Concept
When the Right Attaches
Attachment and appointed counsel
When the Right Attaches
The first question in any right-to-counsel problem is whether the Sixth Amendment applies yet, and the constitutional text supplies the starting point. The guarantee opens with the words "In all criminal prosecutions, the accused shall enjoy the right" to a list of protections that ends with the assistance of counsel.1 Two terms in that opening matter. A prosecution is a proceeding the government has begun against someone, and an accused is the person against whom it is pending. The right therefore belongs to a person only after the government has moved from investigating a crime to prosecuting it.
The Supreme Court turned that text into a timing rule in Kirby v. Illinois, which held that the right to counsel attaches only at or after the time adversary judicial proceedings have been initiated against the accused.2 The facts show how firmly the rule operates. A man named Shard was robbed at gunpoint in his Chicago apartment, and police stopped Kirby and a companion nearby, found a revolver on Kirby, and took both men to a police station. About thirty minutes after the robbery Shard was brought in, the two men were placed in a room with two other men, and Shard identified them as the robbers, with no lawyer present and no advice to either man about a right to counsel. Only later were they formally charged.3 Kirby claimed that the Sixth and Fourteenth Amendments required a lawyer at that identification, and the claim failed because no adversary judicial proceeding had begun when it took place.4 Custody, police focus on Kirby, and the importance of the identification to the later trial did not change the answer, since at that moment the police were still investigating and no prosecution existed.
The same kind of event comes out the other way once a prosecution has begun. In United States v. Wade and Gilbert v. California the Court had held that a post-indictment lineup is a critical stage of the criminal prosecution, a stage at which the accused is entitled to counsel.5 A lineup before indictment and a lineup after indictment can look identical from the witness's chair, so the only fact that moves the constitutional answer is whether adversary proceedings have started. Which events inside a prosecution count as critical stages is a separate inquiry for the next reading; attachment answers only whether the right exists in the case at all. The same line explains results outside the identification setting: a person who is the target of a grand jury investigation has no Sixth Amendment right to counsel because no one has been charged, while a defendant who must enter a plea at arraignment does have the right to a lawyer at that proceeding.6
The reason the right waits for a prosecution lies in what the government is doing at each point. Before any charge, the government is still investigating and deciding whether anyone will be accused at all, so the person under suspicion has not yet been confronted with the organized machinery of a criminal case. Other rules protect that person in the meantime. Kirby itself explained that Miranda rests exclusively on the Fifth Amendment privilege against compelled self-incrimination and on the theory that custodial interrogation is inherently coercive, while the rule requiring counsel at identification procedures rests on the separate Sixth Amendment guarantee.7 Once the government has formally committed itself to prosecute, the accused faces trained prosecutors and the full apparatus of the state, and the Sixth Amendment supplies a lawyer to stand beside the accused. A formal event as the trigger also gives police, magistrates, and local governments an identifiable moment at which the duty to provide counsel begins, which a test asking when police began to focus on a particular suspect could not offer.
Drawing the line at the start of the prosecution has a cost, and the dissenters in Kirby identified it. Justice Brennan, joined by Justices Douglas and Marshall, argued that the dangers of suggestion and misidentification are the same whether or not formal charges have been filed, and Justice White warned that officers would have every incentive to conduct lineups before filing charges so as to avoid the requirements of Wade and Gilbert.8 The majority nonetheless tied the right to the initiation of formal proceedings, and a bright line of that kind necessarily gives up sensitivity to how closely a particular pre-charge event resembles a trial. That is why a suspect's protection before attachment comes from other sources, and why an exam fact pattern that opens with an arrest and a station-house confrontation calls for one question first: has any adversary judicial proceeding begun? Students lose this issue when they treat arrest or custody as the moment the right begins.9
The remainder of this section applies the rule in order. It first identifies which events count as the initiation of adversary judicial proceedings, then takes up a defendant's first appearance before a magistrate and asks whether it matters that no prosecutor took part. It next separates attachment from the state's duty to supply a lawyer at any given moment, and it closes with the separate protection Miranda gives a suspect who has not yet reached attachment.
Initiation of Adversary Proceedings
The preceding discussion placed the right to counsel at the start of a prosecution, and the first task here is to identify which events count as that start. In Kirby v. Illinois the Court stated the rule that the right attaches only at or after the initiation of adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.11 An indictment is a grand jury's written accusation, and an information is the same kind of accusation filed directly by a prosecutor. A preliminary hearing is the proceeding at which a judge decides whether the evidence supports holding the accused for trial, and an arraignment is the proceeding at which the accused hears the charge and is called on to plead. Each event on the list is a formal step taken in court or filed with a court, through which the government conveys its commitment to prosecute.12 The list therefore gives examples of one idea, and the next section carries that idea to the first court appearance after an arrest.
An indictment is the clearest trigger, but the rule does not wait for one. In Estelle v. Smith the defendant had already been indicted and had a lawyer appointed when a psychiatrist examined him before trial, and the Court agreed that the Sixth Amendment right to counsel applied to that pretrial interview, restating the Kirby formulation as its starting point.13 Moore v. Illinois shows that attachment can come earlier than an indictment. The Court held there that adversary judicial proceedings had begun by the time of a preliminary hearing, so an identification of an unindicted defendant at that hearing, without a lawyer, violated the Sixth Amendment, while an identification made before the hearing carried no right to counsel.14 The two identifications in Moore were the same kind of confrontation, and the only variable was whether a judicial proceeding had begun. The trap is to wait for a formal indictment: an indictment is not required, because a preliminary hearing or an arraignment is enough.15
The same single-variable comparison appears in the two cases that mark the poles of the rule. In United States v. Wade the bank-robbery suspect had been charged and had an appointed lawyer when the government placed him in a lineup without notice to that lawyer.16 The Court treated a post-indictment lineup as a stage at which the accused is entitled to counsel.17 The reasoning shows why attachment matters once it occurs. When the Bill of Rights was adopted there were no organized police forces, and the accused met the prosecutor and the witnesses largely at trial itself. Modern law enforcement stages pretrial confrontations whose results can settle the accused's fate and reduce the trial to a formality, so the guarantee of counsel for the defense reaches them.18 Which pretrial events count as critical stages belongs to the next reading. Kirby supplies the other half of the picture: its station-house showup took place before any charge or court appearance, with no lawyer present, and the Court declined to extend Wade to it.19 A showup resembles a lineup closely, so the only fact that separates the two results is whether proceedings had begun.
The Court insisted that this timing rule is substantive. Kirby described the initiation of judicial criminal proceedings as "far from a mere formalism" and as "the starting point of our whole system of adversary criminal justice."20 The reason has two halves, and each names a different change. On the government's side, the commitment to prosecute marks the moment the government stops deciding whether to accuse anyone and begins pursuing a conviction on a specific accusation. On the accused's side, the adverse positions have solidified, so the defendant must now answer a defined charge before a court, against trained prosecutors and the intricacies of criminal law, and a lawyer is needed to stand beside the defendant in that contest. The Sixth Amendment right does not arise simply because a lawyer's help would be useful at some moment, since it protects the unaided layperson at a critical confrontation after those positions have hardened.21 United States v. Gouveia shows how far that logic runs. Prison inmates held in a special unit while authorities investigated had no right to counsel, and a person detained without charges does not become an accused even after a substantial detention and even when the government fully intends to file charges once its investigation ends.22
The same logic sorts the facts that do not initiate proceedings. An arrest alone, without a charge filed in court or an appearance before a magistrate, does not do so, and neither does the fact that the investigation has focused on a particular person.23 Early retention of a lawyer does not move the date either. Where the necessary stage has not been reached, the right does not attach even if the suspect has already hired counsel, because the right should not begin at different times depending on whether the suspect's family happened to retain a lawyer (Moran v. Burbine).24 The converse also holds: when an indictment or information is filed before the arrest, the person is an accused at the moment of arrest.25
One point remains unsettled. Authority divides on whether the filing of a complaint, or a complaint together with an arrest warrant, initiates proceedings, and the answer may turn on whether the paperwork reflects a genuine charging decision or serves another purpose, such as justifying an arrest inside a home.26 The next section takes up the event that resolves most real cases, the first appearance before a magistrate after an arrest.
The Initial Appearance Rule
The attachment rule just stated lists formal charge, preliminary hearing, indictment, information, and arraignment as the events that begin a prosecution, and that list leaves a gap that matters in practice. Most arrested people are brought before a judge within a day or two, long before any grand jury acts, so the question is whether that first court date already counts. Rothgery v. Gillespie County answers yes: a defendant's initial appearance before a magistrate, where the defendant learns the charge and the judge subjects the defendant's liberty to restriction, marks the initiation of adversary judicial proceedings and triggers attachment of the Sixth Amendment right to counsel.28 The proceeding goes by several names, among them first appearance, presentment, and preliminary arraignment. Under Federal Rule of Criminal Procedure 5(d) the judge tells the accused the charges, the right to remain silent, and the right to request or retain an attorney, explains how pretrial release may be obtained, and sets or denies bail.29
The facts show how much can happen to an accused person in the gap before indictment. Texas police arrested Walter Rothgery in July 2002 on the strength of an erroneous record showing a prior felony conviction, which made his possession of a firearm a felony, and they promptly brought him before a magistrate for what Texas law calls an article 15.17 hearing.30 The magistrate reviewed a sworn affidavit of probable cause, found probable cause, told Rothgery of the accusation, set bail at $5,000, and committed him to jail, and he was released only after posting a surety bond. He had no money for a lawyer, and his several oral and written requests for appointed counsel went unheeded.31 A grand jury indicted him the following January, officers rearrested him the next day, bail rose to $15,000, and he sat in jail for three weeks because he could not post it. A lawyer was finally assigned on January 23, 2003, six months after the hearing, and that lawyer promptly obtained a bail reduction and assembled paperwork showing that Rothgery had never been convicted of a felony, after which the district attorney moved to dismiss and the indictment was dismissed.32
Rothgery then sued the county under 42 U.S.C. § 1983, claiming that its unwritten policy of denying appointed counsel to indigent defendants released on bond until an indictment is entered had caused his indictment, rearrest, and jailing, since a lawyer provided within a reasonable time after the hearing would have produced the same paperwork months earlier.33 The claim failed in the lower courts because the Fifth Circuit considered itself bound by circuit precedent holding that the right does not attach at such a hearing when the relevant prosecutors were unaware of, or uninvolved in, the arrest and the appearance.34 The Supreme Court rejected that reasoning. Its earlier decisions in Brewer v. Williams and Michigan v. Jackson had already treated the initial appearance before a judicial officer, at which the defendant is told of the formal accusation and restrictions are placed on liberty, as the point where the right attaches, and Rothgery's hearing fit that description exactly: he was taken before a magistrate, informed of the accusation, and sent to jail until he made bond.35 Those precedents therefore controlled, so the case called for no new theory about when a prosecution begins. Whether a prosecutor must know of the appearance is a second holding, and the next section develops it.
The reason the first appearance serves as the trigger has two parts, one on each side of the case. On the government's side, a judicial officer announces the accusation, and the accusation sets arraignment in motion, so the commitment to prosecute has become concrete.36 On the accused's side, the magistrate sets bail or orders detention, which restricts liberty in aid of the prosecution, and from that moment the state's relationship with the defendant is solidly adversarial.37 Both halves were present at the Texas hearing. The timing also matches the moment a lawyer can do the most good, because the state is setting the conditions of release and counsel can contest bail and gather records that undercut the charge, as Rothgery's own lawyer did once assigned, after Rothgery had already spent three weeks in jail.38
A bright line at the first formal proceeding also tracks what nearly every jurisdiction already does. The Federal Government, including the District of Columbia, and 43 states take the first step toward appointing counsel before, at, or just after the initial appearance, and the seven states that denied counsel at that point were a distinct minority.39 Federal Rule of Criminal Procedure 44(a) is the model, since it entitles a defendant who cannot obtain counsel to appointed counsel at every stage from initial appearance through appeal, unless the defendant waives the right.40 A test keyed to a visible event of that kind also spares courts from deciding, case by case, when a prosecution has really begun.
Because one hearing often does several jobs, a distinction helps here. After a warrantless arrest the Fourth Amendment requires a prompt judicial finding of probable cause, and in Gerstein v. Pugh the Court explained that this finding can rest on hearsay and written testimony in a nonadversary proceeding, without the full set of adversary safeguards such as counsel, confrontation, and cross-examination.41 That constitutional determination can be made without the defendant present, whereas the initial appearance is required by statute or rule and requires the defendant's attendance.42 Many jurisdictions combine the two, and the Texas hearing did. What carries the Sixth Amendment consequence is the appearance itself, with its announcement of the accusation and its restriction of liberty, so the informal, nonadversary character of the probable cause finding does not postpone attachment.
The opposite pole is the station-house confrontation. In Kirby, police arrested a robbery suspect and showed the suspect to the victim at the station before any charge had been filed and before any court appearance, and the right to counsel had not attached.43 Custody and police focus were present there as they were in Rothgery, but no judicial officer had yet told the suspect of an accusation or restricted the suspect's liberty. The same person can move from one side of the line to the other within hours.
Attachment answers only whether the right exists in the case, and it does not by itself say that a lawyer must stand beside the defendant at the first appearance. Rothgery left open whether a standard first appearance, consisting of an ex parte probable cause finding, notice of the charges, and terms of release, is itself a critical stage that requires counsel on the spot.44 An initial appearance can become a critical stage when the state demands a prejudicial election, as in White v. Maryland, where a defendant without a lawyer entered a guilty plea at the initial appearance and that plea was later used against him at trial.45 Courts have also been reluctant to insist on counsel at the appearance, because its main object is setting release conditions and insisting on defense counsel could prolong the suspect's time in jail, while counsel can move to revise release soon afterward.46 How soon after attachment the state must supply a lawyer is taken up two sections ahead. Two separate opinions are context rather than holdings: Justice Thomas dissented, taking the view that only a formal charging document attaches the right, and Chief Justice Roberts's concurrence emphasized that attachment does not by itself settle whether counsel is required at the appearance itself.
On an exam stem that describes an arrest, a hearing before a judge, and no indictment, the question is whether the hearing was one at which the accusation was announced and liberty was restricted. Students lose this issue when they wait for an indictment or a prosecutor's complaint before treating the right as attached, because a first appearance after arrest is enough even when no formal charge has been filed.47
No Prosecutor Required
The first Rothgery holding identifies the event that attaches the right, and a second holding addresses who must be involved in that event. In Rothgery v. Gillespie County the Court held that attachment at the initial appearance does not also require that a prosecutor, as distinct from a police officer, be aware of the proceeding or involved in its conduct.49 The trigger is a judicial proceeding at which the accusation is announced and liberty is restricted. What particular officials on the government's side happen to know about that proceeding forms no part of the test.
The Fifth Circuit had reached the opposite result, and its reasoning shows why the question arises at all. It considered itself bound by circuit precedent holding that the right did not attach at Rothgery's hearing because the relevant prosecutors were unaware of, and uninvolved in, the arrest and the appearance, and because nothing indicated that the officer at the hearing could commit the State to prosecute without a prosecutor's participation.50 The theory had surface appeal, because attachment depends on the government having committed itself to prosecute, and in many places the power to make that commitment belongs to the prosecutor.51 In Rothgery the State had brought the arrestee before the magistrate on a police affidavit of probable cause, with no showing that the local prosecutor knew of it or took part. The lower court therefore tried to separate the earlier first-appearance cases on the ground that they involved a prosecutor's decision to charge, reflected in a complaint the prosecutor had authorized.52
The Supreme Court rejected that distinction. Whether a first appearance reflects a sufficient commitment to prosecute does not depend on whether an officer's probable cause affidavit counts as a formal complaint under state law, or on the "allocations of power among state officials under state law."53 The appearance itself supplies the commitment, because the magistrate tells the arrestee of the charges set out in the affidavit and imposes restrictions on liberty, through the terms of pretrial release, in aid of the prosecution, which made the State's relationship with the defendant "solidly adversarial."54 The inquiry looks to the function the proceeding performs rather than to variations in who holds charging authority or what the charging paper is called.55 On the Court's reasoning, Rothgery marks the pole where the right attached even though no prosecutor knew of the hearing.
The structure of the alternative shows why a federal standard should ignore those internal arrangements. Jurisdictions divide charging authority differently: in some, a prosecutor files a complaint by the first appearance, while in many others no prosecutor's charging document exists at that point, and probable cause and bond are decided on sworn information from the police.56 Under a test keyed to prosecutorial involvement, two arrestees who stand before magistrates in identical hearings, hear the same accusation, and receive the same bail would hold different constitutional rights, depending only on the county's division of duties between police and prosecutors. Courts would also have to look behind each hearing and reconstruct who told whom about the arrest, a factual inquiry into the government's internal communications that the defendant is poorly placed to prove. A prosecutor-based test would also reward delay, since a county that wished to postpone the cost of appointing counsel could keep prosecutors out of early hearings and thereby postpone attachment. A rule that looks only at the proceeding the magistrate conducts removes each of those problems, because the answer can be read from what happened in court.
The contrast the rule implies is an illustration of the same reasoning rather than a separate holding of the Court.
The two situations differ in one variable, whether a judicial proceeding has taken place. Prosecutorial knowledge is complete in the hypothetical and absent in Rothgery, and the results run in the opposite direction from what a test based on prosecutorial awareness would predict. A prosecutor's secret charging decision does not attach the right, and a magistrate's hearing held without any prosecutor does.
On an exam stem describing an arrest, a hearing before a magistrate on a police affidavit, and no prosecutor anywhere in sight, the right has attached if the hearing announced the accusation and restricted liberty. Students lose this issue when they argue that attachment waits on a prosecutor's involvement, because the Court rejected that condition and looked to the judicial proceeding alone.57
What Attachment Triggers
Attachment settles whether the Sixth Amendment right to counsel exists in a given case, and a second question remains about what the state must do for the defendant once the right exists. The amendment gives the accused the right “to have the assistance of counsel for his defense” in all criminal prosecutions.59 Its two clauses do different work. The clause about criminal prosecutions fixes when the right starts, which the preceding sections traced to the initial appearance or another adversary proceeding. The clause about assistance for the defense says what the right then demands, which is a lawyer positioned to help the accused wherever the defense could be harmed. Reading the clauses separately explains why the state may need some time to supply a lawyer and still owes one, and it yields two obligations that the rest of this section develops.
The first obligation concerns timing. In Rothgery v. Gillespie County the Court held that the Texas hearing marked the point of attachment and that the state was therefore obliged to appoint counsel within a reasonable time once the defendant asked for help.60 Each half of that formulation has its own logic. The request starts the clock because an arrest alone does not tell the state whether a particular defendant can afford a lawyer, wants one, or plans to hire one privately, and the magistrate's usual task at the first appearance is to find that out and set the appointment process in motion.61 The reasonableness standard then leaves room for the ordinary administrative steps of confirming indigence and assigning a lawyer, while forbidding the open-ended waiting that a policy of withholding counsel until indictment produces.
Rothgery's own history shows what unreasonable delay looks like. After the hearing he made several oral and written requests for appointed counsel that went unheeded, he was indicted the following January and rearrested with bail raised to $15,000, and he sat in jail for three weeks when he could not post it.62 A lawyer was assigned only six months after the hearing, and that lawyer promptly obtained a bail reduction and assembled records showing that Rothgery had never been convicted of a felony, after which the charges were dismissed.63 Reported experience elsewhere is similar: a man arrested in a case of mistaken identity waited six weeks in jail for a lawyer, and seven more weeks passed before it became clear that police had the wrong person.64 Delay of that kind costs the defendant liberty during the very interval when bail is set and when records that undercut the charge can still be gathered, which is why the obligation runs from attachment rather than from the later indictment.
The second obligation looks ahead. After formal adversary proceedings begin, the right applies at all critical stages of the prosecution, so the state must see that a lawyer is in place when one arrives.65 A critical stage is a point in the prosecution at which the accused's rights or defenses might be affected by the absence of legal representation.66 A post-indictment lineup previews the idea. In United States v. Wade the defendant was arrested and charged with a bank robbery, and a few days later the government placed him in a lineup before two bank employees without notice to his appointed counsel; the Court held that the lineup was a critical stage, because the Sixth Amendment guarantees counsel at critical stages and counsel's presence at such a confrontation was needed to protect the accused.67 Wade shows the two obligations working in sequence: a lawyer had already been appointed, and the live question was whether a particular event required that lawyer's presence. How courts answer that question stage by stage is the subject of the next reading.
Neither obligation means that a lawyer must stand beside the defendant at every moment after attachment. Appointment is a process that takes time, and the first appearance usually occurs within 24 or 48 hours of arrest.68 A rule demanding a lawyer's presence from the first instant would either delay that hearing, which would lengthen the defendant's detention, or leave the state in violation on the day the right attached. In ordinary practice, indigent defendants are not represented by appointed counsel at the first appearance, although retained counsel may take part, and the preliminary hearing is usually the first proceeding at which appointed counsel appears.69 Rothgery itself left open whether a standard first appearance is a critical stage that requires counsel on the spot, so attachment alone does not answer that question.70
A concurring opinion by Justice Alito approaches the same point from the other side, and it states a view rather than a holding. On that view, attachment marks only the start of the prosecution and does not by itself dictate when counsel must act; the Sixth Amendment instead requires that counsel be appointed as far ahead of trial and of any critical stage as is necessary for effective assistance.71 The concurrence ties timing to the purpose of the right. The Sixth Amendment protects a right to effective assistance, because a lawyer who merely stands beside the accused does not secure a fair adversary trial.72 Counsel named on the eve of a hearing has no chance to investigate or prepare, so the majority's reasonable-time-after-request formulation and the concurrence's effectiveness formulation converge on one practical limit: the state cannot sit on a request, and it cannot appoint so late that the lawyer is unable to prepare.
Set that scene beside Rothgery. Both defendants were indigent, both appeared before a magistrate, and both asked for counsel, so the variable that moved the answer is whether the request was acted on within a reasonable time. The assumption that Monday's appearance was a standard one matters, because an appearance that forces a prejudicial election, such as a guilty plea later used at trial, can itself be a critical stage requiring counsel.73
On an exam stem in which an indigent defendant asks the magistrate for a lawyer and the county answers that none will be assigned until indictment, the right has attached at the first appearance, so the county owes appointment within a reasonable time after the request and owes counsel at later critical stages.74 Students lose this issue when they read attachment as a promise of a lawyer in the courtroom at the first appearance, because the attachment obligation concerns timely appointment and later critical stages, and whether the first appearance is itself a critical stage is a separate question.75
Counsel Before Attachment
Attachment separates a suspect from an accused, and the Sixth Amendment right to counsel belongs only to the accused. A person arrested and held at a police station, before any complaint has been filed and before any magistrate has seen the case, has not crossed that line. Detention by police and even a formal arrest do not begin adversary judicial proceedings.77 The same is true of a warrantless arrest and of an investigation that has focused on one person, which Hoffa v. United States treated as insufficient.78 Hiring a lawyer early leaves the line where it was, because Moran v. Burbine reasoned that the time of attachment should not vary with the fortuity of whether the suspect or the family happened to retain counsel.79 What changes the suspect's position is the first judicial step, which the preceding sections traced to the initial appearance.
A suspect in custody is not left without a claim to a lawyer during that interval, because a separate guarantee operates there. In Miranda v. Arizona the Court grounded a right to counsel in the Fifth Amendment privilege against compelled self-incrimination, reasoning that custodial interrogation is so inherently pressuring that it implicates the privilege even though police have no legal power to compel an answer.80 The lawyer is the main protection the Court chose. A person held for questioning must be clearly told of the right to consult a lawyer and to have the lawyer present during the interrogation, and that warning is an absolute prerequisite to questioning.81 Because the source of this right is the privilege, custody combined with interrogation triggers it, and no step in a prosecution is required. It can therefore arise within hours of an arrest, long before any charge exists.
The right does not turn on wealth, and Miranda built that into two features that each have their own logic. The first is the content of the warning. The suspect must be told that a lawyer will be appointed if the suspect is indigent, because a bare statement that a lawyer may be consulted would often be heard to mean that only a suspect who already has a lawyer, or can pay for one, may use the right.82 The risk is concrete, since the people most often interrogated are poor, and a warning that sounded hollow to them would give the right mainly to those who need it least. The second feature is the cutoff. Once a suspect says that a lawyer is wanted, the interrogation must stop until a lawyer is present, because the setting of custodial questioning would otherwise work to overcome the free choice the suspect has just exercised.83 The rule has a limit as well. Police need not keep a station-house lawyer on hand, and they may decline to provide counsel during a reasonable period of field investigation so long as they do not question the suspect in the meantime.84 Police can therefore always satisfy the rule by waiting, and a warning that omits the appointment right is fatally defective.85
The Fifth Amendment source of the right also marks its boundary. In Kirby v. Illinois the question was whether an arrestee had a right to counsel at a police station showup conducted before any adversary judicial proceeding had begun.86 The Court held that Miranda had no application, because Miranda rests on the privilege against self-incrimination and on the theory that custodial interrogation is inherently coercive, while a showup compels the suspect only to exhibit physical characteristics and not to disclose knowledge.87 The Sixth Amendment gave no help either, since that right attaches only at or after the initiation of adversary judicial proceedings, and none had begun.88 Placed beside Miranda, the two cases differ in one variable. The same pre-charge suspect in custody is entitled to the warnings and to a halt in questioning when police want testimony, and is entitled to neither when police merely have a witness look at the suspect.89 Schmerber v. California points the same way. A suspect who resisted a blood test on a lawyer's advice had no Sixth Amendment claim, because the privilege did not reach the extraction of blood and counsel's mistaken advice could not create a broader right.90
The two rights run on different triggers, and once attachment occurs they can apply together. The Sixth Amendment right, unlike the right under Miranda, does not depend on custody once adversary proceedings have begun.91 In Estelle v. Smith a defendant who had already been indicted and given appointed counsel was examined by a psychiatrist under a court order. The Court held that the Fifth Amendment barred use of the defendant's statements because no warnings had been given, and that the defendant also had a Sixth Amendment right to counsel before submitting to the examination.92 How the two rights govern waiver, invocation, and deliberate elicitation by government agents belongs to the law of police interrogation and is not developed here.
One remark in Miranda also looks ahead. The Court compared denying counsel to an indigent at interrogation, while allowing it to those who can pay, with the denial at trial and on appeal condemned in Gideon v. Wainwright and Douglas v. California, and found it no more supportable.93 That comparison treats a wealth-based gap in access to counsel as equally indefensible at each stage, and the next section takes up what appointment requires once the Sixth Amendment right has attached, beginning with indigent felony defendants.
On an exam stem that describes an arrest, custodial questioning, and no court appearance yet, the right-to-counsel analysis runs under the Fifth Amendment. The questions are whether the warnings were given, including the appointment warning for an indigent suspect, and whether questioning continued after the suspect asked for a lawyer.94 A claim that the Sixth Amendment was violated fails on those facts. Students lose this issue by treating arrest alone as the start of the Sixth Amendment right, when that right attaches only once adversary judicial proceedings begin.95