When Does a Defendant Have the Right to Assistance of an Attorney? 
Critical Stages of the Criminal Justice Process 
In White v. Maryland, 373 U.S 59 (1963), the Court found that defendants are entitled to the right to 
counsel at any critical stage of the proceeding, defined as a stage in which he or she is compelled to make 
a decision which may later formally be used against him or her. The Court has found the following court 
procedures to be critical stages: 
• 
The initial appearance in which the defendant enters a non-binding plea–White v. Maryland, 
373 U.S.59 (1963). 
• 
A preliminary hearing–Coleman v. Alabama, 399 U.S. 1 (1970). 
• 
A lineup that includes a previously indicted defendant–Wade v. United States, 388 U.S. 218 
(1967) and Gilbert v. California, 388 U.S. 263 (1967). 
 During Other Proceedings 
The Court has extended the right to counsel to psychiatric examinations, juvenile delinquency 
proceedings 
7, civil commitments proceedings 
8and probation and parole hearings (see, below). Further, 
the court in Estelle v. Smith, 451 U.S. 454 (1981), held that a defendant charged with a capital crime 
and ordered by the court to be examined by a psychiatrist, to evaluate possible future dangerousness, 
was entitled to consult with counsel.  Similarly, in Satterwhite v. Texas, 486 U.S. 249 (1988),  the Court 
found prejudicial error occurs when defense counsel was not appointed to represent a defendant subjected 
to a psychiatric evaluation. The Court further held that counsel must be made aware of the projected 
psychiatric evaluation before it occurs. 
During Probation and Parole Revocation Hearings 
In Mempa v. Rhay, 389 U.S. 128 (1967), 17-year-old Mempa was placed on probation for two years 
after he pleads guilty to “joyriding”. About four months later, the prosecutor moved to have petitioner’s 
probation revoked alleging that Mempa had committed a burglary while on probation. Mempa, who was 
not represented by counsel at the probation revocation hearing. admitted being involved in the burglary. 
The court revoked his probation based on his admission to the burglary. The U.S. Supreme Court held that 
Mempa should have had counsel to assist him in his hearing. 
Five years later, in Gagnon v. Scarpelli, 411 U.S. 778 (1973), the state sought to revoke defendant’s 
probation.  Originally, Gagnon was sentenced to fifteen years of imprisonment for armed robbery, but the 
judge had suspended the imposition of sentence and placed him instead on seven years of probation. The 
Court found that the probation revocation hearing did not meet the standards of due process. Because a 
probation revocation involves a loss of liberty, the probationer was entitled to due process. The Court did 
7. In re Gault, 387 U.S. 1 (1967) 
8. Stefan, S. (1985). Right to Counsel in Civil Commitment Proceedings. Mental & Physical Disability L. Rep., 9, 230. 
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