Sorting Stages in Practice

Sorting Stages in Practice

The earlier sections each took a single event, such as an arraignment, a lineup, or a photographic display, and asked whether the accused was entitled to a lawyer there. An exam rarely labels an event with the case it resembles, so those results need to become a method that can sort an event the reader has not seen before. Federal practice supplies the simplest baseline: Rule 44(a) entitles a defendant who cannot obtain counsel to appointed counsel at every stage of the proceeding from initial appearance through appeal, unless the defendant waives.¹ The constitutional rule that binds the States is less precise. Once a suspect has become the accused, the Sixth Amendment gives a right to a lawyer at all critical stages, and what counts as critical has largely been settled by example.² The method below therefore works backward from the examples to the reasons that sort them, and it runs through two gates.

The first gate asks whether the right has attached at all, and nothing else matters until it has. The right belongs to the accused in a criminal prosecution, which requires that the government commit to prosecuting by initiating adversary criminal proceedings.³ An indictment or information counts as that commitment, and if one was filed before arrest, the right attaches when the arrest is made. A first appearance in court after arrest also triggers the right, even if no formal charge has been filed.⁴ A mere arrest without charges does not.⁵ The line sits there for a functional reason. Until the government has committed itself, the person is a suspect whom it may never prosecute, but once it has committed, the two sides stand opposed in a pending case, and the accused needs a trained advocate on their side. Before attachment, custodial questioning is still governed by the Fifth Amendment, under which Miranda requires police to tell a person in custody about the right to refuse to answer and the right to an appointed lawyer.⁶

The second gate looks at the event itself. Once the right has attached, all in-court proceedings, including pretrial hearings, trial, and sentencing, are critical and require a defense lawyer.⁷ Out-of-court events call for more thought, and the useful question is what the accused stands to lose if no lawyer is there. Three losses recur. The accused may be bound by something done at the event, a defense may be forfeited if it is not raised at that moment, or an unfair procedure may leave a mark that the trial can never expose. The arraignment discussion showed a defense that could be lost if no one raised it in time, and the lineup discussion showed suggestion by the police that an accused could not easily expose later. The same inquiry explains the cases that come out the other way. Photographic displays and government interviews of witnesses are not critical stages, so the accused has no right to a lawyer at either one, even after formal judicial proceedings have begun.⁸ At neither event is the accused confronted by the government, and what happens at each can be tested at trial through the photographs and through cross-examination of the witnesses.

Because the two gates produce a sequence, the method is best run as a short exam checklist applied in order:

The first step is where students most often go wrong. A student who treats arrest alone as the start of the prosecution will demand counsel at a lineup held before any charge or first appearance, and that demand fails because a mere arrest does not make the suspect an accused.¹³ The mistake also runs the other way, since passing the first gate does not make every later event critical, as the witness interview and the photographic display show.

The two groups that result are taken up next, with reasons for each entry. Some of the entries come from decisions outside this reading and are given as summary descriptions of what the Court held, so the reasons offered for them come from the sorting questions above and not from a full study of each opinion. The first group collects the events at which counsel is required, and the second collects the events at which it is not.

Stages Requiring Counsel

Once the right to counsel has attached, it does not follow the accused into every moment of the prosecution. The Sixth Amendment demands a lawyer's presence and help only at critical stages, meaning the steps at which substantial rights of the accused may be affected by counsel's absence.¹⁵ The standard looks to such factors as whether the accused must make a choice through which available defenses may be irretrievably lost, whether counsel is needed at that point to mount a meaningful challenge later, and whether the confrontation between the accused and the government carries potential substantial prejudice that a lawyer could help avoid.¹⁶ The events collected here meet those factors in different ways, and the list below pairs each event with the reason it earns a place.

The entries sort into three groups, each defined by what the accused would lose without a lawyer, and the cases already taught fit into those groups. The first group contains the events at which the accused must make a choice that binds, and the arraignment is the model. In Hamilton v. Alabama, local law treated defenses such as insanity as irretrievably lost if they were not raised at arraignment, and the Court found a constitutional violation in the state's failure to provide counsel.²⁴ The Court refused to make the result depend on proof that the accused would have raised a lost defense, because the degree of prejudice can never be known and only a lawyer present at the time could have told the accused every defense available.²⁵ That reasoning closes a circle the accused could never escape alone, since demanding proof of what a lawyer would have advised asks the accused to prove advice that the lawyer's absence prevented. A first appearance and plea bargaining belong in the same group because each asks the accused to say or decide something the prosecution can later use. The plea setting shows the point clearly: no one has a right to be offered a deal, yet once an offer exists the accused is entitled to effective representation in weighing it, and a fair trial afterward does not erase counsel's earlier errors.²⁶

The second group contains confrontations in which the prosecution's investigative machinery is working on the accused and a layperson cannot see how it operates. In Wade the Court held that a corporeal lineup after the formal commencement of adversary proceedings is a critical stage, so officers must arrange for counsel or secure a valid waiver.²⁷ The rule reaches showups as well, which is the extension taught through Moore.²⁸ A single suspect presented alone to a witness offers even less protection against suggestion than a row of similar-looking participants, so the case for a lawyer is stronger at a showup, not weaker. The danger is real because eyewitness identifications between strangers are among the least reliable forms of evidence and, together with false confessions, account for the majority of mistaken convictions.²⁹ A lawyer at the confrontation can watch how the suspect was presented and later describe it to the jury, whereas without one only the officers and witnesses who ran the procedure can say what happened, so the unfairness cannot be rebuilt at trial.

The consequence of that refusal is that the results of the lineup are suppressed, and the prosecution may be barred from an in-court identification unless it shows by clear and convincing evidence that the identification is not the fruit of the tainted lineup.³⁰ The elicitation cases apply the same protection to statements. In Massiah v. United States an indicted and arraigned defendant, released on bail, was drawn into conversation by a co-conspirator wearing a wire, and the Sixth Amendment was violated when his own words, deliberately elicited by federal agents in his lawyer's absence, were used against him at trial.³¹ Brewer v. Williams shows that indirect methods count: officers transporting an arraigned suspect, whose lawyer had told them not to question him, delivered a speech about giving the victim a proper Christian burial, and the speech was held a deliberate effort to elicit a response.³² In both cases the accused faced the government's investigators without the one person trained to tell the accused to stay silent.

The third group contains events whose unfairness would be locked in before the trial begins, and the preliminary hearing is the leading example. In Coleman v. Alabama the Court identified four ways a lawyer helps there: skilled examination of witnesses may expose fatal weaknesses that lead the magistrate to refuse to bind the accused over, the questioning can produce impeachment material or preserve the testimony of a witness who may not appear at trial, counsel can discover the state's case and begin preparing a defense, and counsel can argue for matters such as an early psychiatric examination or bail.³³ Each function protects something the trial cannot later restore, because a missed chance to cross-examine at the hearing cannot be replayed. A state is free to omit a preliminary hearing from its process, but if it provides one, the hearing is a critical stage.³⁴

That rule applies to one kind of hearing only. A second event also carries the name preliminary hearing: a determination of whether there is probable cause to detain the arrested person pending trial, of the kind considered in Gerstein v. Pugh, a decision outside this reading that is summarized here only. Nothing decided at a detention-only hearing binds the accused on the merits, and it does not carry the four functions Coleman describes, so it falls outside the list of critical stages. Students lose this point when they see the words preliminary hearing and stop, because the purpose of the hearing decides whether counsel is required.

Trial and sentencing carry the same logic at full strength. A person too poor to hire a lawyer cannot be assured a fair trial without one, and the Court has treated sentencing as critical even when it is imposed in conjunction with a probation revocation.³⁵ The standard described at the start of this section comes from Mempa v. Rhay, and a defendant sentenced after conviction without a lawyer loses the chance to argue about the sentence at the moment the court fixes it.³⁶ For a defendant who cannot pay, the right to appointed counsel at these stages also depends on the sentence actually imposed, so where the charges do not result in imprisonment the state need not supply a lawyer.³⁷

The first appeal is often collected with these stages but rests on a different source. The Sixth Amendment does not govern the appellate process, yet the Due Process and Equal Protection Clauses guarantee counsel on a first appeal, and no such guarantee covers a second, discretionary appeal or a collateral attack such as habeas corpus.³⁸ In federal practice, Rule 44(a) carries appointed counsel through appeal for a defendant who cannot obtain a lawyer.³⁹ An answer that counsel is required on a first appeal is therefore correct, but the reason to give is due process and equal protection, not the critical-stage test.

Stages Without Counsel

The events that fall outside the right to counsel teach as much as the critical stages do, because each one lacks the feature that would have made a lawyer's absence costly. The sorting question stays the same as before: could a missing lawyer cost the accused a right, a defense, or the ability to challenge the government's evidence? An event stays outside the right when the answer is no, and the reasons fall into three families. Scientific and physical evidence can be tested and reproduced at trial, events that precede the filing of charges come before the right attaches, and photographic displays and witness interviews do not put the accused face to face with the government. The entries come first, and the reasoning for each family follows.

The first family, scientific and physical evidence, follows from what a lawyer at the event could actually accomplish. In Wade the government argued that a lineup is no different from taking an accused's fingerprints, blood sample, clothing, or hair, and the Court answered that those procedures do not carry the risks that make a lineup dangerous.⁴⁹ Knowledge of scientific techniques is widely available and the variables in them are few, so the accused can mount a meaningful challenge at trial by cross-examining the government's experts and presenting experts of their own.⁵⁰ A blood analysis can be rerun by a defense laboratory, whereas a lineup identification cannot be rerun, because a witness who has picked out the accused is unlikely to retreat from that choice later.⁵¹ In Gilbert v. California the Court applied the same reasoning to handwriting exemplars and held that taking them is not a critical stage.⁵² A lawyer might still advise the suspect whether to give an exemplar or to refuse and accept the consequences, but that advice concerns a choice tied to no constitutional right the lawyer could protect. The same point appears in Schmerber v. California, where the Fifth Amendment was held not to cover the taking of a blood sample, which left no right of the suspect with which counsel could assist.⁵³

The second family depends on timing. The Sixth Amendment protects the accused in a criminal prosecution, and the government becomes the accuser only when it commits to prosecuting by initiating adversary proceedings, which happens through an indictment or information or, for an arrested suspect, at the first court appearance.⁵⁴ A mere arrest without charges leaves the suspect short of that line, so an identification procedure held before the right attaches falls outside the Sixth Amendment.⁵⁵ The same limit explains why a person who is only the target of a grand jury investigation has no Sixth Amendment right to a lawyer.⁵⁶ Before the line is crossed, the adversary relationship that the amendment protects has not begun, and other rules fill the gap. The Fifth Amendment privilege against self-incrimination, for example, entitles any person in custody to be told of the right to a lawyer before questioning under Miranda, with no charge required.⁵⁷

The third family is the one that surprises students, because it holds even after the right has attached. In United States v. Ash the Court held that the accused has no Sixth Amendment right to counsel at a photographic identification, because a photo display is not a critical stage.⁵⁸ The accused is absent from a photo display, so it is not a trial-like confrontation, and the lawyer's function at the stages the Court had recognized remained what it is at trial, which is to help the accused cope with legal problems and meet the prosecution as an adversary.⁵⁹ Without counsel at a photo display, officers cannot trick or take advantage of an accused who is not in the room, photographic identifications are relatively easy to reconstruct so cross-examination at trial is not impaired, and no trained observer is needed to perform trial-like functions.⁶⁰ The result holds whether the display occurs before arrest, after arrest, or after indictment.⁶¹ Prosecutors' interviews of witnesses follow the same logic, since defense counsel has an equal ability to seek out and interview those witnesses independently.⁶² Three dissenters would have drawn the line elsewhere, reasoning that the risk of suggestion is the same with photographs and that irregularities are less likely to come to light when the accused is absent, which confirms that the accused's presence is the hinge of the majority's rule.⁶³

Change the setting and the answer reverses. Put the same witnesses in a room with the charged suspect, in a lineup or a one-on-one showup, and counsel is required under Wade and Moore v. Illinois.⁶⁴ The presence of the accused is the fact that moves the result. A live confrontation lets suggestion operate in ways that only the officers and witnesses present can later describe, and the identification may be effectively settled there, before trial.⁶⁵

Losing the Sixth Amendment argument does not end the inquiry. A photographic display, or any other identification, may still be challenged under due process if the procedure was unnecessarily suggestive and conducive to irreparable misidentification.⁶⁶ Students lose this point when they treat no right to counsel as the end of the constitutional analysis, because the Sixth Amendment is only one source of protection. A defendant whose lawyer was shut out of a photo spread therefore turns to due process and asks whether the display itself was rigged, and a display that was not suggestive stays admissible.⁶⁷

A few later proceedings fall outside the critical-stage doctrine for a different reason, which is that the Sixth Amendment does not govern the appellate process. A first appeal carries counsel through due process and equal protection, as the earlier discussion of stages requiring counsel showed, but there is no right to counsel for a second, discretionary appeal and none for a collateral attack such as a habeas corpus proceeding.⁶⁸ The treatment of a hearing that only sets bail is less settled, since the right has been described both as absent there and as naturally extending to it, which is why the earlier list left a bail-only first appearance open.⁶⁹