Every state constitution, in addition to the U.S. Constitution, guarantees the right to counsel for a person charged with a criminal offense. When Gideon v. Wainwright was decided by the U.S. Supreme Court in 1963, the right was established to have counsel appointed if a defendant was financially unable to pay for an attorney. Gideon and subsequent cases guarantee the right to appointed counsel to anyone charged with a felony or certain misdemeanors.
The Supreme Court has subsequently addressed when counsel should be provided, ruling that the right to counsel attaches at a defendant’s initial appearance.
The Court’s opinion in Rothgery v. Gillespie County states that:
“Attachment occurs when the government has used the judicial machinery to signal a commitment to prosecute .... Once attachment occurs, the accused at least 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....”
“... [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.”
The Court also went on to say that counsel must be appointed within a reasonable amount of time after attachment to allow for adequate representation. This case law provides a baseline for providing indigent defendants with representation, but procedures for initial appearance and appointment of counsel vary by state.
In the first chart below you will find the exact language of each state constitutional provision establishing the right to counsel. In the second chart you will find statutory guidance on implementing the right to counsel in each state. State law summarized in the second chart provides guidance on what happens at a defendant’s initial appearance. Frequently these laws require a court to determine pretrial release and conditions of release, to advise defendants of their right to counsel and their right to appointed counsel if they are unable to afford an attorney, and to appoint counsel if they find that a defendant is indigent and is charged with an offense that requires representation.
The National Center for State Courts has compiled additional information on how courts have interpreted these legal provisions in a Justice Brief titled Access to Counsel at Pretrial Release Proceedings.
Return to Pretrial Policy Homepage
The box allows you to conduct a full text search or use the dropdown menu option to select a state.
Source: National Conference of State Legislatures, 2016
Westlaw was used to conduct this research.