The Attachment Threshold

The Attachment Threshold

Before asking whether an event is a critical stage, the analysis has to establish that a criminal prosecution exists for the Sixth Amendment to attach to. The plurality in Kirby v. Illinois, as Moore v. Illinois restates it, held that the counsel right announced in Wade and Gilbert reaches a corporeal identification (a confrontation in which the witness sees the accused in person, as at a lineup or showup) only when the confrontation occurs “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”¹ The reason is textual. Initiating those proceedings “marks the commencement of the 'criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.”² That makes attachment a gate: an identification that fails it never reaches the critical-stage question, and one that passes it moves on to the test taken up in the next section.

The line falls at the formal step because of what that step signals. Once the government has filed a charge or brought the accused before a court, it has committed itself to prosecute, and the accused finds “himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.”³ A lawyer has a defined job at that point, which is to meet an adversary who has already chosen to proceed. Before it, the police are still investigating and may not yet have settled on anyone, so the adversary-process rationale of the Sixth Amendment has nothing to attach to. Using a formal act as the marker has a practical consequence, because timing then controls the outcome: a confrontation held an hour before the first court appearance sits on one side of the gate, and the same confrontation held an hour after sits on the other.⁴

The listed events are alternatives, and an indictment is not required. In Moore the Court of Appeals had read Kirby to demand an indictment, and the Supreme Court rejected that reading. The prosecution there began when the victim's complaint was filed in court, and the preliminary hearing that followed was adversarial: counsel for the State elicited the victim's identification of the uncounseled accused, summarized the State's other evidence, and asked for more time, while the accused had the right to move to dismiss and to suppress.⁵ In Kirby itself, a robbery victim identified the suspect in a one-on-one stationhouse confrontation shortly after arrest and before any charge, and the identification evidence was admissible because adversary proceedings had not begun.⁶ What separates the two cases is whether the government had yet committed itself to prosecute: Moore's accused stood in a filed case, and Kirby's stood only under arrest.

Students most often lose this issue by treating arrest alone as the start of the Sixth Amendment right. An arrest without filed charges does not make the suspect an accused in a criminal prosecution, although the first court appearance after arrest does, even where no indictment or information has yet been filed.⁷

Failing the gate ends the Sixth Amendment inquiry, but the accused keeps a different constitutional protection. Where adversary proceedings have not begun, the Due Process Clause guards against evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.⁸ That separate screen asks about suggestiveness and reliability rather than about whether a lawyer was present, and it is developed below with photographic displays, where it does most of its work. The next section assumes the gate has been passed and asks what makes a particular stage critical.