1 (Slip Opinion) OCTOBER TERM, 2007

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 info rmation 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 accu

sation against him. After the hearing, the magistrate judge commit

ted 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 in

dicted 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 paperw ork that prompted the indict

ment’s dismissal.

Rothgery then brought this 42 U. S. C. §1983 action against re

spondent 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, re arrested, 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 Fi fth Circuit affirmed, consider

ing itself bound by Circuit preceden t to the effect that the right to counsel did not attach at the article 15.17 hearing because the rele

vant prosecutors were not aware of, or involved in, Rothgery’s arrest or appearance at the hearing, and there was no indication that the of

ficer 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 sub

ject to restriction, marks the initiation of adversary judicial proceed

ings that trigger attachment of the Sixth Amendment right to coun

sel. Attachment does not also requ ire that a prosecutor (as distinct from a police officer) be aware of th at 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 rea

sonable 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 ac

cusation 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 appear

ance: 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 reaf

firmed 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 prac

tice 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, includ ing 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 de termining factor to be that no prosecutor was aware of Rothgery’s article 15.17 hearing or involved in it. This prosecutorial awaren ess standard is wrong. Neither
Brewer nor Jackson said a word about the prosecutor’s involvement as a relevant fact, much less a co ntrolling one. Those cases left no room for the factual enquiry the Circu it would require, and with good
reason: an attachment rule that turned on determining the moment of a prosecutor’s first involvemen t would be “wholly unworkable and impossible to administer,” Escobedo v. Illinois , 378 U. S. 478, 496.
The Fifth Circuit derived its ru le from the statement, in Kirby v. Illi

nois , 406 U. S. 682, 689, that the right to counsel attaches when the government has “committed itself to prosecute.” But what counts as3 Cite as: 554 U. S. ____ (2008)

Syllabus

such a commitment is an issue of federal law unaffected by alloca

tions 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 th e early stage obviate attachment of the Sixth Amendment right at in itial 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 poin t earlier than formal judicial pro

ceedings (as in Gouveia ), but to defer it to those proceedings in which a prosecutor is involved, Gouveia does not speak to the question at is

sue. 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 Co unty says that prosecutorial in

volvement is but one form of evid ence of such commitment and that others include (1) the filing of formal charges or the holding of an ad

versarial preliminary hearing to determine probable cause to file such charges, and (2) a court appearance following arrest on an in

dictment. Either version runs up against Brewer and Jackson: an initial appearance following a ch arge signifies a sufficient commit

ment to prosecute regardless of a pr osecutor’s participation, indict

ment, information, or what the Co unty calls a “formal” complaint. The County’s assertions that Brewer and Jackson are “vague” and thus of limited, if any, precedenti al value are wrong. Although the Court in those cases saw no need for lengthy disquisitions on the ini

tial appearance’s significance, that was because it found the attach

ment issue an easy one. See, e.g., Brewer, supra, at 399. Pp. 17–19.
491 F. 3d 293, vacated and remanded.

S OUTER
, J., delivered the opinion of the Court, in which R OBERTS
, C. J., and S TEVENS , S CALIA , K ENNEDY , G INSBURG , B REYER , and A LITO
, JJ., joined. R OBERTS
, C. J., filed a concurring opinion, in which S CALIA
, J., joined. A LITO
, J., filed a concurring opinion, in which R OBERTS
, C. J.,
and S CALIA
, J., joined. T HOMAS
, J., filed a dissenting opinion._________________

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

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, Wash

ington, 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]

J USTICE S OUTER delivered the opinion of the Court.

This Court has held that th e right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at wh ich a defendant is told of the formal accusation against him and restrictions are im

posed 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 pro

ceeding or involved in its cond uct. We hold that it does

not.

I
A
Although petitioner Walter Rothgery has never been convicted of a felony, 1 a criminal background check dis

closed 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 si des 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 offi

cers 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 hear

ing,” see, e.g., Kirk v. State , 199 S. W. 3d 467, 476–477 (Tex. App. 2006); it combines the Fourth Amendment’s required probable-cause determination 3 with the setting of bail, and is the point at which the arrestee is formally apprised of the accusation against him, see Tex. Crim. Proc. Code Ann., Art. 15.17(a). Rothgery’s article 15.17 hearing followed routine. The arresting officer submitted a sworn “Affidavit Of Probable Cause” that described the facts supporting the arrest and “charge[d] that . . . Rothgery . . . commit[ted] the offense of unlawful possession of a firearm by a felon—3rd degree felony [Tex. Penal Code Ann. §46.04],” App. to Pet. for Cert. 33a. After reviewing th e affidavit, the magistrate judge “determined that probable cause existed for the

——————

2 A separate article of the Texas Code of Criminal Procedure requires prompt presentment in the case of arrests under warrant as well. See Art. 15.17(a) (West Supp. 2007). Whether the arrest is under warrant or warrantless, article 15.17 details the procedures a magistrate judge must follow upon presentment. S ee Art. 14.06(a) (in cases of war

rantless arrest, “[t]he magistrate shall immediately perform the duties described in Article 15.17 of this Code”).

3 See Gerstein v. Pugh , 420 U. S. 103, 113–114 (1975) (“[A] police

man’s on-the-scene assessment of probable cause provides legal justifi

cation 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 requir es a judicial determination of probable cause as a prerequisite to extended restraint of liberty follow

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

Opinion of the Court

arrest.” Id. , at 34a. The magistrate judge informed Roth

gery of the accusation, set his bail at $5,000, and commit

ted 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 subse

quent 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 conv icted of a felony. Counsel relayed this information to the district attorney, who in turn filed a motion to dismiss the indictment, which was granted.

——————

4 Because respondent Gillespie County obtained summary judgment in the current case, we accept as true that Rothgery made multiple
requests.

5 Rothgery also requested counsel at the article 15.17 hearing itself, but the magistrate judge informed hi m 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 in

dictment. 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 prosecut ors 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 indi

cation that the officer who filed the probable cause affida

vit at Rothgery’s appearance had any power to commit the state to prosecute without th e knowledge or involvement of a prosecutor,” 491 F. 3d, at 297.

——————

6 Rothgery does not challenge the County’s written policy for ap

pointment 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).

7 Such a policy, if proven, arguably would also be in violation of Texas state law, which appears to require a ppointment 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 st atutorily entitled to the appoint

ment of counsel within three days after having requested it”).5 Cite as: 554 U. S. ____ (2008)

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 assis

tance 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 formal

ism,” but a recognition of the point at which “the govern

ment 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 reas onable time once a request
for assistance is made.

A
When the Court of Appeals said no, because no prosecu

tor was aware of Rothgery’s article 15.17 hearing or in

volved in it, the court effective ly focused not on the start of adversarial judicial proceedings, but on the activities and knowledge of a particular state official who was presuma

-

——————

8 The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence.”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; Brewer430 U. S., at 399.
This first time before a co urt, also known as the “ ‘prelimi

nary 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 fur

ther 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 magis

trate judge, informed of th e 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.

——————

9 The Court of Appeals did not resolve whether the arresting officer’s formal accusation would count as a “formal complaint” under Texas state law. See 491 F. 3d, at 298–300 (noting the confusion in the Texas state courts). But it rightly ackn owledged (albeit in considering the separate question whether the comp laint was a “formal charge”) that the constitutional significance of ju dicial proceedings cannot be allowed to founder on the vagaries of stat e 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 formalis tic question of whether the affidavit here would be considered a ‘complai nt’ 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. In

stead, we must look to the specific circumstances of this case and the nature of the affidavit filed at Rothgery’s appearance before the magis

trate” (footnote omitted)). What counts is that the complaint filed with the magistrate judge accused Rothgery of committing a particular crime and prompted the judicial office r to take legal action in response (here, to set the terms of bail an d order the defendant locked up).7 Cite as: 554 U. S. ____ (2008)

Opinion of the Court

He was then “arraigned before a judge . . . on the out

standing 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 indictmen t 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 clea rly 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

——————

10 The dissent says that “ Brewer ’s attachment holding is indisputably no longer good law” because “we have subsequently held that the Sixth Amendment right to counsel is ‘ “offense specific,” ’ ” post , at 13 (opinion
of T HOMAS , J.) (quoting Texas v. Cobb , 532 U. S. 162, 164 (2001)), i.e.

, that it does not “exten[d] to crimes th at 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 sh ould 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 spec ificity, it spoke clearly and force

fully about attachment. Cobb merely declined to follow Brewer ’s8 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 ap

pearance, and we had no more trouble answering it the
second time around. Jackson was actually two consoli

dated cases, and although the State conceded that respon

dent 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 with

out 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 jurisdic

tion to render a final deci sion 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 Crimi

nal 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.

11 The State continued to press this co ntention 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 jo b 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 presen t for arraignment, for this type of9 Cite as: 554 U. S. ____ (2008)

Opinion of the Court

rights,” the State insisted, “are fully protected in the context of custodial interrogation between initial arraign

ment and preliminary examination by the Fifth Amend

ment right to counsel” and by the preliminary examina

tion itself. 12 See BladelBrief, supra, at 26. We flatly rejected the distinction between initial ar

raignment 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 judi

cial 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 indict

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

—————— an arraignment, for an initial appe arance, 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 g oes through this procedure. . . . There is typically nobody from our si de, if you will, there to see what’s going on”).

12 The preliminary examination is a preindictment stage at which the defendant is allowed to test the prosecution’s evidence against him, and to try to dissuade the prosecutor from seeking an indictment. See
Coleman v. Alabama , 399 U. S. 1 (1970). In Texas, the defendant is notified of his right to a preliminar y 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 examin ing trial in Texas is optional only,
and the defendant must affirmativel y request it. See Reply Brief for
Petitioner 25.

13 The County, in its brief to this Court, suggests that although
Brewer and Jackson spoke of attachment at th e initial appearance, the cases might actually have turned on some unmentioned fact. As to10 ROTHGERY v. GILLESPIE COUNTY

Opinion of the Court

(plurality opinion) (right to counsel applies at preindict

ment 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 appear

ance 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 prelimi

nary 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 incriminat

ing 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 Respon

dent 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 Repl y Brief for Petitioner 11. As to
Jackson , the County suggests that the Court might have viewed Michi

gan’s initial arraignment as a sign ificant proceeding only because the defendant could make a statement at that hearing, and because re

spondent 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 rejec

tion of the State’s claims. It is fu rther 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 11–12.11 Cite as: 554 U. S. ____ (2008)

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 Fed

eral 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

——————

14 The 43 States are these: (1) Alaska: see Alaska Stat. §18.85.100 (2006); Alaska Rule Crim. Proc. 5 (Lexis 2006–2007); (2) Arizona: see Ariz. Rules Crim. Proc. 4.2, 6.1 (West Supp. 2007), (West 1998); (3) Arkansas: see Ark. Rule Crim. Proc. 8.2 (2006); Bradford v. State , 325 Ark. 278, 927 S. W. 2d 329 (1996); (4 ) California: see Cal. Penal Code §§858, 859 (West Supp. 2008); In re Johnson , 62 Cal. 2d 325, 329–330, 398 P. 2d 420, 422–423 (1965); (5) Connecticut: see Conn. Gen. Stat. §54–1b (2005); Conn. Super. Ct. Crim. Rules §§37–1, 37–3, 37–6 (West 2008); State v. Pierre , 277 Conn. 42, 95–96, 890 A. 2d 474, 507 (2006); (6) Delaware: see Del. Code Ann., Tit. 29, §4604 (2003); Del. Super. Ct. Crim. Rules 5, 44 (2008); Deputy v. State , 500 A. 2d 581 (Del. 1985); (7) Florida: see Fla. Rule Crim. Proc. 3.111 (West 2007); (8) Georgia: see Ga. Code Ann. §§17–4–26 (2004), 17–12–23 (Supp. 2007); O’Kelley v. State , 278 Ga. 564, 604 S. E. 2d 509 (2004); (9) Hawaii: see Haw. Rev. Stat. §§802–1, 803–9 (1993); (10) Idaho: see Idaho Crim. Rules 5, 44 (Lexis 2007); Idaho Code §19–852 (Lexis 2004); (11) Illinois: see Ill. Comp. Stat., ch. 725, §5/109–1 (2006); (12) Indiana: see Ind. Code §§35– 33–7–5, 35–33–7–6 (West 2004); (13) Iowa: see Iowa Rules Crim. Proc. §§2.2, 2.28 (West 2008); (14) Kentucky : see Ky. Rule Crim. Proc. §3.05 (Lexis 2008); (15) Louisiana: see La. Code Crim. Proc. Ann., Art 230.1 (West Supp. 2008); (16) Maine: s ee 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 Law

yers 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 argu

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

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 ad

dressed 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 adver

sary 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 awar eness, 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,” Esco

bedo v. Illinois , 378 U. S. 478, 496 (1964) (White, J., dis

senting), guaranteed to bog th e 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 at

tachment 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 thei r arrestees to county prose

cutor 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 co mputer intake system,” Brief for Brennan Center, supra, at 11; see also id. , at 10–12 (noting that only “[s]ome Texas counties . . . have com

puter systems that provide arrest and detention informa

tion simultaneously to prosecutors, law enforcement offi

cers, jail personnel, and clerks. Prosecutors in these jurisdictions use the systems to prescreen cases early in the process before an initial appearance” (citing D. Carmi

chael, 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 prose

cute 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 si gnaled 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 defini

tion”), and under the federal standard, an accusation filed with a judicial officer is su fficiently formal, and the gov

ernment’s commitment to prosecute it sufficiently con

crete, when the accusation prompts arraignment and restrictions on the accused’s liberty to facilitate the prose

cution, see Jackson , 475 U. S., at 629, n. 3; Brewer , 43015 Cite as: 554 U. S. ____ (2008)

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 im

posed bail, awaits preliminary examination on the author

ity of a charging document f iled by the prosecutor, less typically by the police, and ap proved 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 con

tacted 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 t hat 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 Re

spondent 49; see also Brief for Texas et al. as Amici Curiae 8–9. We think the County’s reliance on Gouveia is mis

placed, and its argument mistaken.
The defendants in Gouveia were prison inmates, sus

pected of murder, who had been placed in an administra

tive detention unit and denied counsel up until an indict

ment 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 ac

tively investigating the crimes. We recognized that “be

cause 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 limita

tion 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 Amend

ment right to counsel in order to provide additional protec

tions 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 reaf

firmed two years later in Jackson , that bringing a defen

dant before a court for initial appearance signals a suffi

cient 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 Amend

ment right at initial appearance. See supra , at 8–9.) And
since we are not asked to exte nd the right to counsel to a17 Cite as: 554 U. S. ____ (2008)

Opinion of the Court

point earlier than formal judicial proceedings (as in Gou

veia ), but to defer it to those proceedings in which a prose

cutor 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 defen

dant 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 prop erly formulated test is not . . . merely whether prosecut ors 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 com

plaint, or the holding of an adversarial preliminary hear

ing 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 Responde nt 32. Either version, in any event, runs up against Brewer and Jackson : an initial appearance following a charge signifies a sufficient com

mitment to prosecute regardle ss of a prosecutor’s partici

pation, 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 frame

work for determining attachmen t”). 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 al

lowed 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 appear

ances at which the aid of counsel is urgent and “ ‘the dan

gers 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 presen

tation 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 dis

covery.” 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 the19 Cite as: 554 U. S. ____ (2008)

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 least 15 is entitled to the presence of appointed counsel during any “critical stage” of the postattachment proceed ings; 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

——————

15 We do not here purport to set out the scope of an individual’s postattachment right to the presence of counsel. It is enough for present purposes to highlight that the enquir y into that right is a different one from the attachment analysis.

16 The cases have defined critical st ages 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 proble ms 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 prose

cutor walks over to the trial co urt to file an information.
As we said in Jackson , “[t]he question whether arraign

ment signals the initiation of adversary judicial proceed

ings . . . is distinct from the question whether the ar

raignment 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 preju

dice to Rothgery’s Sixth Amendment rights, and have no occasion to consider what standards should apply in decid

ing this. We merely reaffirm what we have held before and what an overwhelming majority of American jurisdic

tions 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 coun

sel. Because the Fifth Circuit came to a different conclu

sion on this threshold issue, its judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

——————

17 The dissent likewise anticipates an issue distinct from attachment when it claims Rothgery has suffered no harm the Sixth Amendment recognizes. Post , at 18. Whether the right has been violated and whether Rothgery has suffered cognizable harm are separate questions from when the right attaches, the sole question before us._________________

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

R OBERTS
, 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]

C HIEF J USTICE R OBERTS , with whom J USTICE S CALIA joins, concurring.

J USTICE T HOMAS ’s analysis of the present issue is com

pelling, 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 J USTICE A LITO ’s concurrence, which correctly distinguishes between the time the right to counsel at

taches and the circumstances under which counsel must be provided._________________

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

A LITO
, 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]

J USTICE A LITO , with whom T HE C HIEF J USTICE and
J USTICE S CALIA 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 “attach

ment” 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 Amend

ment’s substantive guarantee of “the Assistance of Coun

sel 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 de

fence.” 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 guar

antees (“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

A LITO
, 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 con

ducted 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 prosecu

tion’s evidence of a robbery victim’s one-on-one sta

tionhouse identification of an uncounseled suspect shortly after the suspect’s arrest was admissible be

cause adversary judicial criminal proceedings had not yet been initiated.” Id., at 226–227 (internal quota

tion 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, 1883 Cite as: 554 U. S. ____ (2008)

A LITO
, 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) (T HOMAS

, J., dissenting); Patterson v. Illinois , 487
U. S. 285, 303–304 (1988) (S TEVENS , 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 initi

ated 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 Amend

ments means at least that a person is entitled to the help of a lawyer at or after the ti me that judicial proceedings have been initiated against him . . .”). Because pretrial criminal procedures vary substantially from jurisdiction to jurisdiction, there is room for dis

agreement about when a “pro secution” begins for Sixth Amendment purposes. As the Court, notes, however, we have previously held that “arr aignments” that were func

tionally 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 de cide whether the Fifth Circuit4 ROTHGERY v. GILLESPIE COUNTY

A LITO
, J., concurring

erred in concluding “that ad versary judicial proceedings . . . had not commenced, and petitioner’s Sixth Amend

ment 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 tem

poral 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 ‘Assis

tance’ 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 insubstan

tial effect on the defendant’s trial rights). More generally, we have rejected the notion that the right to counsel enti

tles the defendant to a “preindictment private investiga

tor.” Gouveia

, supra , at 191. At the same time, we have recognized that certain pre

trial events may so prejudice the outcome of the defen

dant’s prosecution that, as a practical matter, the defen

dant 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 defen

dant is entitled to the assistance of appointed counsel at a preliminary hearing if “substantial prejudice . . . inheres in the . . . confrontation” and “counsel [may] help avoid5 Cite as: 554 U. S. ____ (2008)

A LITO
, J., concurring

that prejudice.” Coleman v. Alabama , 399 U. S. 1, 9 (1970) (plurality opinion) (internal quotation marks omit

ted); 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 con

frontation 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 interro

gation, 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 coun

sel only after the defendant’s prosecution has begun, and then only as necessary to guarantee the defendant effec

tive assistance at trial. Cf. McNeil , 501 U. S., at 177–178 (“The purpose of the Sixth Amendment counsel guaran

tee—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 posi

tions of government and defendant have solidified with respect to a particular alleged crime” (emphasis and al

teration 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 occur

rence 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

A LITO
, 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 Amend

ment. Because I agree with the Court’s resolution of that limited question, I join its opinion in full._________________

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

T HOMAS
, 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]

J USTICE T HOMAS , 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 sup

ported by the original meaning of the Sixth Amendment or any reasonable interpretation of our precedents, I respect

fully 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 prosecu

tio[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’ ”). Echoing2 ROTHGERY v. GILLESPIE COUNTY

T HOMAS
, J., dissenting

this refrain, the Court today reiterates that “[t]he Sixth Amendment right of the ‘accuse d’ 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 attempte d 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 pro

ceeding 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 or

der.” Ibid. The first six relate to pretrial events: “1. Ar

rest; 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 th e entire criminal process as a “prosecution,” but rather listed prosecution as the third step in a list of successive stages. For a more complete3 Cite as: 554 U. S. ____ (2008)

T HOMAS
, J., dissenting

understanding of what Blacksto ne 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 ar rest 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 for

mal 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 signific ant 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. Black

stone’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 commit

ted a crime. See id ., at *289–*300. But the accusation justifying arrest and detentio n 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 “indict

ment” 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, “after

wards to be tried and determined,” id ., at *303, “before an officer having power to punish the [charged] offence,” 2 T. Cunningham, A New and Comple te Law Dictionary (2d ed. 1771).4 ROTHGERY v. GILLESPIE COUNTY

T HOMAS
, 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 origi

nally been by indictment,” id ., at *310. From the foregoing, the basic elements of a criminal “prosecution” emerge with re asonable clarity. “Prosecu

tion,” 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 commence

ment 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, infor

mation or indictment”).5 Cite as: 554 U. S. ____ (2008)

T HOMAS
, 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.” In

deed, elsewhere in the Bill of Rights we find just such an
alternative formulation: In contrast to the Sixth Amend

ment, 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 diffe rence in phraseology was not
accidental. There the Court held that the Fifth Amend

ment right not to be compelled to be a witness against oneself “in any criminal case” could be invoked by a wit

ness 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 prose

cutio[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 con

sidered 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 ar

rested 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 of6 ROTHGERY v. GILLESPIE COUNTY

T HOMAS
, J., dissenting

the statute at the time the respondent filed his removal petition. The Court held that a criminal prosecution had not com

menced, and that removal was therefore not authorized by
the terms of the statute. Th e Court noted that under Vir

ginia 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 . Accord

ingly, 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 jus

tice of the peace did not qualify as a “prosecution”:
“Proceedings before a magis trate to commit a person to jail, or to hold him to bail, in order to secure his ap

pearance to answer for a crime or offence which the magistrate has no jurisdicti on 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 s ubmitted to the magistrate was the arresting officer’s affidavit of probable cause. The7 Cite as: 554 U. S. ____ (2008)

T HOMAS
, 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 magis

trate certified that he had examined the affidavit and “determined that probable caus e 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 Blacksto ne identified with the com

mencement 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 plead

ing that instituted a criminal prosecution, such as an indictment, presentment, or information; and the magis

trate 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 Co urt’s conclusion that peti

tioner’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. T HOMAS
, J., dissenting

II
As the Court notes, our cases have “pegged commence

ment” of a criminal prosecution, ante , at 5, to “the initia

tion 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 re

peated 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 stem

ming 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)]; Ham

ilton v. Alabama , 368 U. S. 52 [(1961)]; Gideon v. Wainwright , 372 U. S. 335 [(1963)]; White v. Mary

land , 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 ex ists also at the time of a preliminary hearing. Coleman v. Alabama

, supra

. But the point is that, while members of the Court9 Cite as: 554 U. S. ____ (2008)

T HOMAS
, 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 ini

tiation of adversary judicial criminal proceedings— whether by way of formal charge, preliminary hear

ing, 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 dis

cussion 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 “adver

sary judicial criminal proceedings”: formal charge, pre

liminary hearing, indictment, information, and arraign

ment. None of these supports the result the Court reaches today. I will apply them seriatim . No indictment or in

formation 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 in

cluded an affidavit of probable cause in that category. None of the cases on which it relied stood for that proposi

tion. 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

T HOMAS
, J., dissenting

Massiah v. United States , 377 U. S. 201 (1964) (postin

dictment 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 appearanc e 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 pro

ceeding 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 arraign

ment where the defendant enters a plea. This would be the most reasonable assumption even if there were noth

ing 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 defendant11 Cite as: 554 U. S. ____ (2008)

T HOMAS
, J., dissenting

entered a plea. Hamilton

, supra , at 53, n. 3; Powell , 287
U. S., at 49. And the consider ations 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, thor

oughgoing investigation and preparation were vitally important, the defendants did not have the aid of coun

sel”); 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 “arraign

ment” in the list of adversary judicial proceedings that trigger the right to counsel t hus 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 mag

istrate. The Court concludes, however, that two subse

quent 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

——————

1 The Court also relies on McNeil v. Wisconsin , 501 U. S. 171 (1991), to support its assertion that the right to counsel attaches upon an initial appearance before a magistrate. Ante , at 10–11. But in McNeil

, the Court expressed no view whatsoever on the atta chment issue. Rather, it noted that the issue was “undisputed,” and “accept[ed] for purposes of the present case, that . . . [the defendant’s] Sixth Amend

ment right had attached.” 501 U. S., at 175. We do not ordinarily give weight to assumptions made in prio r cases about matters that were not in dispute.12 ROTHGERY v. GILLESPIE COUNTY

T HOMAS
, 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 “ar

raigned before a judge . . . on the outstanding arrest war

rant,” to Des Moines, where he was to be tried. 430 U. S., at 390–391. The principal issue was whether the defen

dant 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 ju

dicial 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 ar

rest, he had been arraigned on that warrant before a judge in a Davenport courtroom, and he had been committed by the court to co nfinement 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 ad

dressed by the parties,” it is “imprudent of us to address it . . . with any pretense of settling it for all time.” Metro

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

T HOMAS
, 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 adver

sarial or whether the defend ant 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 ar

raignment 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 dis

quisitio[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 at

tachment holding is indisputably no longer good law. That is because we have subseque ntly held that the Sixth Amendment right to counsel is “offense specific,” meaning that it attaches only to those offenses for which the defen

dant 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 18414 ROTHGERY v. GILLESPIE COUNTY

T HOMAS
, J., dissenting

(B REYER , 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 (“Constitu

tional 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 ar

raignment on the warrant was not the same type of ar

raignment 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 (K ENNEDY

, J., concurring) (ques

tioning 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 Jack

son , 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 627–15 Cite as: 554 U. S. ____ (2008)

T HOMAS
, 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 ar

raignment, the State’s argu ment 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

——————

2 The Court asserts that Jackson ’s “conclusion was driven by the
same considerations the Court had endorsed in Brewer ,” namely, that “by the time a defendant is brought befo re 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

T HOMAS
, 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 ar

raignment 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 to day. Respondent Bladel entered a “not guilty” plea at his arraignm ent, see Brief for Petitioner in Michi

gan 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. Th e 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 th e 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. An d that rule would not govern this case because petitioner did not ente r a plea at his initial appearance.17 Cite as: 554 U. S. ____ (2008)

T HOMAS
, 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 prosecu

torial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefor e, that marks the commence

ment of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are ap

plicable.” 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 Re

spondent 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 heretofo re associated with the right to counsel. The Court has repeatedly emphasized that18 ROTHGERY v. GILLESPIE COUNTY

T HOMAS
, 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] co nfronted with both the intri

cacies of the law and the advocacy of the public prosecu

tor.” 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 under

mined 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 convin cing 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 noti on, reasoning that a defen

dant’s liberty interests are protected by other constitu

tional guarantees. See id. , at 190 (“While the right to19 Cite as: 554 U. S. ____ (2008)

T HOMAS
, J., dissenting

counsel exists to protect th e accused during trial-type confrontations with the prosecutor, the speedy trial right exists primarily to protect an in dividual’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 interpret

ing 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.