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The right to counsel is an important right that is grounded in the 6th Amendment of the United States Constitution.

The 6th Amendment right to counsel only applies when:

  • Criminal prosecution has begun and
  • where the government is taking deliberate action to elicit incriminating information about the crime charged.
Moreover, a criminal defendant has the right to have counsel present at all critical stages of the criminal proceeding.
  • A critical stage is a stage in which rights could be lost, which include:
  1. pretrial lineups​
  2. preliminary hearings and
  3. arraignment in which rights may be lost such as bail.
Finally, counsel must be appointed where there is any possibility of prison or for ANY felony.
WAIVER OF THE 6th AMENDMENT RIGHT TO COUNSEL : The right to counsel can be waived if it is done knowingly, intelligently, and voluntarily.
6th Amendment Right to Counsel Scenarios:

Pre-indictment lineup:

  • There is no 6th Amendment right to counsel before the initiation of criminal proceedings.

Post-Indictment lineup:

  • This is a critical stage of prosecution and doing a post-indictment lineup without counsel present can violate the 6th Amendment right to counsel.

Police displaying a photo lineup or take a handwriting sample from the defendant

  • These are not considered critical stages and the 6th Amendment does not require the presence of counsel. ​