, ante, at 198, to “the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment,” Kirby v. Illinois,
“In a line of constitutional cases in this Court stemming back to the Court’s landmark opinion in Powell v. Alabama,287 U. S. 45 [(1932)], it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst,304 U. S. 458 [(1938)]; Hamilton v. Alabama,368 U. S. 52 [(1961)]; Gideon v. Wainwright,372 U. S. 335 [(1963)]; White v. Maryland,373 U. S. 59 [(1963) (per curiam)]; Massiah v. United States,377 U. S. 201 [(1964)]; United States v. Wade,388 U. S. 218 [(1967)]; Gilbert v. California,388 U. S. 263 [(1967)]; Coleman v. Alabama,399 U. S. 1 [(1970)].
“This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the trial itself. The Powell case makes clear that the right attaches at the time of arraignment, and the Court has recently held that it exists also at the time of a preliminary hearing. Coleman v. Alabama, supra. But the point is that, while members of the Court have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Id., at 688-689 (footnote omitted).
It is noteworthy that Kirby did not purport to announce anything new; rather, it simply catalogued what the Court had previously held. And the point of the plurality’s discussion was that the criminal process contains stages prior to commencement of a criminal prosecution. The holding of the case was that the right to counsel did not apply at a station house lineup that took place “before the defendant had been indicted or otherwise formally charged with any criminal offense.” Id., at 684.
Kirby gave five examples of events that initiate “adversary judicial criminal proceedings”: formal charge, preliminary hearing, indictment, information, and arraignment. None of these supports the result the Court reaches today. I will apply them seriatim. No indictment or information had been filed when petitioner appeared before the magistrate. Nor was there any other formal charge. Although the plurality in Kirby did not define “formal charge,” there is no reason to believe it would have included an affidavit of probable cause in that category. None of the cases on which it relied stood for that proposition. Indeed, all of them—with the exception of White v. Maryland,
Nor was petitioner’s initial appearance a preliminary hearing. The comparable proceeding in Texas is called an “examining trial.” See ante, at 202, n. 12. More importantly, petitioner’s initial appearance was unlike the preliminary hearings that were held to constitute “critical stages” in White and Coleman, because it did not involve entry of a plea, cf. White, supra, at 60, and was nonadversarial, cf. Coleman, supra, at 9. There was no prosecutor present, there were no witnesses to cross-examine, there was no case to discover, and the result of the proceeding was not to bind petitioner over to the grand jury or the trial court.
Finally, petitioner’s initial appearance was not what Kirby described as an “arraignment.” An arraignment, in its traditional and usual sense, is a postindietment proceeding at which the defendant enters a plea. See, e. g., W. LaFave, J. Israel, & N. King, Criminal Procedure § 1.3(n), pp. 19-20 (4th ed. 2004); 4 Blackstone *322. Although the word “arraignment” is sometimes used to describe an initial appearance before a magistrate, see LaFave, supra, § 1.3(j), at 16, that is not what Kirby meant when it said that the right to counsel attaches at an “arraignment.” Rather, it meant the traditional, postindictment arraignment where the defendant enters a plea. This would be the most reasonable assumption even if there were nothing else to go on, since that is the primary meaning of the word, especially when used unmodified.
But there is no need to assume. Kirby purported to describe only what the Court had already held, and none of the cases Kirby cited involved an initial appearance. Only two of the cases involved arraignments, and both were postindictment arraignments at which the defendant entered a plea. Hamilton, supra, at 53, n. 3; Powell,
Ill
It is clear that when Kirby was decided in 1972 there was no precedent in this Court for the conclusion that a criminal
In Brewer, the defendant challenged his conviction for murdering a 10-year-old girl on the ground that his Sixth Amendment right to counsel had been violated when detectives elicited incriminating statements from him while transporting him from Davenport, Iowa, where he had been arrested on a warrant for abduction and “arraigned before a judge ... on the outstanding arrest warrant,” to Des Moines, where he was to be tried.
In contrast, the question whether the defendant’s right to counsel had attached was neither raised in the courts below nor disputed before this Court. Nonetheless, the Court, after quoting Kirby’s formulation of the test, offered its conelusory observations:
“There can be no doubt in the present case that judicial proceedings had been initiated against Williams before the start of the automobile ride from Davenport to Des Moines. A warrant had been issued for his arrest, he had been arraigned on that warrant before a judge in a Davenport courtroom, and he had been committed by the court to confinement in jail. The State does not contend otherwise.”430 U. S., at 399 .
Brewer’s cursory treatment of the attachment issue demonstrates precisely why, when “an issue [is] not addressed by the parties,” it is “imprudent of us to address it... with any pretense of settling it for all time.” Metropolitan Stevedore Co. v. Rambo,
The Court finds it significant that Brewer expressed “ ‘no doubt’” that the right had attached. Ante, at 211 (quoting
Nor does Jackson control. In Jackson, as in Brewer, the attachment issue was secondary. The question presented was “not whether respondents had a right to counsel at their postarraignment, custodial interrogations,”
The Court disposed of the issue in a footnote. See Jackson, supra, at 629-630, n. 3. As in Brewer, the Court did not describe the nature of the proceeding. It stated only that the respondents were “arraigned.”
There is no way to know from the Court’s opinion in Jackson whether the arraignment at issue there was the same type of arraignment at which the right to counsel had been held to attach in Powell and Hamilton. Only upon examination of the parties’ briefs does it become clear that the proceeding was in fact an initial appearance. But Jackson did not even acknowledge, much less “flatly rejec[t] the distinction between initial arraignment and arraignment on the indictment.” Ante, at 202. Instead, it offered one sentence of analysis—“In view of the clear language in our decisions about the significance of arraignment, the State’s argument is untenable”—followed by a string citation to four cases, each of which quoted Kirby.
The only rule that can be derived from the face of the opinion in Jackson is that if a proceeding is called an “arraignment,” the right to counsel attaches.
And our reasoned precedents provide no support for the conclusion that the right to
“The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.”406 U. S., at 689-690 (plurality opinion).
None of these defining characteristics of a “criminal prosecution” applies to petitioner’s initial appearance before the magistrate. The initial appearance was not an “adversary” proceeding, and petitioner was not “faced with the prosecutorial forces of organized society.” Instead, he stood in front of a “ ‘little glass window,’ ” filled out various forms, and was read his Miranda rights. Brief for Respondent 5. The State had not committed itself to prosecute — only a prosecutor may file felony charges in Texas, see Tex. Code Crim. Proc. Ann., Arts. 2.01, 2.02 (Vernon 2005), and there is no evidence that any prosecutor was even aware of petitioner’s arrest or appearance. The adverse positions of government and defendant had not yet solidified — the State’s prosecutorial officers had not yet decided whether to press charges and, if so, which charges to press. And petitioner was not immersed in the intricacies of substantive and procedural criminal law — shortly after the proceeding he was free on bail, and no further proceedings occurred until six months later when he was indicted.
Moreover, the Court’s holding that the right to counsel attaches at an initial appearance is untethered from any interest that we have heretofore associated with the right to counsel. The Court has repeatedly emphasized that “[t]he purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights.” Johnson,
Neither petitioner nor the Court identifies any way in which petitioner’s ability to receive a fair trial was undermined by the absence of counsel during the period between his initial appearance and his indictment. Nothing during that period exposed petitioner to the risk that he would be convicted as the result of ignorance of his rights. Instead, the gravamen of petitioner’s complaint is that if counsel had been appointed earlier, he would have been able to stave off indictment by convincing the prosecutor that petitioner was not guilty of the crime alleged. But the Sixth Amendment protects against the risk of erroneous conviction, not the risk of unwarranted prosecution. See Gouveia,
Petitioner argues that the right to counsel is implicated here because restrictions were imposed on his liberty when he was required to post bail. But we have never suggested that the accused’s right to the assistance of counsel “for his defence” entails a right to use counsel as a sword to contest pretrial detention. To the contrary, we have flatly rejected that notion, reasoning that a defendant’s liberty interests are protected by other constitutional guarantees. See id., at 190 (“While the right to counsel exists to protect the accused during trial-type confrontations with the prosecutor, the speedy trial right exists primarily to protect an individual’s liberty interest,” including the interest in reducing the “ ‘impairment of liberty imposed on an accused while released on bail’ ”).
IV
In sum, neither the original meaning of the Sixth Amendment right to counsel nor our precedents interpreting the scope of that right supports the Court’s holding that the right attaches at an initial appearance before a magistrate. Because I would affirm the judgment below, I respectfully dissent.
The Court also relies on McNeil v. Wisconsin,
The Court asserts that Jackson’s “conclusion was driven by the same considerations the Court had endorsed in Brewer,” namely, that “by the time a defendant is brought before a judicial officer, is informed of a formally lodged accusation, and has restrictions imposed on his liberty in aid of the prosecution, the State’s relationship with the defendant has become solidly adversarial.” Ante, at 202. But Jackson said nothing of the sort.
Moreover, even looking behind the opinion, Jackson does not support the result the Court reaches today. Respondent Bladel entered a “not guilty” plea at his arraignment, see Brief for Petitioner in Michigan v. Bladel, O. T. 1985, No. 84-1539, p. 4, and both Hamilton v. Alabama,
Concurrence Opinion
joins, concurring.
Justice Thomas’s analysis of the present issue is compelling, but I believe the result here is controlled by Brewer v. Williams,
I also join Justice Alito’s concurrence, which correctly distinguishes between the time the right to counsel attaches and the circumstances under which counsel must be provided.