Right to an attorney: sixth amendment and critical stages


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

The right to an attorney in the Sixth Amendment should not be confused with the right to an attorney provided in the Fifth Amendment. The Fifth Amendment deals with the Miranda Warnings, which are popularized in the phrases recited by police officers when arresting a suspect: “You have the right to remain silent … Anything you say can and will be used against you in a court of law … You have the right to a lawyer”. Fifth Amendment law applies to police custody interrogations, while Sixth Amendment law deals with proceedings after the state has filed formal charges.

The right to an attorney under the Sixth Amendment is very broad and includes issues such as the efficacy of the attorney and the representation of oneself. This article focuses primarily on the differences between 5th and 6th amendment rights, as well as the critical stages during which the right to an attorney can be invoked.

Differences between Fifth Amendment and Sixth Amendment rights

As mentioned above, the Constitution establishes the right to an attorney in both the Fifth Amendment and the Sixth Amendment. There are significant differences between the two.

Fifth Amendment Rights

Under the Fifth Amendment, the right to an attorney applies only during a custody questioning For the police. An interrogation in custody means that the person is detained by the police for questioning purposes. An example of interrogation in custody is when a person is detained at the police station to investigate a crime.

The purpose of Fifth Amendment law is to allow the suspect to consult with an attorney even if no formal charges have been filed and no arrests have yet been made. (Miranda v. Arizona, 384 US 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]).

During an interrogation in custody, the police should recite the Miranda Warnings mentioned above to inform the suspect that they are in fact in custody for questioning. Once Miranda’s warnings are read or recited to the suspect, the person may decline to speak indicating that they wish to have an attorney present. This is called “invoking the Fifth Amendment right to an attorney.”

Once the person invokes the Fifth Amendment right to an attorney, the police cannot question them further until an attorney is present.

Sixth Amendment Rights

On the other hand, the Sixth Amendment “right to a lawyer” applies. after the suspect has already been registered and formal charges have already been issued against the accused.

The right to legal aid is “attached” when a formal accusatory criminal process has been initiated (initiated), although it can only be invoked at certain points in the process called “critical stages”. (Maine c. Moulton, 474 US 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 [1985]).

The purpose of the Sixth Amendment right to counsel is to ensure that the defendant is adequately protected by an attorney in a adversary setting. The key word to remember is “adversarial,” which means that the defendant is being confronted by the opposing party or a state official, such as a prosecutor or judge.

Another important difference between the two rights is that Fifth Amendment law is not crime specific, while Sixth Amendment law is crime specific. This means that, during a custody interrogation, if the suspect invokes the Miranda right, the police will not be able to question him at all, not even about different crimes. Under Sixth Amendment law, state officials cannot question you about the crime you are charged with, but they can question you about other crimes.

Critical stages: initiation of criminal proceedings

The Supreme Court case United States v. Gentleman, 7 F.3d 1566 [11th Cir. 1993] establishes a basic definition of a critical stage: “A critical stage of prosecution includes all cases in which the advice of a lawyer is necessary to guarantee the right of the accused to a fair trial or in which the absence of a lawyer may impede the preparation or presentation of the defense “(United States v. Gentleman, 7 F.3d 1566 [11th Cir. 1993]).

The first contradictory scenario that a defendant usually encounters is the initiation (beginning) of a formal criminal process. The case Brewer v. Williams, 430 US 387 mentions the following situations as instances that initiate criminal proceedings.

  • Appearance before a judge for the purpose of dictating formal charges
  • Preliminary hearings
  • Accusations (this is where formal charges are brought against the defendant in front of a grand jury)
  • Information (this is like an indictment, only it is written and presented by a public official rather than a grand jury)
  • Arrangements

These stages of the trial are considered “critical stages”, and the defendant definitely has the right to an attorney during these stages. Furthermore, it is at this point that the right to a lawyer is said to be “seized”, which means that the defendant can now claim his right to a lawyer. Note that the initial court appearance in which the judge simply informs the defendant of their charges and rights is not a critical stage.

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

“Non-critical stages”: phases of the trial during which the accused does not have the right to a lawyer

There are several phases of the judicial process that are not considered critical stages. The courts refer to these as “non-critical stages”, and the defendant has no right to have a lawyer present during them. This is because preliminary issues that are not associated with the more adversarial phases of the prosecution are considered. Examples of non-critical stages are:

Fingerprint collection and analysis
Research alignments
Photo IDs
Take blood, clothing, hair, handwriting, or voice samples.
Hearings to determine the existence of probable cause
Breaks during the defendant’s testimony
Procedures Related to Parole and Parole Issues
Post-conviction proceedings

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

Finally, in misdemeanor cases, the right to a lawyer is only granted if the person has been sentenced to imprisonment. Therefore, if the punishment for a misdemeanor involves only a fine, then the right to a lawyer is not attached. The right to an attorney is available in all felony cases.

Remedy for violation of the right to a lawyer

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

Resignation / replacement of attorney

Defendants also have the sixth amendment right to refuse representation by an attorney and represent themselves in court. Self-representation is also known as pro se representation. The court is required to allow pro representation, but only if the defendant makes a conscious and intelligent waiver of the right to counsel. In addition, the court must inform the person of the possible disadvantages of pro se representation. The defendant must understand that pro representation involves not only persuasion, but also includes knowledge of legal theories and proper court procedures.


Of course, all stages of a criminal trial are important in determining the outcome of the case. However, the courts have ruled that some phases of the trial are “critical”, in the legal sense that they require the presence of a lawyer. It is important to remember that while the right to an attorney is a guarantee, it only applies to the critical stages where the accused is faced with an accusatory scenario and runs the risk of an unfair trial if they are not represented. If you believe that you have been denied the right to an attorney during a critical stage of a trial, you may have more legal recourse for your case.