Introduction

Critical Stages of Prosecution

Introduction

The Sixth Amendment promises that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."¹ The text says nothing about where in the process the lawyer must be allowed to stand beside the accused, and the cases do not read the guarantee as ending at the courtroom door. The reason lies in how criminal cases are now built. When the Bill of Rights was adopted there were no organized police forces as we know them, so the accused confronted the prosecutor and the witnesses at trial, where the evidence was gathered and tested. Modern law enforcement produces confrontations before trial whose results can settle the accused's fate and reduce the trial itself to a formality, and in response the Court construed the guarantee to apply at "critical" stages of the proceedings.²

The single question this reading answers follows from that history: given a challenged event, was it a critical stage at which counsel had to be present? A critical stage is a point in a criminal prosecution when the accused's rights or defenses might be affected by the absence of legal representation.³ The anchor case is United States v. Wade, where a bank robbery suspect was indicted and then placed in a court-ordered lineup before the bank's witnesses without notice to his appointed lawyer, and the Court held that the lineup was a critical stage.⁴ The analysis runs in two steps. The first asks whether the prosecution has formally begun, since the amendment's guarantee is tied to criminal prosecutions. The second asks whether the absence of counsel at this particular event would undermine the accused's right to a fair trial, including the chance to cross-examine the witnesses meaningfully.⁵

This reading assumes that the right to appointed counsel exists in principle and asks only where in the process it must be honored. The answer matters because a prosecution can be won or lost well before the jury is sworn, and an accused left alone at the wrong moment may lose a defense that no later lawyer can recover. The sections below take the steps in order: the attachment threshold, then the critical-stage test itself, then the three events the Court has sorted, which are arraignment, post-charge lineups and showups, and photographic displays. The first section addresses the attachment threshold, because no event can be a critical stage until the prosecution it belongs to has begun.