OPINION OF THE COURT ROTHGERY V. GILLESPIE COUNTY 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-440 WALTER A. ROTHGERY, PETITIONER v. GILLESPIE COUNTY, TEXAS

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[June 23, 2008]

															   Justice Souter delivered the
opinion of the Court.

															   This Court has held that the
right to counsel guaranteed by the Sixth Amendment applies at the
first appearance before a judicial officer at which a defendant is
told of the formal accusation against him and restrictions are
imposed on his liberty. See Brewer v. Williams , 430 U. S. 387 ,
398–399 (1977); Michigan v. Jackson , 475 U. S. 625 , 629, n. 3
(1986). The question here is whether attachment of the right also
requires that a public prosecutor (as distinct from a police
officer) be aware of that initial proceeding or involved in its
conduct. We hold that it does not.

															I

															A

															   Although petitioner Walter
Rothgery has never been convicted of a felony,[ Footnote 1 ] a criminal background check disclosed
an erroneous record that he had been, and on July 15, 2002, Texas
police officers relied on this record to arrest him as a felon in
possession of a firearm. The officers lacked a warrant, and so
promptly brought Rothgery before a magistrate judge, as required by
Tex. Crim. Proc. Code Ann., Art. 14.06(a) (West Supp.
2007).[ Footnote 2 ] Texas law
has no formal label for this initial appearance before a
magistrate, see 41 G. Dix & R. Dawson, Texas Practice Series:
Criminal Practice and Procedure §15.01 (2d ed. 2001), which is
sometimes called the “article 15.17 hearing,” see, e.g., Kirk v. State , 199 S. W. 3d 467, 476–477
(Tex. App. 2006); it combines the Fourth Amendment’s required
probable-cause determination[ Footnote 3 ] with the setting of bail, and is the point at
which the arrestee is formally apprised of the accusation against
him, see Tex. Crim. Proc. Code Ann., Art. 15.17(a).

															   Rothgery’s article 15.17 hearing
followed routine. The arresting officer submitted a sworn
“Affidavit Of Probable Cause” that described the facts supporting
the arrest and “charge[d] that … Rothgery … commit[ted] the offense
of unlawful possession of a firearm by a felon—3rd degree felony
[Tex. Penal Code Ann. §46.04],” App. to Pet. for Cert. 33a. After
reviewing the affidavit, the magistrate judge “determined that
probable cause existed for the arrest.” Id. , at 34a. The
magistrate judge informed Rothgery of the accusation, set his bail
at $5,000, and committed him to jail, from which he was released
after posting a surety bond. The bond, which the Gillespie County
deputy sheriff signed, stated that “Rothgery stands charged by
complaint duly filed … with the offense of a … felony, to wit:
Unlawful Possession of a Firearm by a Felon.” Id. , at 39a.
The release was conditioned on the defendant’s personal appearance
in trial court “for any and all subsequent proceedings that may be
had relative to the said charge in the course of the criminal
action based on said charge.” Ibid. Rothgery had no money for a lawyer and made
several oral and written requests for appointed counsel,[ Footnote 4 ] which went
unheeded.[ Footnote 5 ] The
following January, he was indicted by a Texas grand
jury for unlawful possession of a firearm by a felon, resulting in
rearrest the next day, and an order increasing bail to $15,000.
When he could not post it, he was put in jail and remained there
for three weeks. On January 23, 2003, six months
after the article 15.17 hearing, Rothgery was finally assigned a
lawyer, who promptly obtained a bail reduction (so Rothgery could
get out of jail), and assembled the paperwork confirming that
Rothgery had never been convicted of a felony. Counsel relayed this
information to the district attorney, who in turn filed a motion to
dismiss the indictment, which was granted. B Rothgery then brought
this 42 U. S. C. §1983 action against respondent Gillespie
County, claiming that if the County had provided a lawyer within a
reasonable time after the article 15.17 hearing, he would not have
been indicted, rearrested, or jailed for three weeks. The County’s
failure is said to be owing to its unwritten policy of denying
appointed counsel to indigent defendants out on bond until at least
the entry of an information or indictment.[ Footnote 6 ] Rothgery sees this policy as violating his
Sixth Amendment right to counsel.[ Footnote 7 ] The District Court
granted summary judgment to the County, see 413 F. Supp. 2d
806, 807 (WD Tex. 2006), and the Court of Appeals affirmed, see 491
F. 3d 293, 294 (CA5 2007). The Court of Appeals felt itself
bound by Circuit precedent, see id. , at 296–297 (citing Lomax v. Alabama , 629 F. 2d 413 (CA5 1980),
and McGee v. Estelle , 625 F. 2d 1206 (CA5
1980)), to the effect that the Sixth Amendment right to counsel did
not attach at the article 15.17 hearing, because “the relevant
prosecutors were not aware of or involved in Rothgery’s arrest or
appearance before the magistrate on July 16, 2002,” and “[t]here is
also no indication that the officer who filed the probable cause
affidavit at Rothgery’s appearance had any power to commit the
state to prosecute without the knowledge or involvement of a
prosecutor,” 491 F. 3d, at 297. We granted certiorari, 552 U. S.
___ (2007), and now vacate and remand. II The Sixth Amendment
right of the “accused” to assistance of counsel in “all criminal
prosecutions”[ Footnote 8 ] is
limited by its terms: “it does not attach until a prosecution is
commenced.” McNeil v. Wisconsin , 501 U. S. 171 , 175 (1991); see also Moran v. Burbine , 475 U. S. 412 , 430
(1986). We have, for purposes of the right to counsel, pegged
commencement to “ ‘the initiation of adversary judicial
criminal proceedings—whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment,’ ” United States v. Gouveia , 467 U. S. 180 , 188 (1984) (quoting Kirby v. Illinois , 406 U. S. 682 , 689
(1972) (plurality opinion)). The rule is not “mere formalism,” but
a recognition of the point at which “the government has committed
itself to prosecute,” “the adverse positions of government and
defendant have solidified,” and the accused “finds himself faced
with the prosecutorial forces of organized society, and immersed in
the intricacies of substantive and procedural criminal law.” Kirby , supra , at 689. The issue is
whether Texas’s article 15.17 hearing marks that point, with the
consequent state obligation to appoint counsel within a reasonable
time once a request for assistance is made. A When the
Court of Appeals said no, because no prosecutor was aware of
Rothgery’s article 15.17 hearing or involved in it, the court
effectively focused not on the start of adversarial judicial
proceedings, but on the activities and knowledge of a particular
state official who was presumably otherwise occupied. This was
error. As the
Court of Appeals recognized, see 491 F. 3d, at 298, we have
twice held that the right to counsel attaches at the initial
appearance before a judicial officer, see Jackson , 475 U.
S., at 629, n. 3; Brewer 430 U. S., at 399. This first
time before a court, also known as the “ ‘preliminary
arraignment’ ” or “ ‘arraignment on the
complaint,’ ” see 1 W. LaFave, J. Israel, N. King, & O.
Kerr, Criminal Procedure §1.4(g), p. 135 (3d ed. 2007), is
generally the hearing at which “the magistrate informs the
defendant of the charge in the complaint, and of various rights in
further proceedings,” and “determine[s] the conditions for pretrial
release,” ibid . Texas’s article 15.17 hearing is an
initial appearance: Rothgery was taken before a magistrate judge,
informed of the formal accusation against him, and sent to jail
until he posted bail. See supra , at 2–3.[ Footnote 9 ] Brewer and Jackson control. The Brewer defendant surrendered to the police after a warrant was out for his
arrest on a charge of abduction. He was then “arraigned before a
judge … on the outstanding arrest warrant,” and at the arraignment,
“[t]he judge advised him of his Miranda [v. Arizona, 384 U. S. 436 (1966)]
rights and committed him to jail.” Brewer , 430 U. S., at
391. After this preliminary arraignment, and before an indictment
on the abduction charge had been handed up, police elicited
incriminating admissions that ultimately led to an indictment for
first-degree murder. Because neither of the defendant’s lawyers had
been present when the statements were obtained, the Court found it
“clear” that the defendant “was deprived of … the right to the
assistance of counsel.” Id. , at 397–398. In plain terms,
the Court said that “[t]here can be no doubt in the present case
that judicial proceedings had been initiated” before the defendant
made the incriminating statements. Id. , at 399. Although
it noted that the State had conceded the issue, the Court
nevertheless held that the defendant’s right had clearly attached
for the reason that “[a] warrant had been issued for his arrest, he
had been arraigned on that warrant before a judge in a … courtroom,
and he had been committed by the court to confinement in jail.” Ibid .[ Footnote
10 ] In Jackson ,
the Court was asked to revisit the question whether the right to
counsel attaches at the initial appearance, and we had no more
trouble answering it the second time around. Jackson was
actually two consolidated cases, and although the State conceded
that respondent Jackson’s arraignment “represented the initiation
of formal legal proceedings,” 475 U. S., at 629, n. 3, it
argued that the same was not true for respondent Bladel. In
briefing us, the State explained that “[i]n Michigan, any person
charged with a felony, after arrest, must be brought before a
Magistrate or District Court Judge without unnecessary delay for
his initial arraignment.” Brief for Petitioner in Michigan v. Bladel , O. T. 1985, No. 84–1539, p. 24. The State
noted that “[w]hile [Bladel] had been arraigned … , there is also a
second arraignment in Michigan procedure … , at which time
defendant has his first opportunity to enter a plea in a court with
jurisdiction to render a final decision in a felony case.” Id. , at 25. The State contended that only the latter
proceeding, the “arraignment on the information or indictment,” Y.
Kamisar, W. LaFave, J. Israel, & N. King, Modern Criminal
Procedure 28 (9th ed. 1999) (emphasis deleted), should trigger the
Sixth Amendment right.[ Footnote
11 ] “The defendant’s rights,” the State insisted, “are fully
protected in the context of custodial interrogation between initial
arraignment and preliminary examination by the Fifth Amendment
right to counsel” and by the preliminary examination
itself.[ Footnote 12 ] See Bladel Brief, supra, at 26. We flatly rejected the
distinction between initial arraignment and arraignment on the
indictment, the State’s argument being “untenable” in light of the
“clear language in our decisions about the significance of
arraignment.” Jackson , supra , at 629, n. 3.
The conclusion was driven by the same considerations the Court had
endorsed in Brewer : by the time a defendant is brought
before a judicial officer, is informed of a formally lodged
accusation, and has restrictions imposed on his liberty in aid of
the prosecution, the State’s relationship with the defendant has
become solidly adversarial. And that is just as true when the
proceeding comes before the indictment (in the case of the initial
arraignment on a formal complaint) as when it comes after it (at an
arraignment on an indictment).[ Footnote 13 ] See Coleman v. Alabama , 399 U. S. 1 , 8 (1970) (plurality
opinion) (right to counsel applies at preindictment preliminary
hearing at which the “sole purposes … are to determine whether
there is sufficient evidence against the accused to warrant
presenting his case to the grand jury, and, if so, to fix bail if
the offense is bailable”); cf. Owen v. State , 596
So. 2d 985, 989, n. 7 (Fla. 1992) (“The term ‘arraign’
simply means to be called before a court officer and charged with a
crime”). B Our
latest look at the significance of the initial appearance was McNeil , 501 U. S. 171 , which is no help to the
County. In McNeil the State had conceded that the right to
counsel attached at the first appearance before a county court
commissioner, who set bail and scheduled a preliminary examination.
See id. , at 173; see also id. , at 175 (“It is
undisputed, and we accept for purposes of the present case, that at
the time petitioner provided the incriminating statements at issue,
his Sixth Amendment right had attached …”). But we did more than
just accept the concession; we went on to reaffirm that “[t]he
Sixth Amendment right to counsel attaches at the first formal
proceeding against an accused,” and observed that “in most States,
at least with respect to serious offenses, free counsel is made
available at that time … .” Id. , at
180–181. That was
17 years ago, the same is true today, and the overwhelming
consensus practice conforms to the rule that the first formal
proceeding is the point of attachment. We are advised without
contradiction that not only the Federal Government, including the
District of Columbia, but 43 States take the first step toward
appointing counsel “before, at, or just after initial appearance.”
App. to Brief for National Association of Criminal Defense Lawyers
as Amicus Curiae 1a; see id. , at 1a–7a (listing
jurisdictions);[ Footnote 14 ]
see also Brief for American Bar Association as Amicus
Curiae 5–8 (describing the ABA’s position for the past 40
years that counsel should be appointed “certainly no later than the
accused’s initial appearance before a judicial officer”). And even
in the remaining 7 States (Alabama, Colorado, Kansas, Oklahoma,
South Carolina, Texas, and Virginia) the practice is not free of
ambiguity. See App. to Brief for National Association of Criminal
Defense Lawyers as Amicus Curiae 5a–7a (suggesting that
the practice in Alabama, Kansas, South Carolina, and Virginia might
actually be consistent with the majority approach); see also
n. 7, supra . In any event, to the extent these States
have been denying appointed counsel on the heels of the first
appearance, they are a distinct minority. C The only
question is whether there may be some arguable justification for
the minority practice. Neither the Court of Appeals in its opinion,
nor the County in its briefing to us, has offered an acceptable
one. 1 The Court
of Appeals thought Brewer and Jackson could be
distinguished on the ground that “neither case addressed the issue
of prosecutorial involvement,” and the cases were thus “neutral on
the point,” 491 F. 3d, at 298. With Brewer and Jackson distinguished, the court then found itself bound
by Circuit precedent that “ ‘an adversary criminal proceeding
has not begun in a case where the prosecution officers are unaware
of either the charges or the arrest.’ ” See 491 F. 3d, at
297 (quoting McGee v. Estelle , 625 F. 3d
1206, 1208 (CA5 1980)). Under this standard of prosecutorial
awareness, attachment depends not on whether a first appearance has
begun adversary judicial proceedings, but on whether the prosecutor
had a hand in starting it. That standard is
wrong. Neither Brewer nor Jackson said a word about the
prosecutor’s involvement as a relevant fact, much less a
controlling one. Those cases left no room for the factual enquiry
the Court of Appeals would require, and with good reason: an
attachment rule that turned on determining the moment of a
prosecutor’s first involvement would be “wholly unworkable and
impossible to administer,” Escobedo v. Illinois , 378 U. S. 478 ,
496 (1964) (White, J., dissenting), guaranteed to bog the courts
down in prying enquiries into the communication between police (who
are routinely present at defendants’ first appearances) and the
State’s attorneys (who are not), see Brief for Petitioner 39–41.
And it would have the practical effect of resting attachment on
such absurd distinctions as the day of the month an arrest is made,
see Brief for Brennan Center of Justice et al. as Amici
Curiae 10 (explaining that “jails may be required to report
their arrestees to county prosecutor offices on particular days”
(citing Tex. Crim. Proc. Code Ann., Art. 2.19)); or “the
sophistication, or lack thereof, of a jurisdiction’s computer
intake system,” Brief for Brennan Center, supra, at 11;
see also id. , at 10–12 (noting that only “[s]ome Texas
counties … have computer systems that provide arrest and detention
information simultaneously to prosecutors, law enforcement
officers, jail personnel, and clerks. Prosecutors in these
jurisdictions use the systems to prescreen cases early in the
process before an initial appearance” (citing D. Carmichael, M.
Gilbert, & M. Voloudakis, Texas A&M U., Public Policy
Research Inst., Evaluating the Impact of Direct Electronic Filing
in Criminal Cases: Closing the Paper Trap 2–3 (2006), online at
http://www.courts.state.tx. us/tfid/pdf/FinalReport7-12-06wackn.pdf
(as visited June 19, 2008, and available in Clerk of Court’s case
file))). It is not that the
Court of Appeals believed that any such regime would be desirable,
but it thought originally that its rule was implied by this Court’s
statement that the right attaches when the government has
“committed itself to prosecute.” Kirby , 406 U. S., at 689.
The Court of Appeals reasoned that because “the decision not to
prosecute is the quintessential function of a prosecutor” under
Texas law, 491 F. 3d, at 297 (internal quotation marks
omitted), the State could not commit itself to prosecution until
the prosecutor signaled that it had. But what counts as a
commitment to prosecute is an issue of federal law unaffected by
allocations of power among state officials under a State’s law, cf. Moran, 475 U. S., at 429, n. 3 (“[T]he type of
circumstances that would give rise to the right would certainly
have a federal definition”), and under the federal standard, an
accusation filed with a judicial officer is sufficiently formal,
and the government’s commitment to prosecute it sufficiently
concrete, when the accusation prompts arraignment and restrictions
on the accused’s liberty to facilitate the prosecution, see Jackson , 475 U. S., at 629, n. 3; Brewer , 430 U.
S., at 399; Kirby, supra , at 689; see also n. 9, supra . From that point on, the defendant is “faced with
the prosecutorial forces of organized society, and immersed in the
intricacies of substantive and procedural criminal law” that define
his capacity and control his actual ability to defend himself
against a formal accusation that he is a criminal. Kirby,
supra, at 689. By that point, it is too late to wonder whether
he is “accused” within the meaning of the Sixth Amendment, and it
makes no practical sense to deny it. See Grano, Rhode
Island v. Innis : A Need to Reconsider the
Constitutional Premises Underlying the Law of Confessions, 17 Am.
Crim. L. Rev. 1, 31 (1979) (“[I]t would defy common sense to
say that a criminal prosecution has not commenced against a
defendant who, perhaps incarcerated and unable to afford judicially
imposed bail, awaits preliminary examination on the authority of a
charging document filed by the prosecutor, less typically by the
police, and approved by a court of law” (internal quotation marks
omitted)). All of this is equally true whether the machinery of
prosecution was turned on by the local police or the state attorney
general. In this case, for example, Rothgery alleges that after the
initial appearance, he was “unable to find any employment for
wages” because “all of the potential employers he contacted knew or
learned of the criminal charge pending against him.” Original
Complaint in No. 1:04–CV–00456–LY (WD Tex., July 15, 2004),
p. 5. One may assume that those potential employers would
still have declined to make job offers if advised that the county
prosecutor had not filed the complaint. 2 The County resists this logic with the
argument that in considering the significance of the initial
appearance, we must ignore prejudice to a defendant’s pretrial
liberty, reasoning that it is the concern, not of the right to
counsel, but of the speedy-trial right and the Fourth Amendment.
See Brief for Respondent 47–51. And it cites Gouveia , 467 U. S. 180 , in support of its
contention. See Brief for Respondent 49; see also Brief for Texas
et al. as Amici Curiae 8–9. We think the County’s
reliance on Gouveia is misplaced, and its argument
mistaken. The defendants in Gouveia were
prison inmates, suspected of murder, who had been placed in an
administrative detention unit and denied counsel up until an
indictment was filed. Although no formal judicial proceedings had
taken place prior to the indictment, see 467 U. S., at 185, the
defendants argued that their administrative detention should be
treated as an accusation for purposes of the right to counsel
because the government was actively investigating the crimes. We
recognized that “because an inmate suspected of a crime is already
in prison, the prosecution may have little incentive promptly to
bring formal charges against him, and that the resulting
preindictment delay may be particularly prejudicial to the inmate,” id., at 192, but we noted that statutes of limitation and
protections of the Fifth Amendment guarded against delay, and that
there was no basis for “depart[ing] from our traditional
interpretation of the Sixth Amendment right to counsel in order to
provide additional protections for [the inmates],” ibid. Gouveia ’s holding that the Sixth
Amendment right to counsel had not attached has no application
here. For one thing, Gouveia does not affect the
conclusion we reaffirmed two years later in Jackson , that
bringing a defendant before a court for initial appearance signals
a sufficient commitment to prosecute and marks the start of
adversary judicial proceedings. (Indeed, Jackson refutes
the County’s argument that Fifth Amendment protections at the early
stage obviate attachment of the Sixth Amendment right at initial
appearance. See supra , at 8–9.) And since we are not asked
to extend the right to counsel to a point earlier than formal
judicial proceedings (as in Gouveia ), but to defer it to
those proceedings in which a prosecutor is involved, Gouveia does not speak to the question before
us. The County
also tries to downplay the significance of the initial appearance
by saying that an attachment rule unqualified by prosecutorial
involvement would lead to the conclusion “that the State has
statutorily committed to prosecute every suspect arrested
by the police,” given that “state law requires [an article 15.17
hearing] for every arrestee.” Brief for Respondent 24 (emphasis in
original). The answer, though, is that the State has done just
that, subject to the option to change its official mind later. The
State may rethink its commitment at any point: it may choose not to
seek indictment in a felony case, say, or the prosecutor may enter nolle prosequi after the case gets to the jury room. But
without a change of position, a defendant subject to accusation
after initial appearance is headed for trial and needs to get a
lawyer working, whether to attempt to avoid that trial or to be
ready with a defense when the trial date
arrives. 3 A third tack on the County’s part, slightly
different from the one taken by the Fifth Circuit, gets it no
further. The County stipulates that “the properly formulated test
is not … merely whether prosecutors have had any involvement in the
case whatsoever, but instead whether the State has objectively
committed itself to prosecute.” Id. , at 31. It then
informs us that “[p]rosecutorial involvement is merely one form of
evidence of such commitment.” Ibid. Other sufficient
evidentiary indications are variously described: first
(expansively) as “the filing of formal charges … by information,
indictment or formal complaint, or the holding of an adversarial
preliminary hearing to determine probable cause to file such
charges,” ibid. (citing Kirby , 406 U. S., at
689); then (restrictively) as a court appearance following “arrest
… on an indictment or information,” Brief for Respondent 32. Either
version, in any event, runs up against Brewer and Jackson : an initial appearance following a charge
signifies a sufficient commitment to prosecute regardless of a
prosecutor’s participation, indictment, information, or what the
County calls a “formal” complaint. So the County is reduced to taking aim at
those cases. Brewer and Jackson , we are told, are
“vague” and thus of “limited, if any, precedential value.” Brief
for Respondent 33, 35; see also id. , at 32, n. 13
(asserting that Brewer and Jackson “neither
provide nor apply an analytical framework for determining
attachment”). And, according to the County, our cases
( Brewer and Jackson aside) actually establish a
“general rule that the right to counsel attaches at the point that
[what the County calls] formal charges are filed,” Brief for
Respondent 19, with exceptions allowed only in the case of “a very
limited set of specific preindictment situations,” id. , at
23. The County suggests that the latter category should be limited
to those appearances at which the aid of counsel is urgent and
“ ‘the dangers to the accused of proceeding without
counsel’ ” are great. Id. , at 28 (quoting Patterson v. Illinois , 487 U. S. 285 , 298
(1988)). Texas’s article 15.17 hearing should not count as one of
those situations, the County says, because it is not of critical
significance, since it “allows no presentation of witness testimony
and provides no opportunity to expose weaknesses in the
government’s evidence, create a basis for later impeachment, or
even engage in basic discovery.” Brief for Respondent
29. We think
the County is wrong both about the clarity of our cases and the
substance that we find clear. Certainly it is true that the Court
in Brewer and Jackson saw no need for lengthy disquisitions on the significance of the initial
appearance, but that was because it found the attachment issue an
easy one. The Court’s conclusions were not vague; Brewer expressed “no doubt” that the right to counsel attached at the
initial appearance, 430 U. S., at 399, and Jackson said
that the opposite result would be “untenable,” 475 U. S., at 629,
n. 3. If, indeed, the County had simply taken the
cases at face value, it would have avoided the mistake of merging
the attachment question (whether formal judicial proceedings have
begun) with the distinct “critical stage” question (whether counsel
must be present at a postattachment proceeding unless the right to
assistance is validly waived). Attachment occurs when the
government has used the judicial machinery to signal a commitment
to prosecute as spelled out in Brewer and Jackson . Once attachment occurs, the accused at
least[ Footnote 15 ] is
entitled to the presence of appointed counsel during any “critical
stage” of the postattachment proceedings; what makes a stage
critical is what shows the need for counsel’s presence.[ Footnote 16 ] Thus, counsel must be
appointed within a reasonable time after attachment to allow for
adequate representation at any critical stage before trial, as well
as at trial itself. The County thus makes an analytical mistake
in its assumption that attachment necessarily requires the
occurrence or imminence of a critical stage. See Brief for
Respondent 28–30. On the contrary, it is irrelevant to attachment
that the presence of counsel at an article 15.17 hearing, say, may
not be critical, just as it is irrelevant that
counsel’s presence may not be critical when a prosecutor walks over
to the trial court to file an information. As we said in Jackson , “[t]he question whether arraignment signals the
initiation of adversary judicial proceedings … is distinct from the
question whether the arraignment itself is a critical stage
requiring the presence of counsel.” 475 U. S., at 630, n. 3.
Texas’s article 15.17 hearing plainly signals attachment, even if
it is not itself a critical stage.[ Footnote 17 ] III Our holding is narrow. We do not
decide whether the 6-month delay in appointment of counsel resulted
in prejudice to Rothgery’s Sixth Amendment rights, and have no
occasion to consider what standards should apply in deciding this.
We merely reaffirm what we have held before and what an
overwhelming majority of American jurisdictions understand in
practice: a criminal defendant’s initial appearance before a
judicial officer, where he learns the charge against him and his
liberty is subject to restriction, marks the start of adversary
judicial proceedings that trigger attachment of the Sixth Amendment
right to counsel. Because the Fifth Circuit came to a different
conclusion on this threshold issue, its judgment is vacated, and
the case is remanded for further proceedings consistent with this
opinion. It is so
ordered. Footnote
1 “[F]elony charges … had been dismissed after
Rothgery completed a diversionary program, and both sides agree
that [he] did not have a felony conviction.” 491 F. 3d 293,
294 (CA5 2007) (case below). Footnote
2 A separate article of the Texas Code of
Criminal Procedure requires prompt presentment in the case of
arrests under warrant as well. See Art. 15.17(a) (West Supp. 2007).
Whether the arrest is under warrant or warrantless, article 15.17
details the procedures a magistrate judge must follow upon
presentment. See Art. 14.06(a) (in cases of warrantless arrest,
“[t]he magistrate shall immediately perform the duties described in
Article 15.17 of this
Code”). Footnote
3 See Gerstein v. Pugh , 420 U. S. 103 ,
113–114 (1975) (“[A] policeman’s on-the-scene assessment of
probable cause provides legal justification for arresting a person
suspected of crime, and for a brief period of detention to take the
administrative steps incident to arrest[,] … . [but] the
Fourth Amendment requires a judicial determination of probable
cause as a prerequisite to extended restraint of liberty following
arrest”). Footnote
4 Because respondent Gillespie County obtained
summary judgment in the current case, we accept as true that
Rothgery made multiple
requests. Footnote
5 Rothgery also requested counsel at the
article 15.17 hearing itself, but the magistrate judge informed him
that the appointment of counsel would delay setting bail (and hence
his release from jail). Given the choice of proceeding without
counsel or remaining in custody, Rothgery waived the right to have
appointed counsel present at the hearing. See 491 F. 3d, at
295, n. 2. Footnote
6 Rothgery does not challenge the County’s
written policy for appointment of counsel, but argues that the
County was not following that policy in practice. See 413
F. Supp. 2d 806, 809–810 (WD Tex.
2006). Footnote
7 Such a policy, if proven, arguably would also
be in violation of Texas state law, which appears to require
appointment of counsel for indigent defendants released from
custody, at the latest, when the “first court appearance” is made.
See Tex. Crim. Proc. Code Ann., Art. 1.051(j). See also Brief for
Texas Association of Counties et al. as Amici Curiae 13 (asserting that Rothgery “was statutorily entitled to the
appointment of counsel within three days after having requested
it”). Footnote
8 The Sixth Amendment provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right … to have
the Assistance of Counsel for his
defence.” Footnote
9 The Court of Appeals did not resolve whether
the arresting officer’s formal accusation would count as a “formal
complaint” under Texas state law. See 491 F. 3d, at 298–300
(noting the confusion in the Texas state courts). But it rightly
acknowledged (albeit in considering the separate question whether
the complaint was a “formal charge”) that the constitutional
significance of judicial proceedings cannot be allowed to founder
on the vagaries of state criminal law, lest the attachment rule be
rendered utterly “vague and unpredictable.” Virginia v. Moore , 553 U. S. ___, ___ (2008) (slip op., at 10). See
491 F. 3d, at 300 (“[W]e are reluctant to rely on the
formalistic question of whether the affidavit here would be
considered a ‘complaint’ or its functional equivalent under Texas
case law and Article 15.04 of the Texas Code of Criminal
Procedures—a question to which the answer is itself uncertain.
Instead, we must look to the specific circumstances of this case
and the nature of the affidavit filed at Rothgery’s appearance
before the magistrate” (footnote omitted)). What counts is that the
complaint filed with the magistrate judge accused Rothgery of
committing a particular crime and prompted the judicial officer to
take legal action in response (here, to set the terms of bail and
order the defendant locked
up). Footnote
10 The dissent says that “ Brewer ’s
attachment holding is indisputably no longer good law” because “we
have subsequently held that the Sixth Amendment right to counsel is
‘ “offense specific,” ’ ” post , at 13
(opinion of Thomas, J.) (quoting Texas v. Cobb , 532 U. S. 162 ,
164 (2001)), i.e. , that it does not “exten[d] to crimes
that are ‘factually related’ to those that have actually been
charged,” Cobb , supra , at 167. It is true that Brewer appears to have assumed that attachment of the
right with respect to the abduction charge should prompt attachment
for the murder charge as well. But the accuracy of the dissent’s
assertion ends there, for nothing in Cobb ’s conclusion
that the right is offense specific casts doubt on Brewer ’s
separate, emphatic holding that the initial appearance marks the
point at which the right attaches. Nor does Cobb reflect,
as the dissent suggests, see post , at 14, a more general
disapproval of our opinion in Brewer . While Brewer failed even to acknowledge the issue of offense
specificity, it spoke clearly and forcefully about attachment. Cobb merely declined to follow Brewer ’s
unmentioned assumption, and thus it lends no support to the
dissent’s claim that we should ignore what Brewer explicitly said. Footnote
11 The State continued to press this contention
at oral argument. See Tr. of Oral Arg. in Michigan v. Jackson , O. T. 1985, No. 84–1531 etc., p. 4 (“[T]he
Michigan Supreme Court held that if a defendant, while at his
initial appearance before a magistrate who has no jurisdiction to
accept a final plea in the case, whose only job is ministerial, in
other words to advise a defendant of the charge against him, set
bond if bond is appropriate, and to advise him of his right to
counsel and to get the administrative process going if he’s
indigent, the Michigan Supreme Court said if the defendant asked
for appointed counsel at that stage, the police are forevermore
precluded from initiating interrogation of that defendant”); id. , at 8 (“First of all, as a practical matter, at
least in our courts, the police are rarely present for arraignment,
for this type of an arraignment, for an initial appearance, I guess
we should use the terminology… . The prosecutor is not there
for initial appearance. We have people brought through a tunnel. A
court officer picks them up. They take them down and the judge goes
through this procedure… . There is typically nobody from our
side, if you will, there to see what’s going
on”). Footnote
12 The preliminary examination is a
preindictment stage at which the defendant is allowed to test the
prosecution’s evidence against him, and to try to dissuade the
prosecutor from seeking an indictment. See Coleman v. Alabama , 399 U. S. 1 (1970). In Texas, the
defendant is notified of his right to a preliminary hearing, which
in Texas is called an “examining trial,” at the article 15.17
hearing. See Tex. Crim. Proc. Code Ann., Art. 15.17(a). The
examining trial in Texas is optional only, and the defendant must
affirmatively request it. See Reply Brief for Petitioner
25. Footnote
13 The County, in its brief to this Court,
suggests that although Brewer and Jackson spoke
of attachment at the initial appearance, the cases might actually
have turned on some unmentioned fact. As to Brewer , the
County speculates that an information might have been filed before
the defendant’s initial appearance. See Brief for Respondent 34–36.
But as Rothgery points out, the initial appearance in Brewer was made in municipal court, and a felony
information could not have been filed there. See Reply Brief for
Petitioner 11. As to Jackson , the County suggests that the
Court might have viewed Michigan’s initial arraignment as a
significant proceeding only because the defendant could make a
statement at that hearing, and because respondent Bladel did in
fact purport to enter a plea of not guilty. See Brief for
Respondent 36–37. But this attempt to explain Jackson as a
narrow holding is impossible to square with Jackson ’s
sweeping rejection of the State’s claims. It is further undermined
by the fact that the magistrate judge in Bladel’s case, like the
one in Texas’s article 15.17 hearing, had no jurisdiction to accept
a plea of guilty to a felony charge. See Reply Brief for Petitioner
11–12. Footnote
14 The 43 States are these: (1) Alaska: see
Alaska Stat. §18.85.100 (2006); Alaska Rule Crim. Proc. 5
(Lexis 2006–2007); (2) Arizona: see Ariz. Rules Crim.
Proc. 4.2, 6.1 (West Supp. 2007), (West 1998); (3) Arkansas:
see Ark. Rule Crim. Proc. 8.2 (2006); Bradford v. State , 325 Ark. 278, 927 S. W. 2d 329 (1996); (4)
California: see Cal. Penal Code §§858, 859 (West Supp. 2008); In re Johnson , 62 Cal. 2d 325, 329–330, 398
P. 2d 420, 422–423 (1965); (5) Connecticut: see Conn. Gen.
Stat. §54–1b (2005); Conn. Super. Ct. Crim. Rules §§37–1, 37–3,
37–6 (West 2008); State v. Pierre , 277 Conn. 42,
95–96, 890 A. 2d 474, 507 (2006); (6) Delaware: see Del. Code
Ann., Tit. 29, §4604 (2003); Del. Super. Ct. Crim. Rules 5, 44
(2008); Deputy v. State , 500 A. 2d 581 (Del.
1985); (7) Florida: see Fla. Rule Crim. Proc. 3.111 (West
2007); (8) Georgia: see Ga. Code Ann. §§17–4–26 (2004), 17–12–23
(Supp. 2007); O’Kelley v. State , 278 Ga. 564, 604
S. E. 2d 509 (2004); (9) Hawaii: see Haw. Rev. Stat. §§802–1,
803–9 (1993); (10) Idaho: see Idaho Crim. Rules 5, 44 (Lexis 2007);
Idaho Code §19–852 (Lexis 2004); (11) Illinois: see Ill. Comp.
Stat., ch. 725, §5/109–1 (2006); (12) Indiana: see Ind. Code
§§35–33–7–5, 35–33–7–6 (West 2004); (13) Iowa: see Iowa Rules Crim.
Proc. §§2.2, 2.28 (West 2008); (14) Kentucky: see Ky. Rule Crim.
Proc. §3.05 (Lexis 2008); (15) Louisiana: see La. Code Crim. Proc.
Ann., Art 230.1 (West Supp. 2008); (16) Maine: see Me. Rule Crim.
Proc. 5C (West 2007); (17) Maryland: see Md. Ann. Code, Art. 27A,
§4 (Lexis Supp. 2007); Md. Rule 4–214 (Lexis 2008); McCarter v. State , 363 Md. 705, 770 A. 2d
195 (2001); (18) Massachusetts: see Mass. Rule Crim. Proc. 7
(West 2006); (19) Michigan: see Mich. Rules Crim. Proc 6.005 (West
2008); (20) Minnesota: see Minn. Rules Crim. Proc. 5.01, 5.02
(2006); (21) Mississippi: see Jimpson v. State ,
532 So. 2d 985 (Miss. 1988); (22) Missouri: see Mo. Rev. Stat.
§600.048 (2000); (23) Montana: see Mont. Code Ann. §46–8–101
(2007); (24) Nebraska: see Neb. Rev. Stat. §29–3902 (1995); (25)
Nevada: see Nev. Rev. Stat. §178.397 (2007); (26) New Hampshire:
see N. H. Rev. Stat. Ann. §604–A:3 (2001); (27) New Jersey:
see N. J. Rule Crim. Proc. 3:4–2 (West 2008); State v. Tucker , 137 N. J. 259, 645
A. 2d 111 (1994); (28) New Mexico: see N. M. Stat. Ann.
§31–16–3 (2000); (29) New York: see N. Y. Crim. Proc. Law Ann.
§180.10 (West 2007); (30) North Carolina: see N. C. Gen. Stat.
Ann. §7A–451 (Lexis 2007); (31) North Dakota: see N. D. Rules
Crim. Proc. 5, 44 (Lexis 2008–2009); (32) Ohio: see Ohio Rules
Crim. Proc. 5, 44 (Lexis 2006); (33) Oregon: see Ore. Rev.
Stat. §§135.010, 135.040, 135.050 (2007); (34) Pennsylvania: see
Pa. Rules Crim. Proc. 122, 519 (West 2008); (35) Rhode Island: see
R. I. Dist. Ct. Rules Crim. Proc. 5, 44 (2007); (36)
South Dakota: see S. D. Rule Crim. Proc. §23A–40–6 (2007);
(37) Tennessee: see Tenn. Rule Crim. Proc. 44 (2007); (38) Utah:
see Utah Code Ann. §77–32–302 (Lexis Supp. 2007); (39) Vermont: see
Vt. Stat. Ann., Tit. 13, §5234 (1998); Vt. Rules Crim.
Proc. 5, 44 (2003); (40) Washington: see Wash. Super. Ct.
Crim. Rule 3.1 (West 2008); (41) West Virginia: see W. Va.
Code Ann. §50–4–3 (Lexis 2000); State v. Barrow ,
178 W. Va. 406, 359 S. E. 2d 844 (1987); (42) Wisconsin:
see Wis. Stat. §967.06 (2003–2004); (43) Wyoming: see Wyo. Stat.
Ann. §7–6–105 (2007); Wyo. Rules Crim. Proc. 5, 44
(2007). Footnote
15 We do not here purport to set out the scope
of an individual’s postattachment right to the presence of counsel.
It is enough for present purposes to highlight that the enquiry
into that right is a different one from the attachment
analysis. Footnote
16 The cases have defined critical stages as
proceedings between an individual and agents of the State (whether
“formal or informal, in court or out,” see United States v. Wade , 388 U. S. 218 , 226
(1967)) that amount to “trial-like confrontations,” at which
counsel would help the accused “in coping with legal problems or …
meeting his adversary,” United States v. Ash , 413 U. S. 300 ,
312–313 (1973); see also Massiah v. United
States , 377 U.
S. 201 (1964). Footnote
17 The dissent likewise anticipates an issue
distinct from attachment when it claims Rothgery has suffered no
harm the Sixth Amendment recognizes. Post , at 18. Whether
the right has been violated and whether Rothgery has suffered
cognizable harm are separate questions from when the right
attaches, the sole question before
us. 554 U. S. ____ (2008) 554 U. S. ____ (2008) 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-440 WALTER A. ROTHGERY, PETITIONER v. GILLESPIE COUNTY, TEXAS

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[June 23, 2008]

															   Chief Justice Roberts, with whom
Justice Scalia joins, concurring.

															   Justice Thomas’s analysis of the
present issue is compelling, but I believe the result here is
controlled by Brewer v. Williams , 430 U. S. 387 (1977),
and Michigan v. Jackson , 475 U. S. 625 (1986). A
sufficient case has not been made for revisiting those precedents,
and accordingly I join the Court’s opinion.

															   I also join Justice Alito’s concurrence, which
correctly distinguishes between the time the right to counsel
attaches and the circumstances under which counsel must be
provided. ALITO, J., CONCURRING ROTHGERY V. GILLESPIE COUNTY 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-440 WALTER A. ROTHGERY, PETITIONER v. GILLESPIE COUNTY, TEXAS

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[June 23, 2008]

															   Justice Alito, with whom The
Chief Justice and Justice Scalia join, concurring.

															   I join the Court’s opinion
because I do not understand it to hold that a defendant is entitled
to the assistance of appointed counsel as soon as his Sixth
Amendment right attaches. As I interpret our precedents, the term
“attachment” signifies nothing more than the beginning of the
defendant’s prosecution. It does not mark the beginning of a
substantive entitlement to the assistance of counsel. I write
separately to elaborate on my understanding of the term
“attachment” and its relationship to the Amendment’s substantive
guarantee of “the Assistance of Counsel for [the] defence.”

															   The Sixth Amendment provides in pertinent part
that “[i]n all criminal prosecutions, the accused shall enjoy the
right … to have the Assistance of Counsel for his defence.” The
Amendment thus defines the scope of the right to counsel in three
ways: It provides who may assert the right (“the
accused”); when the right may be asserted (“[i]n all
criminal prosecutions”); and what the right guarantees
(“the right … to have the Assistance of Counsel for his
defence”).

															   It is in the context of interpreting the
Amendment’s answer to the second of these questions—when the right
may be asserted—that we have spoken of the right “attaching.” In Kirby v. Illinois , 406 U. S. 682 , 688
(1972), a plurality of the Court explained that “a person’s Sixth
and Fourteenth Amendment right to counsel attaches only at or after
the time that adversary judicial proceedings have been initiated
against him.” A majority of the Court elaborated on that
explanation in Moore v. Illinois , 434 U. S. 220 (1977):

															   “In Kirby v. Illinois , the plurality opinion made clear that the right
to counsel announced in Wade and Gilbert attaches
only to corporeal identifications conducted at or after the
initiation of adversary judicial criminal proceedings—whether by
way of formal charge, preliminary hearing, indictment, information,
or arraignment. This is so because the initiation of such
proceedings marks the commencement of the ‘criminal prosecutions’
to which alone the explicit guarantees of the Sixth Amendment are
applicable. Thus, in Kirby the plurality held that the
prosecution’s evidence of a robbery victim’s one-on-one
stationhouse identification of an uncounseled suspect shortly after
the suspect’s arrest was admissible because adversary judicial
criminal proceedings had not yet been initiated.” Id., at
226–227 (internal quotation marks and citations omitted).

															When we wrote in Kirby and Moore that the Sixth Amendment right had “attached,” we evidently meant
nothing more than that a “criminal prosecutio[n]” had begun. Our
cases have generally used the term in that narrow fashion. See Texas v. Cobb , 532 U. S. 162 , 167
(2001) (internal quotation marks omitted); McNeil v. Wisconsin , 501 U. S. 171 , 175
(1991); Michigan v. Harvey , 494 U. S. 344 , 353
(1990); Satterwhite v. Texas , 486 U. S. 249 , 254–255
(1988); Michigan v. Jackson , 475 U. S. 625 , 629, and
n. 3 (1986); Moran v. Burbine , 475 U. S. 412 , 428
(1986); United States v. Gouveia , 467 U. S. 180 , 188
(1984); Edwards v. Arizona , 451 U. S. 477 , 480,
n. 7 (1981); Doggett v. United States , 505 U. S. 647 ,
663, n. 2 (1992) (Thomas, J., dissenting); Patterson v. Illinois , 487 U. S. 285 , 303–304
(1988) (Stevens, J., dissenting); United States v. Ash , 413 U.
S. 300 , 322 (1973) (Stewart, J., concurring in judgment). But
see Estelle v. Smith , 451 U. S. 454 , 469
(1981) (“[W]e have held that the right to counsel granted by the
Sixth Amendment means that a person is entitled to the help of a
lawyer at or after the time that adversary judicial proceedings
have been initiated against him …” (internal quotation marks
omitted)); Brewer v. Williams , 430 U. S. 387 , 398
(1977) (“[T]he right to counsel granted by the Sixth and Fourteenth
Amendments means at least that a person is entitled to the help of
a lawyer at or after the time that judicial proceedings have been
initiated against him …”).

															   Because pretrial criminal procedures vary
substantially from jurisdiction to jurisdiction, there is room for
disagreement about when a “prosecution” begins for Sixth Amendment
purposes. As the Court, notes, however, we have previously held
that “arraignments” that were functionally indistinguishable from
the Texas magistration marked the point at which the Sixth
Amendment right to counsel “attached.” See ante, at 6
(discussing Jackson , supra , and Brewer , supra ).

															   It does not follow, however, and I do not
understand the Court to hold, that the county had an obligation to
appoint an attorney to represent petitioner within some specified
period after his magistration. To so hold, the Court would need to
do more than conclude that petitioner’s criminal prosecution had
begun. It would also need to conclude that the assistance of
counsel in the wake of a Texas magistration is part of the
substantive guarantee of the Sixth Amendment. That question lies
beyond our reach, petitioner having never sought our review of it.
See Pet. for Cert. i (inviting us to decide whether the Fifth
Circuit erred in concluding “that adversary judicial proceedings …
had not commenced, and petitioner’s Sixth Amendment rights had not
attached”). To recall the framework laid out earlier, we have been
asked to address only the when question, not the what question. Whereas the temporal scope of the right is
defined by the words “[i]n all criminal prosecutions,” the right’s
substantive guarantee flows from a different textual font: the
words “Assistance of Counsel for his defence.”

															   In interpreting this latter phrase, we have
held that “defence” means defense at trial, not defense in relation
to other objectives that may be important to the accused. See Gouveia , supra , at 190 (“[T]he right to counsel
exists to protect the accused during trial-type confrontations with
the prosecutor …”); Ash , supra , at 309 (“[T]he
core purpose of the counsel guarantee was to assure ‘Assistance’ at
trial …”). We have thus rejected the argument that the Sixth
Amendment entitles the criminal defendant to the assistance of
appointed counsel at a probable cause hearing. See Gerstein v. Pugh , 420 U. S. 103 , 122–123
(1975) (observing that the Fourth Amendment hearing “is addressed
only to pretrial custody” and has an insubstantial effect on the
defendant’s trial rights). More generally, we have rejected the
notion that the right to counsel entitles the defendant to a
“preindictment private investigator.” Gouveia , supra , at 191.

															   At the same time, we have recognized that
certain pretrial events may so prejudice the outcome of the
defendant’s prosecution that, as a practical matter, the defendant
must be represented at those events in order to enjoy genuinely
effective assistance at trial. See, e.g., Ash , supra , at 309–310; United States v. Wade , 388
U. S. 218 , 226 (1967). Thus, we have held that an indigent
defendant is entitled to the assistance of appointed counsel at a
preliminary hearing if “substantial prejudice … inheres in the …
confrontation” and “counsel [may] help avoid that prejudice.” Coleman v. Alabama , 399 U. S. 1 , 9 (1970)
(plurality opinion) (internal quotation marks omitted); see also White v. Maryland , 373 U. S. 59 , 60 (1963) (per curiam) . We have also held that the assistance of
counsel is guaranteed at a pretrial lineup, since “the
confrontation compelled by the State between the accused and the
victim or witnesses to a crime to elicit identification evidence is
peculiarly riddled with innumerable dangers and variable factors
which might seriously, even crucially, derogate from a fair trial.” Wade , supra , at 228. Other “critical stages” of
the prosecution include pretrial interrogation, a pretrial
psychiatric exam, and certain kinds of arraignments. See Harvey , 494 U. S., at 358, n. 4; Estelle , supra , at 470–471; Coleman , supra , at
7–8 (plurality opinion).

															   Weaving together these strands of authority, I
interpret the Sixth Amendment to require the appointment of counsel
only after the defendant’s prosecution has begun, and then only as
necessary to guarantee the defendant effective assistance at trial.
Cf. McNeil , 501 U. S., at 177–178 (“The purpose of the
Sixth Amendment counsel guarantee—and hence the purpose of invoking
it—is to protec[t] the unaided layman at critical confrontations
with his expert adversary, the government, after the
adverse positions of government and defendant have solidified with
respect to a particular alleged crime” (emphasis and alteration in
original; internal quotation marks omitted)). It follows that
defendants in Texas will not necessarily be entitled to the
assistance of counsel within some specified period after their
magistrations. See ante, at 19 (opinion of the Court)
(pointing out the “analytical mistake” of assuming “that attachment
necessarily requires the occurrence or imminence of a critical
stage”). Texas counties need only appoint counsel as far in advance
of trial, and as far in advance of any pretrial “critical stage,”
as necessary to guarantee effective assistance at trial. Cf. ibid. (“[C]ounsel must be appointed within a reasonable
time after attachment to allow for adequate representation at
any critical stage before trial, as well as at trial itself ”
(emphasis added)).

															   The Court expresses no opinion on whether
Gillespie County satisfied that obligation in this case. Petitioner
has asked us to decide only the limited question whether his
magistration marked the beginning of his “criminal prosecutio[n]”
within the meaning of the Sixth Amendment. Because I agree with the
Court’s resolution of that limited question, I join its opinion in
full. THOMAS, J., DISSENTING ROTHGERY V. GILLESPIE COUNTY 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-440 WALTER A. ROTHGERY, PETITIONER v. GILLESPIE COUNTY, TEXAS

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[June 23, 2008]

															   Justice Thomas, dissenting.

															   The Court holds today—for the
first time after plenary consideration of the question—that a
criminal prosecution begins, and that the Sixth Amendment right to
counsel therefore attaches, when an individual who has been placed
under arrest makes an initial appearance before a magistrate for a
probable-cause determination and the setting of bail. Because the
Court’s holding is not supported by the original meaning of the
Sixth Amendment or any reasonable interpretation of our precedents,
I respectfully dissent.

															I

															   The Sixth Amendment provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right
… to have the Assistance of Counsel for his defence.” The text of
the Sixth Amendment thus makes clear that the right to counsel
arises only upon initiation of a “criminal prosecutio[n].” For that
reason, the Court has repeatedly stressed that the Sixth Amendment
right to counsel “does not attach until a prosecution is
commenced.” McNeil v. Wisconsin , 501 U. S. 171 , 175 (1991); see also United States v. Gouveia , 467 U. S. 180 , 188
(1984) (“[T]he literal language of the Amendment … requires the
existence of both a ‘criminal prosecutio[n]’ and an
‘accused’ ”). Echoing this refrain, the Court today reiterates
that “[t]he Sixth Amendment right of the ‘accused’ to assistance of
counsel in ‘all criminal prosecutions’ is limited by its terms.” Ante , at 5 (footnote omitted).

															   Given the Court’s repeated
insistence that the right to counsel is textually limited to
“criminal prosecutions,” one would expect the Court’s jurisprudence
in this area to be grounded in an understanding of what those words
meant when the Sixth Amendment was adopted. Inexplicably, however,
neither today’s decision nor any of the other numerous decisions in
which the Court has construed the right to counsel has attempted to
discern the original meaning of “criminal prosecutio[n].” I think
it appropriate to examine what a “criminal prosecutio[n]” would
have been understood to entail by those who adopted the Sixth
Amendment.

															A

															   There is no better place to begin
than with Blackstone, “whose works constituted the preeminent
authority on English law for the founding generation.” Alden v. Maine , 527 U. S. 706 , 715
(1999). Blackstone devoted more than 100 pages of his Commentaries
on the Laws of England to a discussion of the “regular and ordinary
method of proceeding in the courts of criminal jurisdiction.” 4 W.
Blackstone, Commentaries *289 (hereinafter Blackstone).

															   At the outset of his discussion,
Blackstone organized the various stages of a criminal proceeding
“under twelve general heads, following each other in a progressive
order.” Ibid. The first six relate to pretrial events: “1.
Arrest; 2. Commitment and bail; 3. Prosecution; 4.
Process; 5. Arraignment, and it’s incidents; 6. Plea, and issue.” Ibid. (emphasis added). Thus, the first significant fact
is that Blackstone did not describe the entire criminal process as
a “prosecution,” but rather listed prosecution as the third step in
a list of successive stages. For a more complete understanding of
what Blackstone meant by “prosecution,” however, we must turn to
chapter 23, entitled “Of the Several Modes of Prosecution.” Id ., at *301. There, Blackstone explained that—after
arrest and examination by a justice of the peace to determine
whether a suspect should be discharged, committed to prison, or
admitted to bail, id ., at *296—the “next step towards the
punishment of offenders is their prosecution, or the
manner of their formal accusation ,” id ., at *301
(emphasis added).

															   Blackstone thus provides a definition of
“prosecution”: the manner of an offender’s “formal accusation.” The
modifier “formal” is significant because it distinguishes
“prosecution” from earlier stages of the process involving a
different kind of accusation: the allegation of criminal conduct
necessary to justify arrest and detention.
Blackstone’s discussion of arrest, commitment, and bail makes clear
that a person could not be arrested and detained without a “charge”
or “accusation,” i.e. , an allegation, supported by
probable cause, that the person had committed a crime. See id ., at *289–*300. But the accusation justifying arrest
and detention was clearly preliminary to the “formal accusation”
that Blackstone identified with “prosecution.” See id ., at
*290, *318.

															   By “formal accusation,” Blackstone meant, in
most cases, “indictment, the most usual and effectual means of
prosecution.” Id ., at *302. Blackstone defined an
“indictment” as “a written accusation of one or more persons of a
crime or misdemeanor, preferred to, and presented upon oath by, a
grand jury.” Ibid . (emphasis deleted). If the grand jury
was “satisfied of the truth of the accusation,” it endorsed the
indictment, id ., at *305–*306, which was then “publicly
delivered into court,” id ., at *306, “afterwards to be
tried and determined,” id ., at *303, “before an officer
having power to punish the [charged] offence,” 2 T. Cunningham, A
New and Complete Law Dictionary (2d ed. 1771).

															   In addition to indictment, Blackstone
identified two other “methods of prosecution at the suit of the
king.” 4 Blackstone *312. The first was presentment, which, like an
indictment, was a grand jury’s formal accusation “of an offence,
inquirable in the Court where it [was] presented.” 5 G. Jacob, The
Law-Dictionary 278–279 (1811). The principal difference was that
the accusation arose from “the notice taken by a grand jury of any
offence from their own knowledge or observation” rather than from a
“bill of indictment laid before them.” 4 Blackstone *301. The
second was information, “the only species of proceeding at the suit
of the king, without a previous indictment or presentment by a
grand jury.” Id ., at *308. After an information was filed,
it was “tried,” id. , at *309, in the same way as an
indictment: “The same notice was given, the same process was
issued, the same pleas were allowed, the same trial by jury was
had, the same judgment was given by the same judges, as if the
prosecution had originally been by indictment,” id ., at
*310.

															   From the foregoing, the basic elements of a
criminal “prosecution” emerge with reasonable clarity.
“Prosecution,” as Blackstone used the term, referred to
“instituting a criminal suit,” id ., at *309, by filing a
formal charging document—an indictment, presentment, or
information—upon which the defendant was to be tried in a court
with power to punish the alleged offense. And, significantly,
Blackstone’s usage appears to have accorded with the ordinary
meaning of the term. See 2 N. Webster, An American Dictionary of
the English Language (1828) (defining “prosecution” as “[t]he
institution or commencement and continuance of a criminal suit; the
process of exhibiting formal charges against an offender before a
legal tribunal, and pursuing them to final judgment,” and noting
that “ [p]rosecutions may be by presentment, information or
indictment”).

															B

															   With Blackstone as our guide, it
is significant that the Framers used the words “criminal
prosecutions” in the Sixth Amendment rather than some other
formulation such as “criminal proceedings” or “criminal cases.”
Indeed, elsewhere in the Bill of Rights we find just such an
alternative formulation: In contrast to the Sixth Amendment, the
Fifth Amendment refers to “criminal case[s].” U. S. Const., Amdt. 5
(“No person … shall be compelled in any criminal case to be a
witness against himself”).

															   In Counselman v. Hitchcock , 142 U. S. 547 (1892),
the Court indicated that the difference in phraseology was not
accidental. There the Court held that the Fifth Amendment right not
to be compelled to be a witness against oneself “in any criminal
case” could be invoked by a witness testifying before a grand jury.
The Court rejected the argument that there could be no “criminal
case” prior to indictment, reasoning that a “criminal case” under
the Fifth Amendment is much broader than a “criminal prosecutio[n]”
under the Sixth Amendment. Id ., at 563.

															   The following Term, the Court construed the
phrase “criminal prosecution” in a statutory context, and this time
the Court squarely held that a “prosecution” does not encompass
preindictment stages of the criminal process. In Virginia v. Paul , 148 U. S. 107 (1893),
the Court considered Revised Statute §643, which authorized removal
to federal court of any “ ‘criminal prosecution’ ”
“ ‘commenced in any court of a State’ ” against a federal
officer. Id ., at 115. The respondent, a deputy marshal,
had been arrested by Virginia authorities on a warrant for murder
and was held in county jail awaiting his appearance before a
justice of the peace “with a view to a commitment to await the
action of the grand jury.” Id ., at 118. He filed a
petition for removal of “ ‘said cause’ ” to federal
court. Ibid . The question before the Court was whether a
“ ‘criminal prosecution’ ” had “ ‘commenced’ ”
within the meaning of the statute at the time the respondent filed
his removal petition.

															   The Court held that a criminal prosecution had
not commenced, and that removal was therefore not authorized by the
terms of the statute. The Court noted that under Virginia law
murder could be prosecuted only “by indictment found in the county
court,” and that “a justice of the peace, upon a previous
complaint, [could] do no more than to examine whether there [was]
good cause for believing that the accused [was] guilty, and to
commit him for trial before the court having jurisdiction of the
offence.” Ibid . Accordingly, where “no indictment was
found, or other action taken, in the county court,” there was as
yet no “ ‘criminal prosecution.’ ” Id ., at 119.
The appearance before the justice of the peace did not qualify as a
“prosecution”:

															“Proceedings before a magistrate to commit a person
to jail, or to hold him to bail, in order to secure his appearance
to answer for a crime or offence which the magistrate has no
jurisdiction himself to try, before the court in which he may be
prosecuted and tried, are but preliminary to the prosecution, and
are no more a commencement of the prosecution, than is an arrest by
an officer without a warrant for a felony committed in his
presence.” Ibid .

															C

															   The foregoing historical summary
is strong evidence that the term “criminal prosecutio[n]” in the
Sixth Amendment refers to the commencement of a criminal suit by
filing formal charges in a court with jurisdiction to try and
punish the defendant. And on this understanding of the Sixth
Amendment, it is clear that petitioner’s initial appearance before
the magistrate did not commence a “criminal prosecutio[n].” No
formal charges had been filed. The only document submitted to the
magistrate was the arresting officer’s affidavit of probable cause.
The officer stated that he “ha[d] good reason to believe” that
petitioner was a felon and had been “walking around [an] RV park
with a gun belt on, carrying a pistol, handcuffs, mace spray, extra
bullets and a knife.” App. to Pet. for Cert. 33a. The officer
therefore “charge[d]” that petitioner had “commit[ted] the offense
of unlawful possession of a firearm by a felon—3rd degree felony.” Ibid . The magistrate certified that he had examined the
affidavit and “determined that probable cause existed for the
arrest of the individual accused therein.” Id ., at 34a.
Later that day, petitioner was released on bail, and did not hear
from the State again until he was indicted six months later.

															   The affidavit of probable cause
clearly was not the type of formal accusation Blackstone identified
with the commencement of a criminal “prosecution.” Rather, it was
the preliminary accusation necessary to justify arrest and
detention—stages of the criminal process that Blackstone placed
before prosecution. The affidavit was not a pleading that
instituted a criminal prosecution, such as an indictment,
presentment, or information; and the magistrate to whom it was
presented had no jurisdiction to try and convict petitioner for the
felony offense charged therein. See Teal v. State , 230 S. W. 3d 172, 174 (Tex. Crim. App. 2007)
(“The Texas Constitution requires that, unless waived by the
defendant, the State must obtain a grand jury indictment in a
felony case”); Tex. Crim. Proc. Code Ann., Arts. 4.05, 4.11(a)
(West 2005). That is most assuredly why the magistrate informed
petitioner that charges “ will be filed” in district court.
App. to Pet. for Cert. 35a (emphasis added).

															   The original meaning of the Sixth Amendment,
then, cuts decisively against the Court’s conclusion that
petitioner’s right to counsel attached at his initial appearance
before the magistrate. But we are not writing on a blank slate:
This Court has a substantial body of more recent precedent
construing the Sixth Amendment right to counsel.

															II

															   As the Court notes, our cases
have “pegged commencement” of a criminal prosecution, ante , at 5, to “the initiation of adversary judicial
criminal proceedings—whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment,” Kirby v. Illinois , 406 U. S. 682 , 689
(1972) (plurality opinion). The Court has repeated this formulation
in virtually every right-to-counsel case decided since Kirby . Because Kirby ’s formulation of the
attachment test has been accorded such precedential significance,
it is important to determine precisely what Kirby said:

															   “In a line of constitutional
cases in this Court stemming back to the Court’s landmark opinion
in Powell v. Alabama , 287 U. S. 45 [(1932)], it has been
firmly established that a person’s Sixth and Fourteenth Amendment
right to counsel attaches only at or after the time that adversary
judicial proceedings have been initiated against him. See Powell v. Alabama , supra; Johnson v. Zerbst , 304 U. S. 458 [(1938)]; Hamilton v. Alabama , 368 U.
S. 52 [(1961)]; Gideon v. Wainwright , 372 U. S. 335 [(1963)]; White v. Maryland , 373 U.
S. 59 [(1963) (per curiam) ]; Massiah v. United States , 377 U. S. 201 [(1964)]; United
States v. Wade , 388 U. S. 218 [(1967)]; Gilbert v. California , 388 U. S. 263 [(1967)]; Coleman v. Alabama , 399 U. S. 1 [(1970)].

															   “This is not to say that a defendant in a
criminal case has a constitutional right to counsel only at the
trial itself. The Powell case makes clear that the right
attaches at the time of arraignment, and the Court has recently
held that it exists also at the time of a preliminary hearing. Coleman v. Alabama , supra . But the point
is that, while members of the Court have differed as to existence
of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or
after the initiation of adversary judicial criminal
proceedings—whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.” Id. , at 688–689
(footnote omitted).

															   It is noteworthy that Kirby did not purport to announce anything new; rather, it
simply catalogued what the Court had previously held. And the point
of the plurality’s discussion was that the criminal process
contains stages prior to commencement of a criminal
prosecution. The holding of the case was that the right to counsel
did not apply at a station house lineup that took place
“ before the defendant had been indicted or otherwise
formally charged with any criminal offense.” Id ., at
684. Kirby gave five examples of events
that initiate “adversary judicial criminal proceedings”: formal
charge, preliminary hearing, indictment, information, and
arraignment. None of these supports the result the Court reaches
today. I will apply them seriatim . No indictment or
information had been filed when petitioner appeared before the
magistrate. Nor was there any other formal charge. Although the
plurality in Kirby did not define “formal charge,” there
is no reason to believe it would have included an affidavit of
probable cause in that category. None of the cases on which it
relied stood for that proposition. Indeed, all of them—with the
exception of White v. Maryland , 373 U.
S. 59 (1963) (per curiam) , and Coleman v. Alabama , 399 U. S. 1 (1970)—involved
postindictment proceedings. See Powell v. Alabama , 287 U. S. 45 , 49 (1932) (postindictment
arraignment); Johnson v. Zerbst , 304 U. S. 458 , 460 (1938) (trial); Hamilton v. Alabama , 368 U.
S. 52 , 53, n. 3 (1961) (postindictment arraignment); Gideon v. Wainwright , 372 U. S. 335 , 337 (1963) (trial); Massiah v. United States , 377 U. S. 201 (1964) (postindictment
interrogation); United States v. Wade , 388 U. S. 218 , 219–220 (1967)
(postindictment lineup); Gilbert v. California , 388 U. S. 263 , 269 (1967)
(postindictment lineup).

															   Nor was petitioner’s initial appearance a
preliminary hearing. The comparable proceeding in Texas is called
an “examining trial.” See ante , at 9, n. 12. More
importantly, petitioner’s initial appearance was unlike the
preliminary hearings that were held to constitute “critical stages”
in White and Coleman , because it did not involve
entry of a plea, cf. White , supra , at 60, and was
nonadversarial, cf. Coleman , supra , at 9. There
was no prosecutor present, there were no witnesses to
cross-examine, there was no case to discover, and the result of the
proceeding was not to bind petitioner over to the grand jury or the
trial court.

															   Finally, petitioner’s initial appearance was
not what Kirby described as an “arraignment.” An
arraignment, in its traditional and usual sense, is a
postindictment proceeding at which the defendant enters a plea.
See, e.g. , W. LaFave, J. Israel, & N. King,
Criminal Procedure §1.3(n), p. 19 (4th ed. 2004); 4 Blackstone
*322. Although the word “arraignment” is sometimes used to describe
an initial appearance before a magistrate, see LaFave, supra , §1.3(j), at 16, that is not what Kirby meant when it said that the right to counsel attaches at an
“arraignment.” Rather, it meant the traditional, postindictment
arraignment where the defendant enters a plea. This would be the
most reasonable assumption even if there were nothing else to go
on, since that is the primary meaning of the word, especially when
used unmodified.

															   But there is no need to assume. Kirby purported to describe only what the Court had already held, and
none of the cases Kirby cited involved an initial
appearance. Only two of the cases involved arraignments, and both
were postindictment arraignments at which the defendant entered a
plea. Hamilton , supra , at 53, n. 3; Powell , 287 U. S., at 49. And the considerations that
drove the Court’s analysis in those cases are not present here. See id., at 57 (emphasizing that “from the time of their
arraignment until the beginning of their trial, when consultation,
thoroughgoing investigation and preparation were vitally important,
the defendants did not have the aid of counsel”); Hamilton , supra , at 53–55 (emphasizing that the
defendant entered a plea and was required to raise or waive certain
defenses). Kirby ’s inclusion of “arraignment” in the list
of adversary judicial proceedings that trigger the right to counsel
thus provides no support for the view that the right to counsel
attaches at an initial appearance before a magistrate.

															III

															   It is clear that when Kirby was decided in 1972 there was no precedent in this
Court for the conclusion that a criminal prosecution begins, and
the right to counsel therefore attaches, at an initial appearance
before a magistrate. The Court concludes, however, that two
subsequent decisions— Brewer v. Williams , 430 U. S. 387 (1977),
and Michigan v. Jackson , 475 U. S. 625 (1986)—stand for that proposition. Those decisions, which relied
almost exclusively on Kirby , cannot bear the weight the
Court puts on them.[ Footnote
1 ]

															   In Brewer , the defendant
challenged his conviction for murdering a 10-year-old girl on the
ground that his Sixth Amendment right to counsel had been violated
when detectives elicited incriminating statements from him while
transporting him from Davenport, Iowa, where he had been arrested
on a warrant for abduction and “arraigned before a judge … on the
outstanding arrest warrant,” to Des Moines, where he was to be
tried. 430 U. S., at 390–391. The principal issue was whether the
defendant had waived his right to have counsel present during
police questioning when he voluntarily engaged one of the
detectives in a “wide-ranging conversation.” Id., at 392.
He subsequently agreed to lead the detectives to the girl’s body in
response to the so-called “ ‘Christian burial speech,’ ”
in which one of the detectives told the defendant that “ ‘the
parents of this little girl should be entitled to a Christian
burial for the little girl who was snatched away from them on
Christmas [E]ve and murdered.’ ” Id ., at 392–393. Not
surprisingly, the parties vigorously disputed the waiver issue, and
it sharply divided the Court.

															   In contrast, the question whether the
defendant’s right to counsel had attached was neither raised in the
courts below nor disputed before this Court. Nonetheless, the
Court, after quoting Kirby ’s formulation of the test,
offered its conclusory observations:

															   “There can be no doubt in the
present case that judicial proceedings had been initiated against
Williams before the start of the automobile ride from Davenport to
Des Moines. A warrant had been issued for his arrest, he had been
arraigned on that warrant before a judge in a Davenport courtroom,
and he had been committed by the court to confinement in jail. The
State does not contend otherwise.” 430 U. S., at 399. Brewer ’s cursory
treatment of the attachment issue demonstrates precisely why, when
“an issue [is] not addressed by the parties,” it is “imprudent of
us to address it … with any pretense of settling it for all time.” Metropolitan Stevedore Co. v. Rambo , 521 U. S. 121 , 136
(1997). As an initial matter, the Court’s discussion of the facts
reveals little about what happened at the proceeding. There is no
indication, for example, whether it was adversarial or whether the
defendant was required to enter a plea or raise or waive any
defenses—facts that earlier cases such as Hamilton , White , and Coleman had found significant.

															   Even assuming, however, that the arraignment
in Brewer was functionally identical to the initial
appearance here, Brewer offered no reasoning for its
conclusion that the right to counsel attached at such a proceeding.
One is left with the distinct impression that the Court simply saw
the word “arraignment” in Kirby ’s attachment test and
concluded that the right must have attached because the defendant
had been “arraigned.” There is no indication that Brewer considered the difference between an arraignment on a warrant and
an arraignment at which the defendant pleads to the indictment.

															   The Court finds it significant that Brewer expressed “ ‘no doubt’ ” that the right
had attached. Ante , at 19 (quoting 430 U. S., at 399).
There was no need for a “lengthy disquisitio[n],” the Court says,
because Brewer purportedly “found the attachment issue an
easy one.” Ante , at 18–19. What the Court neglects to
mention is that Brewer ’s attachment holding is
indisputably no longer good law. That is because we have
subsequently held that the Sixth Amendment right to counsel is
“offense specific,” meaning that it attaches only to those offenses
for which the defendant has been formally charged, and not to
“other offenses ‘closely related factually’ to the charged
offense.” Texas v. Cobb , 532 U. S. 162 , 164
(2001). Because the defendant in Brewer had been arraigned
only on the abduction warrant, there is no doubt that, under Cobb , his right to counsel had not yet attached with
respect to the murder charges that were subsequently brought. See
532 U. S., at 184 (Breyer, J., dissenting) (noting that under the
majority’s rule, “[the defendant’s] murder conviction should have
remained undisturbed”). But the Court in Cobb did not
consider itself bound by Brewer ’s implicit holding on the
attachment question. See 532 U. S., at 169 (“Constitutional rights
are not defined by inferences from opinions which did not address
the question at issue”). And here, as in Cobb , Brewer did not address the fact that the arraignment on
the warrant was not the same type of arraignment at which the right
to counsel had previously been held to attach, and the parties did
not argue the question. Brewer is thus entitled to no more
precedential weight here than it was in Cobb .

															   Nor does Jackson control. In Jackson , as in Brewer , the attachment issue was
secondary. The question presented was “not whether respondents had
a right to counsel at their postarraignment, custodial
interrogations,” 475 U. S., at 629, but “whether respondents
validly waived their right to counsel,” id ., at 630. And,
as in Brewer , the Court’s waiver holding was vigorously
disputed. See 475 U. S., at 637–642 (Rehnquist, J., dissenting);
see also Cobb, supra , at 174–177 (Kennedy, J., concurring)
(questioning Jackson ’s vitality). Unlike in Brewer , however, the attachment question was at least
contested in Jackson —but barely. With respect to
respondent Jackson, the State conceded the issue. Jackson , supra , at 629, n. 3. And with respect to respondent
Bladel, the State had conceded the issue below, see People v. Bladel , 421 Mich. 39, 77, 365 N. W. 2d 56, 74
(1984) (Boyle, J., dissenting), and raised it for the first time
before this Court, devoting only three pages of its brief to the
question, see Brief for Petitioner in Michigan v. Bladel , O. T. 1985, No. 84–1539, pp. 24–26.

															   The Court disposed of the issue in a footnote.
See Jackson , supra , at 629–630, n. 3. As in Brewer , the Court did not describe the nature of the
proceeding. It stated only that the respondents were “arraigned.”
475 U. S., at 627–628. The Court phrased the question presented in
terms of “arraignment,” id ., at 626 (“The question
presented by these two cases is whether the same rule applies to a
defendant who has been formally charged with a crime and who has
requested appointment of counsel at his arraignment”), and repeated
the words “arraignment” or “postarraignment” no fewer than 35 times
in the course of its opinion.

															   There is no way to know from the Court’s
opinion in Jackson whether the arraignment at issue there
was the same type of arraignment at which the right to counsel had
been held to attach in Powell and Hamilton . Only
upon examination of the parties’ briefs does it become clear that
the proceeding was in fact an initial appearance. But Jackson did not even acknowledge, much less “flatly
rejec[t] the distinction between initial arraignment and
arraignment on the indictment.” Ante , at 9. Instead, it
offered one sentence of analysis—“In view of the clear language in
our decisions about the significance of arraignment, the State’s
argument is untenable”—followed by a string citation to four cases,
each of which quoted Kirby . 475 U. S., at 629–630,
n. 3. For emphasis, the Court italicized the words “or
arraignment” in Kirby ’s attachment test. 475 U. S., at
629, n. 3 (internal quotation marks omitted).

															   The only rule that can be derived from the
face of the opinion in Jackson is that if a proceeding is
called an “arraignment,” the right to counsel attaches.[ Footnote 2 ] That rule would not govern
this case because petitioner’s initial appearance was not called an
“arraignment” (the parties refer to it as a “magistration”). And
that would, in any case, be a silly rule. The Sixth Amendment
consequences of a proceeding should turn on the substance of what
happens there, not on what the State chooses to call it. But the
Court in Jackson did not focus on the substantive
distinction between an initial arraignment and an arraignment on
the indictment. Instead, the Court simply cited Kirby and
left it at that. In these circumstances, I would recognize Jackson for what it was—a cursory treatment of an issue
that was not the primary focus of the Court’s opinion. Surely Jackson ’s footnote must yield to our reasoned
precedents.

															   And our reasoned precedents provide no support
for the conclusion that the right to counsel attaches at an initial
appearance before a magistrate. Kirby explained why the
right attaches “after the initiation of adversary judicial criminal
proceedings”:

															   “The initiation of judicial
criminal proceedings is far from a mere formalism. It is the
starting point of our whole system of adversary criminal justice.
For it is only then that the government has committed itself to
prosecute, and only then that the adverse positions of government
and defendant have solidified. It is then that a defendant finds
himself faced with the prosecutorial forces of organized society,
and immersed in the intricacies of substantive and procedural
criminal law. It is this point, therefore, that marks the
commencement of the ‘criminal prosecutions’ to which alone the
explicit guarantees of the Sixth Amendment are applicable.” 406 U.
S., at 689–690 (plurality opinion).

															   None of these defining
characteristics of a “criminal prosecution” applies to petitioner’s
initial appearance before the magistrate. The initial appearance
was not an “adversary” proceeding, and petitioner was not “faced
with the prosecutorial forces of organized society.” Instead, he
stood in front of a “little glass window,” filled out various
forms, and was read his Miranda rights. Brief for
Respondent 5. The State had not committed itself to prosecute—only
a prosecutor may file felony charges in Texas, see Tex. Code Ann.,
Crim. Proc. Arts. 2.01, 2.02 (West 2005), and there is no evidence
that any prosecutor was even aware of petitioner’s arrest or
appearance. The adverse positions of government and defendant had
not yet solidified—the State’s prosecutorial officers had not yet
decided whether to press charges and, if so, which charges to
press. And petitioner was not immersed in the intricacies of
substantive and procedural criminal law—shortly after the
proceeding he was free on bail, and no further proceedings occurred
until six months later when he was indicted.

															   Moreover, the Court’s holding that the right
to counsel attaches at an initial appearance is untethered from any
interest that we have heretofore associated with the right to
counsel. The Court has repeatedly emphasized that “[t]he purpose of
the constitutional guaranty of a right to counsel is to protect an
accused from conviction resulting from his own ignorance of his
legal and constitutional rights.” Johnson , 304 U. S., at
465. The “core purpose” of the right, the Court has said, is to
“assure ‘Assistance’ at trial, when the accused [is] confronted
with both the intricacies of the law and the advocacy of the public
prosecutor.” United States v. Ash , 413 U. S. 300 , 309
(1973). The Court has extended the right to counsel to pretrial
events only when the absence of counsel would derogate from the
defendant’s right to a fair trial. See, e.g. , Wade , 388 U. S., at 227.

															   Neither petitioner nor the Court identifies
any way in which petitioner’s ability to receive a fair trial was
undermined by the absence of counsel during the period between his
initial appearance and his indictment. Nothing during that period
exposed petitioner to the risk that he would be convicted as the
result of ignorance of his rights. Instead, the gravamen of
petitioner’s complaint is that if counsel had been appointed
earlier, he would have been able to stave off indictment by
convincing the prosecutor that petitioner was not guilty of the
crime alleged. But the Sixth Amendment protects against the risk of
erroneous conviction , not the risk of unwarranted prosecution . See Gouveia , 467 U. S., at 191
(rejecting the notion that the “purpose of the right to counsel is
to provide a defendant with a preindictment private
investigator”).

															   Petitioner argues that the right to counsel is
implicated here because restrictions were imposed on his liberty
when he was required to post bail. But we have never suggested that
the accused’s right to the assistance of counsel “for his defence”
entails a right to use counsel as a sword to contest pretrial
detention. To the contrary, we have flatly rejected that notion,
reasoning that a defendant’s liberty interests are protected by
other constitutional guarantees. See id. , at 190 (“While
the right to counsel exists to protect the accused during
trial-type confrontations with the prosecutor, the speedy trial
right exists primarily to protect an individual’s liberty
interest,” including the interest in reducing the
“ ‘impairment of liberty imposed on an accused while released
on bail’ ”).

															IV

															   In sum, neither the original
meaning of the Sixth Amendment right to counsel nor our precedents
interpreting the scope of that right supports the Court’s holding
that the right attaches at an initial appearance before a
magistrate. Because I would affirm the judgment below,
   I respectfully dissent. Footnote 1 The Court also relies on McNeil v. Wisconsin , 501 U. S. 171 (1991), to support its
assertion that the right to counsel attaches upon an initial
appearance before a magistrate. Ante , at 10–11. But in McNeil , the Court expressed no view whatsoever on the
attachment issue. Rather, it noted that the issue was “undisputed,”
and “accept[ed] for purposes of the present case, that … [the
defendant’s] Sixth Amendment right had attached.” 501 U. S., at
175. We do not ordinarily give weight to assumptions made in prior
cases about matters that were not in dispute. Footnote 2 The Court asserts that Jackson ’s
“conclusion was driven by the same considerations the Court had
endorsed in Brewer ,” namely, that “by the time a defendant
is brought before a judicial officer, is informed of a formally
lodged accusation, and has restrictions imposed on his liberty in
aid of the prosecution, the State’s relationship with the defendant
has become solidly adversarial.” Ante , at 9. But Jackson said nothing of the sort.

															   Moreover, even looking behind the opinion, Jackson does not support the result the Court reaches
today. Respondent Bladel entered a “not guilty” plea at his
arraignment, see Brief for Petitioner in Michigan v. Bladel , O. T. 1985, No. 84–1539, p. 4, and both Hamilton v. Alabama , 368 U.
S. 52 (1961), and White v. Maryland , 373 U.
S. 59 (1963) (per curiam) , had already held that a
defendant has a right to counsel when he enters a plea. The Court
suggests that this fact is irrelevant because the magistrate in
Bladel’s case “had no jurisdiction to accept a plea of guilty to a
felony charge.” Ante , at 10, n. 13. But that
distinction does not appear in either Hamilton or White . See Hamilton , supra , at 55 (“Only
the presence of counsel could have enabled this accused to know all
the defenses available to him and to plead intelligently”); White , supra , at 60 (“[P]etitioner entered a plea
before the magistrate and that plea was taken at a time when he had
no counsel”). Thus, the most that Jackson can possibly be
made to stand for is that the right to counsel attaches at an
initial appearance where the defendant enters a plea. And that rule
would not govern this case because petitioner did not enter a plea
at his initial appearance.