(Slip Opinion) OCTOBER TERM, 2007 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

ROTHGERY v. GILLESPIE COUNTY, TEXAS 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT 

No. 07–440. Argued March 17, 2008—Decided June 23, 2008 

Texas police relied on erroneous information that petitioner Rothgery

had a previous felony conviction to arrest him as a felon in possession

of a firearm. The officers brought Rothgery before a magistrate

judge, as required by state law, for a so-called “article 15.17 hearing,”

at which the Fourth Amendment probable-cause determination was 

made, bail was set, and Rothgery was formally apprised of the accusation against him. After the hearing, the magistrate judge committed Rothgery to jail, and he was released after posting a surety bond.

Rothgery had no money for a lawyer and made several unheeded oral

and written requests for appointed counsel. He was subsequently indicted and rearrested, his bail was increased, and he was jailed when 

he could not post the bail. Subsequently, Rothgery was assigned a 

lawyer, who assembled the paperwork that prompted the indictment’s dismissal. 

Rothgery then brought this 42 U. S. C. §1983 action against respondent County, claiming that if it had provided him a lawyer 

within a reasonable time after the article 15.17 hearing, he would not

have been indicted, rearrested, or jailed. He asserts that the 

County’s unwritten policy of denying appointed counsel to indigent 

defendants out on bond until an indictment is entered violates his 

Sixth Amendment right to counsel. The District Court granted the 

County summary judgment, and the Fifth Circuit affirmed, considering itself bound by Circuit precedent to the effect that the 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 at the hearing, and there was no indication that the officer at Rothgery’s appearance had any power to commit the State to 

prosecute without a prosecutor’s knowledge or involvement. 
 

 

 

 

2 ROTHGERY v. GILLESPIE COUNTY 

Syllabus 

Held: A criminal defendant’s initial appearance before a magistrate

judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Attachment does not also require that a prosecutor (as distinct 

from a police officer) be aware of that initial proceeding or involved in 

its conduct. Pp. 5–20.

(a) Texas’s article 15.17 hearing marks the point of attachment, 

with the consequent state obligation to appoint counsel within a reasonable time once a request for assistance is made. This Court has 

twice held that the right to counsel attaches at the initial 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 

Michigan v. Jackson, 475 U. S. 625, 629, n. 3; Brewer v. Williams, 

430 U. S. 387, 398–399. Rothgery’s hearing was an initial appearance: he was taken before a magistrate judge, informed of the formal 

accusation against him, and sent to jail until he posted bail. Thus, 

Brewer and Jackson control. Pp. 5–10.

(b) In McNeil v. Wisconsin, 501 U. S. 171, 180–181, the Court reaffirmed that “[t]he Sixth Amendment right to counsel attaches at the 

first formal proceeding against an accused,” and observed that “in

most States . . . free counsel is made available at that time.” That 

observation remains true today. The overwhelming consensus practice conforms to the rule that the first formal proceeding is the point

of attachment. The Court is 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. To the extent the remaining 7 States

have been denying appointed counsel at that time, they are a distinct

minority. Pp. 10–12. 

(c) Neither the Fifth Circuit nor the County offers an acceptable 

justification for the minority practice. Pp. 12–19. 

(1) The Fifth Circuit found the determining factor to be that no

prosecutor was aware of Rothgery’s article 15.17 hearing or involved 

in it. This prosecutorial awareness 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 Circuit 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. 

The Fifth Circuit derived its rule from the statement, in Kirby v. Illinois, 406 U. S. 682, 689, that the right to counsel attaches when the 

government has “committed itself to prosecute.” But what counts as 
 

 

 

 

 

 

Cite as: 554 U. S. ____ (2008) 3 

Syllabus 

such a commitment is an issue of federal law unaffected by allocations of power among state officials under state law, cf. Moran v. 

Burbine, 475 U. S. 412, 429, n. 3, 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, see, e.g., Kirby, supra, at 689. Pp. 12–15. 

(2) The County relies on United States v. Gouveia, 467 U. S. 180, 

in arguing that in considering the initial appearance’s significance, 

this Court must ignore prejudice to a defendant’s pretrial liberty, it 

being the concern, not of the right to counsel, but of the speedy-trial

right and the Fourth Amendment. But the County’s suggestion that

Fifth Amendment protections at the early stage obviate attachment 

of the Sixth Amendment right at initial appearance was refuted by 

Jackson, 475 U. S., at 629, n. 3. And since the Court is 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 at issue. Pp. 15–17.

(3) The County’s third tack gets it no further. Stipulating that

the properly formulated test is whether the State has objectively

committed itself to prosecute, the County says that prosecutorial involvement is but one form of evidence of such commitment and that 

others include (1) the filing of formal charges or the holding of an adversarial preliminary hearing to determine probable cause to file

such charges, and (2) a court appearance following arrest on an indictment. Either version 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. 

The County’s assertions that Brewer and Jackson are “vague” and 

thus of limited, if any, precedential value are wrong. Although the 

Court in those cases saw no need for lengthy disquisitions on the initial appearance’s significance, that was because it found the attachment issue an easy one. See, e.g., Brewer, supra, at 399. Pp. 17–19. 

491 F. 3d 293, vacated and remanded. 

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and STEVENS, SCALIA, KENNEDY, GINSBURG, BREYER, and ALITO, 

JJ., joined. ROBERTS, C. J., filed a concurring opinion, in which SCALIA, 

J., joined. ALITO, J., filed a concurring opinion, in which ROBERTS, C. J., 

and SCALIA, J., joined. THOMAS, J., filed a dissenting opinion. 
 

 

_________________ 

_________________ 

Cite as: 554 U. S. ____ (2008) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

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,1 a criminal background check disclosed an erroneous record that he had been, and on July 

—————— 

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). 
 

2 ROTHGERY v. GILLESPIE COUNTY 

Opinion of the Court 

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).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 determination3 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 

—————— 

2A 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”). 3See 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”). 
Cite as: 554 U. S. ____ (2008) 3 

Opinion of the Court 

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,4 which 

went unheeded.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. 

—————— 

4Because respondent Gillespie County obtained summary judgment

in the current case, we accept as true that Rothgery made multiple 

requests. 5Rothgery 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. 
 

 

 

4 ROTHGERY v. GILLESPIE COUNTY 

Opinion of the Court 

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.6 Rothgery sees this policy as violating his Sixth 

Amendment right to counsel.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. 

—————— 

6Rothgery 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). 7Such 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”). 
 

 

Cite as: 554 U. S. ____ (2008) 5 

Opinion of the Court 

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”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 presuma-

—————— 

8The Sixth Amendment provides that “[i]n all criminal prosecutions, 

the accused shall enjoy the right . . . to have the Assistance of Counsel 

for his defence.” 
 

 

 

6 ROTHGERY v. GILLESPIE COUNTY 

Opinion of the Court 

bly 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– 

3.9 Brewer and Jackson control. 

The Brewer defendant surrendered to the police after a

warrant was out for his arrest on a charge of abduction. 

—————— 

9The 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). 
 

Cite as: 554 U. S. ____ (2008) 7 

Opinion of the Court 

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.10 

—————— 

10The 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 
 

 

8 ROTHGERY v. GILLESPIE COUNTY 

Opinion of the Court 

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.11 “The defendant’s 

—————— 

unmentioned assumption, and thus it lends no support to the dissent’s

claim that we should ignore what Brewer explicitly said. 11The 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 
 

Cite as: 554 U. S. ____ (2008) 9 

Opinion of the Court 

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.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).13 See Coleman v. Alabama, 399 U. S. 1, 8 (1970) 

—————— 

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”). 12The 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. 13The 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 
 

 

10 ROTHGERY v. GILLESPIE COUNTY 

Opinion of the Court 

(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 

—————— 

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. 
Cite as: 554 U. S. ____ (2008) 11 

Opinion of the Court 

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);14 

—————— 

14The 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. 
 

12 ROTHGERY v. GILLESPIE COUNTY 

Opinion of the Court 

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 

—————— 

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). 
 

Cite as: 554 U. S. ____ (2008) 13 

Opinion of the Court 

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. 
 

14 ROTHGERY v. GILLESPIE COUNTY 

Opinion of the Court 

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 
Cite as: 554 U. S. ____ (2008) 15 

Opinion of the Court 

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, 
 

 

16 ROTHGERY v. GILLESPIE COUNTY 

Opinion of the Court 

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 
 

Cite as: 554 U. S. ____ (2008) 17 

Opinion of the Court 

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. 
 

18 ROTHGERY v. GILLESPIE COUNTY 

Opinion of the Court 

(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 
 

Cite as: 554 U. S. ____ (2008) 19 

Opinion of the Court 

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 least15 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.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 

—————— 

15We 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. 16The 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). 
 

 

20 ROTHGERY v. GILLESPIE COUNTY 

Opinion of the Court 

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.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. 

—————— 

17The 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. 
 

_________________ 

_________________ 

Cite as: 554 U. S. ____ (2008) 1 

ROBERTS, C. J., concurring 

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. 
_________________ 

_________________ 

Cite as: 554 U. S. ____ (2008) 1 

ALITO, J., concurring 

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 “at-
 

 

2 ROTHGERY v. GILLESPIE COUNTY 

ALITO, J., concurring 

taching.” 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 
Cite as: 554 U. S. ____ (2008) 3 

ALITO, J., concurring 

(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 
 

 

4 ROTHGERY v. GILLESPIE COUNTY 

ALITO, J., concurring 

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 
Cite as: 554 U. S. ____ (2008) 5 

ALITO, J., concurring 

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. 
 

6 ROTHGERY v. GILLESPIE COUNTY 

ALITO, J., concurring 

(“[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. 
_________________ 

_________________ 

Cite as: 554 U. S. ____ (2008) 1 

THOMAS, J., dissenting 

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 
 

2 ROTHGERY v. GILLESPIE COUNTY 

THOMAS, J., dissenting 

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 
 

Cite as: 554 U. S. ____ (2008) 3 

THOMAS, J., dissenting 

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). 
 

4 ROTHGERY v. GILLESPIE COUNTY 

THOMAS, J., dissenting 

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”). 
 

 

Cite as: 554 U. S. ____ (2008) 5 

THOMAS, J., dissenting 

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 
 

 

6 ROTHGERY v. GILLESPIE COUNTY 

THOMAS, J., dissenting 

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 
 

Cite as: 554 U. S. ____ (2008) 7 

THOMAS, J., dissenting 

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 coun-
 

8 ROTHGERY v. GILLESPIE COUNTY 

sel. 

THOMAS, J., dissenting 

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 
 

Cite as: 554 U. S. ____ (2008) 9 

THOMAS, J., dissenting 

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); 
 

 

 

 

10 ROTHGERY v. GILLESPIE COUNTY 

THOMAS, J., dissenting 

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 
 

Cite as: 554 U. S. ____ (2008) 11 

THOMAS, J., dissenting 

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.1

 In Brewer, the defendant challenged his conviction for 

murdering a 10-year-old girl on the ground that his Sixth 

—————— 

1The 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. 
 

 

12 ROTHGERY v. GILLESPIE COUNTY 

THOMAS, J., dissenting 

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.” Metro-
 

Cite as: 554 U. S. ____ (2008) 13 

THOMAS, J., dissenting 

politan 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 
 

14 ROTHGERY v. GILLESPIE COUNTY 

THOMAS, J., dissenting 

(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– 
Cite as: 554 U. S. ____ (2008) 15 

THOMAS, J., dissenting 

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.2 That rule 

—————— 

2The 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 sup-
 

 

 

 

16 ROTHGERY v. GILLESPIE COUNTY 

THOMAS, J., dissenting 

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 

—————— 

port 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. 
 

Cite as: 554 U. S. ____ (2008) 17 

THOMAS, J., dissenting 

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 
 

18 ROTHGERY v. GILLESPIE COUNTY 

THOMAS, J., dissenting 

“[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 
Cite as: 554 U. S. ____ (2008) 19 

THOMAS, J., dissenting 

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.