Right to Counsel – Sixth Amendment and Critical Stages


In a criminal setting, it is commonly known that the accused has a legal right to be represented by an attorney. However, it is probably not as well known that the right to an attorney is limited and only exists during certain phases of a criminal proceeding called “critical stages”. The general right to an attorney is called the “Right to Counsel” and is provided for in the 6th Amendment of the United States Constitution. “Counsel” simply refers to a lawyer or lawyers conducting a case in a court of law.

The 6th Amendment right to counsel should not be confused with the right to an attorney provided in the 5th Amendment. The 5th Amendment deals with Miranda Warnings, which are popularized in the phrases recited by policemen upon arresting a suspect: “You have the right to remain silent…Anything you say can and will be used against you in a court of law…You have the right to an attorney”. The 5th Amendment right applies to police custodial interrogations, while the 6th Amendment right deals with proceedings after formal charges have been filed by the state.

The 6th Amendment right to counsel is very broad and includes such matters as effectiveness of counsel and representing one’s self. This article focuses mainly on the differences between 5th and 6th amendment rights, as well as the critical stages during which the right to counsel may be invoked.

Differences between 5th Amendment and 6th Amendment Rights

As mentioned above, the Constitution provides for the right to an attorney in both the 5th Amendment and the 6th Amendment. There are significant differences between the two.

5th Amendment rights

Under the 5th Amendment, the right to an attorney applies only during a custodial interrogation by the police. A custodial interrogation means that the person is being held in custody by the police for the purposes of interrogation. An example of a custodial interrogation is when a person is detained at the police station for investigation of a crime.

The purpose of the 5th Amendment right is to allow the suspect to consult with an attorney even though formal charges have not been brought, and no arrest has yet been made. (Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]).

During a custodial interrogation, the police are required to recite the Miranda Warnings mentioned above in order to inform the suspect that they are in fact being held in custody for an interrogation. Once the Miranda warnings are read or recited to the suspect, the person may decline to speak by stating that they wish to have a lawyer present. This is called “invoking the 5th Amendment right to an attorney”.

Once the person invokes the 5th Amendment right to an attorney, the police cannot question them any further until a lawyer is present.

6th Amendment Rights

On the other hand, the 6th Amendment “right to counsel” applies after the suspect has already been booked, and formal charges have already been issued against the accused.

The right to counsel “attaches” when formal criminal adversarial proceedings have been initiated (begun), although it only may be invoked at certain points of the proceedings called “critical stages”. (Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 [1985]).

The purpose of the 6th Amendment right to counsel is to ensure that the accused is adequately protected by a lawyer in an adversarial setting. The key word to remember is “adversarial”, meaning that the accused is being confronted by either the opposing party or a state official such as a prosecutor or a judge.

Another major difference between the two rights is that the 5th Amendment right is not offense-specific, while the 6th Amendment right is offense-specific. This means that, during a custodial interrogation, if the suspect invokes the Miranda right, the police may not question them at all, even about different crimes. Under the 6th Amendment right, state officials may not question them about the crime they are being charged for, but they can question them about other crimes.

Critical Stages- Initiation of Criminal Proceedings

The Supreme Court case United States v. Hidalgo, 7 F.3d 1566 [11th Cir. 1993] sets forth a basic definition of a critical stage: “A critical stage of prosecution includes every instance in which the advice of counsel is necessary to ensure a defendant’s right to a fair trial or in which the absence of counsel might impair the preparation or presentation of a defense” (United States v. Hidalgo, 7 F.3d 1566 [11th Cir. 1993]).

The first adversarial setting that an accused typically encounters is the initiation (beginning) of formal criminal proceedings. The case Brewer v. Williams, 430 U.S. 387 names the following situations as instances that initiate criminal proceedings.

  • Appearance in front of a judge for the purpose of issuing formal charges
  • Preliminary hearings
  • Indictments (this is where formal charges are brought against the accused in front of a grand jury)
  • Information (this is like an indictment only it is written and presented by a public official rather than a grand jury)
  • Arraignments

These phases of trial are considered to be “critical stages”, and the accused definitely has the right to counsel during these stages. Also, it is at this point that the right to counsel is said to “attach”, meaning that the accused can now claim their right to counsel. Take note that the initial appearance in court wherein the judge simply informs the accused of their charges and rights is not a critical stage.

Other phases of trial that courts have identified as critical stages are: pretrial hearings related to bail, the suppression of evidence, or the viability of the prosecution’s case(Smith v. Lockhart, 923 F.2d 1314 [8th Cir. 1991]).

“Noncritical stages”-phases of trial during which the accused does not have the right to counsel

There are several phases of trial proceedings that are not considered to be critical stages. Courts refer to these as “noncritical stages”, and the accused does not have the right to have counsel present during them. This is because they are considered to be preliminary matters that are unassociated with the more adversarial phases of prosecution. Examples of noncritical stages are:

· Fingerprint taking and analysis

· Investigative lineups

· Photographic identifications

· Taking samples of blood, clothing, hair, handwriting, or voice samples

· Hearings to determine the existence of probable cause

· Recesses during defendant’s testimony

· Proceedings regarding parole and probation issues

· Post-conviction proceedings

Again, the basic rationale is that such procedures are more administrative and lack the confrontational aspect that requires a lawyer. In other words, absence of an attorney at noncritical stages is not likely to impair the defendant’s right to fair trial or presentation of a defense.

Finally, in misdemeanor cases, the right to counsel is only granted if imprisonment has been imposed on the person. Thus, if the punishment for a misdemeanor crime involves only a fine, then the right to counsel does not attach. The right to counsel is available in all felony cases.

Remedy for violation of Right to Counsel

Denial of counsel during a critical stage has monumental effects on the outcome of the case. This may happen if the accused requests a lawyer during a critical stage, but the court denies or ignores their request. The Supreme Court has held that such denials are an unconstitutional deprivation of a fair trial. (United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 [1984]).The remedy for denial of counsel is that the conviction must be reversed.

Waiver/replacement of counsel

Defendants also have a 6th Amendment right to decline representation by a lawyer and represent themselves in court. Self-representation is also known as pro se representation. The court is required to allow pro se representation, but only if the defendant makes a knowing and intelligent waiver of the right to counsel. Also, the court must inform the person of the potential disadvantages of pro se representation. The defendant must understand that pro se representation involves not only persuasion, but includes knowledge of legal theories and proper court procedures.


Of course, all stages of a criminal trial are important in determining the outcome of the case. However, courts have decided that some phases of trial are “critical”, in the legal sense that they require the presence of a lawyer. It is important to remember that while the right to counsel is a guarantee, it only applies to critical stages wherein the defendant faces an adversarial setting and are at risk of an unfair trial if unrepresented. If you feel that you have been denied the right to counsel during a critical stage of a trial, you may have further legal resource for your case.

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Ken LaMance

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