ROTHGERY v. GILLESPIE COUNTY, TEXAS

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191 OCTOBER TERM, 2007
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ROTHGERY v. GILLESPIE COUNTY, TEXAS
certiorari to the united states court of appeals for
the fifth circuit
No. 07–440. Argued March 17, 2008—Decided June 23, 2008
Texas police relied on erroneous information that petitioner Rothgery had
a previous felony conviction to arrest him as a felon in possession of a
firearm. The officers brought Rothgery before a magistrate, as re
quired by state law, for a so-called “article 15.17 hearing,” at which the
Fourth Amendment probable-cause determination was made, bail was
set, and Rothgery was formally apprised of the accusation against him.
After the hearing, the magistrate committed Rothgery to jail, and he
was released after posting a surety bond. Rothgery had no money
for a lawyer and made several unheeded oral and written requests for
appointed counsel. He was subsequently indicted and rearrested, his
bail was increased, and he was jailed when he could not post the bail.
Subsequently, Rothgery was assigned a lawyer, who assembled the
paperwork that prompted the indictment’s dismissal.
Rothgery then brought this 42 U. S. C. § 1983 action against respond
ent County, claiming that if it had provided him a lawyer within a rea
sonable time after the article 15.17 hearing, he would not have been
indicted, rearrested, or jailed. He asserts that the County’s unwritten
policy of denying appointed counsel to indigent defendants out on bond
until an indictment is entered violates his Sixth Amendment right to
counsel. The District Court granted the County summary judgment,
and the Fifth Circuit affirmed, considering itself bound by Circuit prece
dent to the effect that the right to counsel did not attach at the article
15.17 hearing because the relevant prosecutors were not aware of, or
involved in, Rothgery’s arrest or appearance at the hearing, and there
was no indication that the officer at Rothgery’s appearance had any
power to commit the State to prosecute without a prosecutor’s knowl
edge or involvement.
Held: A criminal defendant’s initial appearance before a magistrate,
where he learns the charge against him and his liberty is subject to
restriction, marks the initiation of adversary judicial proceedings that
trigger attachment of the Sixth Amendment right to counsel. Attach
ment does not also require that a prosecutor (as distinct from a police

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officer) be aware of that initial proceeding or involved in its conduct.
Pp. 198–213.
(a) Texas’s article 15.17 hearing marks the point of attachment, with
the consequent state obligation to appoint counsel within a reasonable
time once a request for assistance is made. This Court has twice held
that the right to counsel attaches at the initial appearance before a judi
cial officer at which a defendant is told of the formal accusation against
him and restrictions are imposed on his liberty. See Michigan v. Jack
son, 475 U. S. 625, 629, n. 3; Brewer v. Williams, 430 U. S. 387, 398–
399. Rothgery’s hearing was an initial appearance: he was taken
before a magistrate, informed of the formal accusation against him, and
sent to jail until he posted bail. Thus, Brewer and Jackson control.
Pp. 198–203.
(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 observa
tion remains true today. The overwhelming consensus practice con
forms to the rule that the first formal proceeding is the point of attach
ment. The Court is advised without contradiction that not only the
Federal Government, including the District of Columbia, but 43 States
take the first step toward appointing counsel before, at, or just after
initial appearance. To the extent the remaining 7 States have been
denying appointed counsel at that time, they are a distinct minority.
Pp. 203–205.
(c) Neither the Fifth Circuit nor the County offers an acceptable jus
tification for the minority practice. Pp. 205–212.
(1) The Fifth Circuit found the determining factor to be that no
prosecutor was aware of Rothgery’s article 15.17 hearing or involved in
it. This prosecutorial awareness standard is wrong. Neither Brewer
nor Jackson said a word about the prosecutor’s involvement as a rele
vant fact, much less a controlling one. Those cases left no room for
the factual enquiry the Circuit would require, and with good reason: an
attachment rule that turned on determining the moment of a prosecu
tor’s first involvement would be “wholly unworkable and impossible to
administer,” Escobedo v. Illinois, 378 U. S. 478, 496. The Fifth Circuit
derived its rule from the statement, in Kirby v. Illinois, 406 U. S. 682,
689, that the right to counsel attaches when the government has “com
mitted itself to prosecute.” But what counts as such a commitment is
an issue of federal law unaffected by allocations of power among state
officials under state law, cf. Moran v. Burbine, 475 U. S. 412, 429, n. 3,

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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. 205–208.
(2) The County relies on United States v. Gouveia, 467 U. S. 180, in
arguing that in considering the initial appearance’s significance, this
Court must ignore prejudice to a defendant’s pretrial liberty, it being
the concern, not of the right to counsel, but of the speedy-trial right
and the Fourth Amendment. But the County’s suggestion that Fifth
Amendment protections at the early stage obviate attachment of the
Sixth Amendment right at initial appearance was refuted by Jackson,
supra, at 629, n. 3. And since the Court is not asked to extend
the right to counsel to a point earlier than formal judicial proceedings
(as in Gouveia), but to defer it to those proceedings in which a prose
cutor is involved, Gouveia does not speak to the question at issue.
Pp. 208–210.
(3) The County’s third tack gets it no further. Stipulating that the
properly formulated test is whether the State has objectively committed
itself to prosecute, the County says that prosecutorial involvement is
but one form of evidence of such commitment and that others include
(1) the filing of formal charges or the holding of an adversarial prelimi
nary hearing to determine probable cause to file such charges, and (2) a
court appearance following arrest on an indictment. Either version
runs up against Brewer and Jackson: an initial appearance following a
charge signifies a sufficient commitment to prosecute regardless of a
prosecutor’s participation, indictment, information, or what the County
calls a “formal” complaint. The County’s assertions that Brewer and
Jackson are “vague” and thus of limited, if any, precedential value are
wrong. Although the Court in those cases saw no need for lengthy
disquisitions on the initial appearance’s significance, that was because it
found the attachment issue an easy one. See, e. g., Brewer, supra, at
399. Pp. 210–212.
491 F. 3d 293, vacated and remanded.
Souter, J., delivered the opinion of the Court, in which Roberts,
C. J., and Stevens, Scalia, Kennedy, Ginsburg, Breyer, and Alito,
JJ., joined. Roberts, C. J., filed a concurring opinion, in which Scalia,
J., joined, post, p. 213. Alito, J., filed a concurring opinion, in which
Roberts, C. J., and Scalia, J., joined, post, p. 213. Thomas, J., filed a
dissenting opinion, post, p. 218.

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194 ROTHGERY v. GILLESPIE COUNTY
Opinion of the Court
Danielle Spinelli argued the cause for petitioner. With
her on the briefs were Seth P. Waxman, Craig Goldblatt,
Andrea Marsh, and William Christian.
Gregory S. Coleman argued the cause for respondent.
With him on the brief were Edward C. Dawson, Marc S.
Tabolsky, and Charles S. Frigerio.*
Justice Souter delivered the opinion of the Court.
This Court has held that the right to counsel guaranteed
by the Sixth Amendment applies at the first appearance be
fore a judicial officer at which a defendant is told of the for
mal accusation against him and restrictions are imposed on
his liberty. See Brewer v. Williams, 430 U. S. 387, 398–399
(1977); Michigan v. Jackson, 475 U. S. 625, 629, n. 3 (1986).
The question here is whether attachment of the right also
requires that a public prosecutor (as distinct from a police
*Briefs of amici curiae urging reversal were filed for the American Bar
Association by William H. Neukom and Jeffrey T. Green; for the Brennan
Center for Justice et al. by Anthony J. Franze and Son B. Nguyen; for
the National Association of Criminal Defense Lawyers by Ian Heath Ger
shengorn and Pamela Harris; and for Twenty-four Professors of Law by
Christopher J. Wright and Timothy J. Simeone.
Briefs of amici curiae urging affirmance were filed for the State of
Texas et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz,
Solicitor General, Kent C. Sullivan, First Assistant Attorney General,
Thomas M. Lipovski, Danica L. Milios, and Susanna G. Dokupil, Assist
ant Solicitors General, and Eric J. R. Nichols, Deputy Attorney General,
by Roberto J. Sa´ nchez-Ramos, Secretary of Justice of Puerto Rico, and by
the Attorneys General for their respective States as follows: Troy King of
Alabama, John W. Suthers of Colorado, Mark J. Bennett of Hawaii, Tom
Miller of Iowa, G. Steven Rowe of Maine, Jim Hood of Mississippi, Mike
McGrath of Montana, Catherine Cortez Masto of Nevada, Kelly A. Ayotte
of New Hampshire, W. A. Drew Edmondson of Oklahoma, Hardy Myers
of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Henry D. McMaster
of South Carolina, Lawrence E. Long of South Dakota, Robert E. Cooper,
Jr., of Tennessee, Mark L. Shurtleff of Utah, and Robert F. McDonnell of
Virginia; and for the Texas Association of Counties et al. by Alan Keith
Curry.

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officer) be aware of that initial proceeding or involved in its
conduct. We hold that it does not.
I
A
Although petitioner Walter Rothgery has never been con
victed of a felony,1 a criminal background check disclosed an
erroneous record that he had been, and on July 15, 2002,
Texas police officers relied on this record to arrest him as a
felon in possession of a firearm. The officers lacked a war
rant, and so promptly brought Rothgery before a magistrate,
as required by Tex. Code Crim. Proc. Ann., Art. 14.06(a)
(Vernon 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 Proce
dure § 15.01 (2d ed. 2001), which is sometimes called the “ar
ticle 15.17 hearing,” see, e. g., Kirk v. State, 199 S. W. 3d 467,
476–477 (Tex. App. 2006); it combines the Fourth Amend
ment’s required probable-cause determination 3 with the set
ting of bail, and is the point at which the arrestee is formally
apprised of the accusation against him, see Tex. Code Crim.
Proc. Ann., Art. 15.17(a) (Vernon Supp. 2007).
1 “[F]elony charges . . . had been dismissed after Rothgery completed a
diversionary program, and both sides agree that [he] did not have a felony
conviction.” 491 F. 3d 293, 294 (CA5 2007) (case below).
2 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 must follow
upon presentment. See Art. 14.06(a) (in cases of warrantless arrest,
“[t]he magistrate shall immediately perform the duties described in Arti
cle 15.17 of this Code”).
3 See Gerstein v. Pugh, 420 U. S. 103, 113–114 (1975) (“[A] policeman’s
on-the-scene assessment of probable cause provides legal justification for
arresting a person suspected of crime, and for a brief period of detention
to take the administrative steps incident to arrest[,] . . . [but] the Fourth
Amendment requires a judicial determination of probable cause as a pre
requisite to extended restraint of liberty following arrest”).

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Rothgery’s article 15.17 hearing followed routine. The ar
resting 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 fel
ony [Tex. Penal Code Ann. § 46.04],” App. to Pet. for Cert.
33a. After reviewing the affidavit, the magistrate “deter
mined that probable cause existed for the arrest.” Id., at
34a. The magistrate informed Rothgery of the accusation,
set his bail at $5,000, and committed him to jail, from which
he was released after posting a surety bond. The bond,
which the Gillespie County deputy sheriff signed, stated that
“Rothgery stands charged by complaint duly filed . . . with
the offense of a . . . felony, to wit: Unlawful Possession of a
Firearm by a Felon.” Id., at 39a. The release was condi
tioned on the defendant’s personal appearance in trial court
“for any and all subsequent proceedings that may be had
relative to the said charge in the course of the criminal action
based on said charge.” Ibid.
Rothgery had no money for a lawyer and made several
oral and written requests for appointed counsel,4 which went
unheeded.5 The following January, he was indicted by a
Texas grand jury for unlawful possession of a firearm by a
felon, resulting in rearrest the next day, and an order in
creasing 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
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 informed him that the appointment of counsel would delay
setting bail (and hence his release from jail). Given the choice of proceed
ing 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.

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out of jail), and assembled the paperwork confirming that
Rothgery had never been convicted of a felony. Counsel re
layed this information to the district attorney, who in turn
filed a motion to dismiss the indictment, which was granted.
B
Rothgery then brought this 42 U. S. C. § 1983 action
against respondent Gillespie County (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 in
dicted, rearrested, or jailed for three weeks. The County’s
failure is said to be owing to its unwritten policy of denying
appointed counsel to indigent defendants out on bond until
at least the entry of an information or indictment.6 Roth
gery sees this policy as violating his Sixth Amendment right
to counsel.7
The District Court granted summary judgment to the
County, see 413 F. Supp. 2d 806, 807 (WD Tex. 2006), and the
Court of Appeals affirmed, see 491 F. 3d 293, 294 (CA5 2007).
The Court of Appeals felt itself bound by Circuit precedent,
see id., at 296–297 (citing Lomax v. Alabama, 629 F. 2d 413
(CA5 1980), and McGee v. Estelle, 625 F. 2d 1206 (CA5 1980)),
to the effect that the Sixth Amendment right to counsel did
not attach at the article 15.17 hearing, because “the relevant
prosecutors were not aware of or involved in Rothgery’s ar
rest or appearance before the magistrate on July 16, 2002,”
and “[t]here is also no indication that the officer who filed the
6 Rothgery does not challenge the County’s written policy for appoint
ment 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 appointment of counsel for indigent
defendants released from custody, at the latest, when the “first court ap
pearance” is made. See Tex. Code Crim. Proc. Ann., Art. 1.051( j) (Vernon
Supp. 2007). See also Brief for Texas Association of Counties et al. as
Amici Curiae 13 (asserting that Rothgery “was statutorily entitled to the
appointment of counsel within three days after having requested it”).

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probable cause affidavit at Rothgery’s appearance had any
power to commit the state to prosecute without the knowl
edge or involvement of a prosecutor,” 491 F. 3d, at 297.
We granted certiorari, 552 U. S. 1061 (2007), and now va
cate and remand.
II
The Sixth Amendment right of the “accused” to assistance
of counsel in “all criminal prosecutions” 8 is limited by its
terms: “it does not attach until a prosecution is commenced.”
McNeil v. Wisconsin, 501 U. S. 171, 175 (1991); see also
Moran v. Burbine, 475 U. S. 412, 430 (1986). We have, for
purposes of the right to counsel, pegged commencement to
“ ‘the initiation of adversary judicial criminal proceedings—
whether by way of formal charge, preliminary hearing, in
dictment, information, or arraignment,’ ” United States v.
Gouveia, 467 U. S. 180, 188 (1984) (quoting Kirby v. Illinois,
406 U. S. 682, 689 (1972) (plurality opinion)). The rule is not
“mere formalism,” but a recognition of the point at which
“the government has committed itself to prosecute,” “the ad
verse positions of government and defendant have solidi
fied,” and the accused “finds himself faced with the prosecu
torial forces of organized society, and immersed in the
intricacies of substantive and procedural criminal law.”
Kirby, supra, at 689. The issue is whether Texas’s article
15.17 hearing marks that point, with the consequent state
obligation to appoint counsel within a reasonable time once
a request for assistance is made.
A
When the Court of Appeals said no, because no prosecutor
was aware of Rothgery’s article 15.17 hearing or involved in
it, the court effectively focused not on the start of adversar
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.”

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ial judicial proceedings, but on the activities and knowledge
of a particular state official who was presumably otherwise
occupied. This was error.
As the Court of Appeals recognized, see 491 F. 3d, at 298,
we have twice held that the right to counsel attaches at the
initial appearance before a judicial officer, see Jackson, 475
U. S., at 629, n. 3; Brewer, 430 U. S., at 399. This first time
before a court, also known as the “ ‘preliminary arraign
ment’ ” or “ ‘arraignment on the complaint,’ ” see 1 W. La-
Fave, J. Israel, N. King, & O. Kerr, Criminal Procedure
§ 1.4(g), p. 135 (3d ed. 2007), is generally the hearing at which
“the magistrate informs the defendant of the charge in the
complaint, and of various rights in further proceedings,” and
“determine[s] the conditions for pretrial release,” ibid. Tex
as’s article 15.17 hearing is an initial appearance: Rothgery
was taken before a magistrate, informed of the formal accu
sation against him, and sent to jail until he posted bail. See
supra, at 195–196.9 Brewer and Jackson control.
The Brewer defendant surrendered to the police after a
warrant was out for his arrest on a charge of abduction. He
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 acknowledged (albeit in considering the separate
question whether the complaint was a “formal charge”) that the constitu
tional significance of judicial proceedings cannot be allowed to founder on
the vagaries of state criminal law, lest the attachment rule be rendered
utterly “vague and unpredictable.” Virginia v. Moore, 553 U. S. 164, 175
(2008). 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 ‘complaint’
or its functional equivalent under Texas case law and Article 15.04 of the
Texas Code of Criminal Procedures—a question to which the answer is
itself uncertain. Instead, we must look to the specific circumstances of
this case and the nature of the affidavit filed at Rothgery’s appearance
before the magistrate” (footnote omitted)). What counts is that the com
plaint filed with the magistrate accused Rothgery of committing a particu
lar crime and prompted the judicial officer to take legal action in response
(here, to set the terms of bail and order the defendant locked up).

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was then “arraigned before a judge . . . on the outstanding
arrest warrant,” and at the arraignment, “[t]he judge advised
him of his Miranda [v. Arizona, 384 U. S. 436 (1966),] rights
and committed him to jail.” Brewer, 430 U. S., at 391.
After this preliminary arraignment, and before an indict
ment on the abduction charge had been handed up, police
elicited incriminating admissions that ultimately led to an
indictment for first-degree murder. Because neither of the
defendant’s lawyers had been present when the statements
were obtained, the Court found it “clear” that the defendant
“was deprived of . . . the right to the assistance of counsel.”
Id., at 397–398. In plain terms, the Court said that “[t]here
can be no doubt in the present case that judicial proceedings
had been initiated” before the defendant made the incrimi
nating statements. Id., at 399. Although it noted that the
State had conceded the issue, the Court nevertheless held
that the defendant’s right had clearly attached for the reason
that “[a] warrant had been issued for his arrest, he had been
arraigned on that warrant before a judge in a . . . courtroom,
and he had been committed by the court to confinement in
jail.” Ibid.10
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 230 (opinion
of Thomas, J.) (quoting Texas v. Cobb, 532 U. S. 162, 164 (2001)), i. e., that
it does not “exten[d] to crimes that are ‘factually related’ to those that
have actually been charged,” id., at 167. It is true that Brewer appears
to have assumed that attachment of the right with respect to the abduc
tion charge should prompt attachment for the murder charge as well.
But the accuracy of the dissent’s assertion ends there, for nothing in Cobb’s
conclusion that the right is offense specific casts doubt on Brewer’s sepa
rate, 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 230–231, a more general disapproval of our opinion in Brewer.
While Brewer failed even to acknowledge the issue of offense specificity,
it spoke clearly and forcefully about attachment. Cobb merely declined
to follow Brewer’s unmentioned assumption, and thus it lends no support
to the dissent’s claim that we should ignore what Brewer explicitly said.

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In Jackson, the Court was asked to revisit the question
whether the right to counsel attaches at the initial appear
ance, and we had no more trouble answering it the second
time around. Jackson was actually two consolidated cases,
and although the State conceded that respondent Jackson’s
arraignment “represented the initiation of formal legal pro
ceedings,” 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 fel
ony, after arrest, must be brought before a Magistrate or
District Court Judge without unnecessary delay for his ini
tial arraignment.” Brief for Petitioner in Michigan v. Bla
del, O. T. 1985, No. 84–1539, p. 24. The State noted that
“[w]hile [Bladel] had been arraigned . . . , there is also a
second arraignment in Michigan procedure . . . , at which
time defendant has his first opportunity to enter a plea in a
court with jurisdiction to render a final decision in a felony
case.” Id., at 25. The State contended that only the latter
proceeding, the “arraignment on the information or indict
ment,” Y. Kamisar, W. LaFave, J. Israel, & N. King, Modern
Criminal Procedure 28 (9th ed. 1999) (emphasis deleted),
should trigger the Sixth Amendment right.11 “The defend
11 The State continued to press this contention at oral argument. See
Tr. of Oral Arg. in Michigan v. Jackson, O. T. 1985, No. 84–1531 etc., p. 4
(“[T]he Michigan Supreme Court held that if a defendant, while at his
initial appearance before a magistrate who has no jurisdiction to accept a
final plea in the case, whose only job is ministerial, in other words to
advise a defendant of the charge against him, set bond if bond is appro
priate, and to advise him of his right to counsel and to get the administra
tive process going if he’s indigent, the Michigan Supreme Court said if
the defendant asked for appointed counsel at that stage, the police are
forevermore precluded from initiating interrogation of that defendant”);
id., at 8 (“First of all, as a practical matter, at least in our courts, the
police are rarely present for arraignment, for this type of an arraignment,
for an initial appearance, I guess we should use the terminology. . . . The
prosecutor is not there for initial appearance. We have people brought
through a tunnel. A court officer picks them up. They take them down
and the judge goes through this procedure. . . . There is typically nobody
from our side, if you will, there to see what’s going on”).

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ant’s rights,” the State insisted, “are fully protected in the
context of custodial interrogation between initial arraign
ment and preliminary examination by the Fifth Amendment
right to counsel” and by the preliminary examination itself.12
See Bladel Brief, supra, at 26.
We flatly rejected the distinction between initial arraign
ment and arraignment on the indictment, the State’s argu
ment being “untenable” in light of the “clear language in our
decisions about the significance of arraignment.” Jackson,
supra, at 629, n. 3. The conclusion was driven by the same
considerations the Court had endorsed in Brewer: by the
time a defendant is brought before a judicial officer, is in
formed 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 adversar
ial. 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 ar
raignment on an indictment).13 See Coleman v. Alabama,
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 preliminary hearing, which in Texas is called an “examining
trial,” at the article 15.17 hearing. See Tex. Code Crim. Proc. Ann., Art.
15.17(a). The examining trial in Texas is optional only, and the defendant
must affirmatively request it. See Reply Brief for Petitioner 25.
13 The County, in its brief to this Court, suggests that although Brewer
and Jackson spoke of attachment at the initial appearance, the cases might
actually have turned on some unmentioned fact. As to Brewer, the
County speculates that an information might have been filed before the
defendant’s initial appearance. See Brief for Respondent 34–36. But as
Rothgery points out, the initial appearance in Brewer was made in munici
pal court, and a felony information could not have been filed there. See
Reply Brief for Petitioner 11. As to Jackson, the County suggests that
the Court might have viewed Michigan’s initial arraignment as a signifi
cant proceeding only because the defendant could make a statement at
that hearing, and because respondent Bladel did in fact purport to enter

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399 U. S. 1, 8 (1970) (plurality opinion) (right to counsel ap
plies at preindictment preliminary hearing at which the “sole
purposes . . . are to determine whether there is sufficient
evidence against the accused to warrant presenting his case
to the grand jury, and, if so, to fix bail if the offense is bail
able”); cf. Owen v. State, 596 So. 2d 985, 989, n. 7 (Fla. 1992)
(“The term ‘arraign’ simply means to be called before a court
officer and charged with a crime”).
B
Our latest look at the significance of the initial appearance
was McNeil, 501 U. S. 171, which is no help to the County.
In McNeil, the State had conceded that the right to counsel
attached at the first appearance before a county court com
missioner, who set bail and scheduled a preliminary examina
tion. See id., at 173; see also id., at 175 (“It is undisputed,
and we accept for purposes of the present case, that at the
time petitioner provided the incriminating statements at
issue, his Sixth Amendment right had attached . . . ”). But
we did more than just accept the concession; we went on to
reaffirm that “[t]he Sixth Amendment right to counsel at
taches at the first formal proceeding against an accused,”
and observed that “in most States, at least with respect
to serious offenses, free counsel is made available at that
time . . . .” Id., at 180–181.
That was 17 years ago, the same is true today, and the
overwhelming consensus practice conforms to the rule that
the first formal proceeding is the point of attachment. We
are advised without contradiction that not only the Federal
Government, including the District of Columbia, but 43
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 Jack
son’s sweeping rejection of the State’s claims. It is further undermined
by the fact that the magistrate 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.

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States take the first step toward appointing counsel “before,
at, or just after initial appearance.” App. to Brief for Na
tional Association of Criminal Defense Lawyers as Amicus
Curiae 1a; see id., at 1a–7a (listing jurisdictions);14 see also
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 (West Supp. 2007), 6.1 (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 (1985), 859 (West
Supp. 2008); In re Johnson, 62 Cal. 2d 325, 329–330, 398 P. 2d 420, 422–423
(1965); (5) Connecticut: see Conn. Gen. Stat. § 54–1b (2005); Conn. Super.
Ct. Crim. Rules §§ 37–1, 37–3, 37–6 (West 2008); State v. Pierre, 277 Conn.
42, 95–96, 890 A. 2d 474, 507 (2006); (6) Delaware: see Del. Code Ann., Tit.
29, § 4604 (2003); Del. Super. Ct. Crim. Rules 5, 44 (2008); Deputy v. State,
500 A. 2d 581 (Del. 1985); (7) Florida: see Fla. Rule Crim. Proc. 3.111 (West
2007); (8) Georgia: see Ga. Code Ann. §§ 17–4–26 (2004), 17–12–23 (Supp.
2007); O’Kelley v. State, 278 Ga. 564, 604 S. E. 2d 509 (2004); (9) Hawaii:
see Haw. Rev. Stat. §§ 802–1, 803–9 (1993); (10) Idaho: see Idaho Crim.
Rules 5, 44 (Lexis 2007); Idaho Code § 19–852 (Lexis 2004); (11) Illinois:
see Ill. Comp. Stat., ch. 725, § 5/109–1 (2006); (12) Indiana: see Ind. Code
§§ 35–33–7–5, 35–33–7–6 (West 2004); (13) Iowa: see Iowa Rules Crim.
Proc. §§ 2.2, 2.28 (West 2008); (14) Kentucky: see Ky. Rule Crim. Proc. 3.05
(Lexis 2008); (15) Louisiana: see La. Code Crim. Proc. Ann., Art 230.1
(West Supp. 2008); (16) Maine: see Me. Rule Crim. Proc. 5C (West 2007);
(17) Maryland: see Md. Ann. Code, Art. 27A, § 4 (Lexis Supp. 2007); Md.
Rule 4–214 (Lexis 2008); McCarter v. State, 363 Md. 705, 770 A. 2d 195
(2001); (18) Massachusetts: see Mass. Rule Crim. Proc. 7 (West 2006); (19)
Michigan: see Mich. Rule 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. 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);

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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 ac
cused’s initial appearance before a judicial officer”). And
even in the remaining seven States (Alabama, Colorado, Kan
sas, Oklahoma, South Carolina, Texas, and Virginia) the prac
tice is not free of ambiguity. See App. to Brief for National
Association of Criminal Defense Lawyers as Amicus Curiae
5a–7a (suggesting that the practice in Alabama, Kansas,
South Carolina, and Virginia might actually be consistent
with the majority approach); see also n. 7, supra. In any
event, to the extent these States have been denying ap
pointed counsel on the heels of the first appearance, they are
a distinct minority.
C
The only question is whether there may be some arguable
justification for the minority practice. Neither the Court of
Appeals in its opinion, nor the County in its briefing to us,
has offered an acceptable one.
1
The Court of Appeals thought Brewer and Jackson could
be distinguished on the ground that “neither case addressed
the issue of prosecutorial involvement,” and the cases were
thus “neutral on the point,” 491 F. 3d, at 298. With Brewer
and Jackson distinguished, the court then found itself bound
(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) Tennes
see: 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).

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206 ROTHGERY v. GILLESPIE COUNTY
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by Circuit precedent that “ ‘an adversary criminal proceed
ing has not begun in a case where the prosecution officers
are unaware of either the charges or the arrest.’ ” 491 F. 3d,
at 297 (quoting McGee v. Estelle, 625 F. 3d 1206, 1208 (CA5
1980)). Under this standard of prosecutorial awareness, at
tachment 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 prose
cutor’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 unwork
able and impossible to administer,” Escobedo v. Illinois, 378
U. S. 478, 496 (1964) (White, J., dissenting), guaranteed to
bog the courts down in prying enquiries into the communica
tion 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 prac
tical effect of resting attachment on such absurd distinctions
as the day of the month an arrest is made, see Brief for Bren
nan Center of Justice et al. as Amici Curiae 10 (explaining
that “jails may be required to report their arrestees to
county prosecutor offices on particular days” (citing Tex.
Code Crim. Proc. Ann., Art. 2.19 (Vernon 2005))); or “the
sophistication, or lack thereof, of a jurisdiction’s computer
intake system,” Brief for Brennan Center, supra, at 11;
see also id., at 10–12 (noting that only “[s]ome Texas counties
. . . have computer systems that provide arrest and deten
tion information simultaneously to prosecutors, law enforce
ment officers, jail personnel, and clerks. Prosecutors in
these jurisdictions use the systems to pre-screen cases early
in the process before an initial appearance” (citing D. Car
michael, M. Gilbert, & M. Voloudakis, Texas A&M U., Public

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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 pros
ecute.” Kirby, 406 U. S., at 689 (plurality opinion). The
Court of Appeals reasoned that because “the decision not to
prosecute is the quintessential function of a prosecutor”
under Texas law, 491 F. 3d, at 297 (internal quotation marks
omitted), the State could not commit itself to prosecution
until the prosecutor signaled that it had.
But what counts as a commitment to prosecute is an issue
of federal law unaffected by allocations of power among state
officials under a State’s law, cf. Moran, 475 U. S., at 429, n. 3
(“[T]he type of circumstances that would give rise to the
right would certainly have a federal definition”), and under
the federal standard, an accusation filed with a judicial offi
cer is sufficiently formal, and the government’s commitment
to prosecute it sufficiently concrete, when the accusation
prompts arraignment and restrictions on the accused’s lib
erty to facilitate the prosecution, see Jackson, 475 U. S., at
629, n. 3; Brewer, 430 U. S., at 399; Kirby, supra, at 689 (plu
rality opinion); 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 accusa
tion that he is a criminal. Kirby, supra, at 689 (plurality
opinion). 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 Constitu

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208 ROTHGERY v. GILLESPIE COUNTY
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tional Premises Underlying the Law of Confessions, 17 Am.
Crim. L. Rev. 1, 31 (1979) (“[I]t would defy common sense to
say that a criminal prosecution has not commenced against
a defendant who, perhaps incarcerated and unable to afford
judicially imposed bail, awaits preliminary examination on
the authority of a charging document filed by the prosecutor,
less typically by the police, and approved by a court of law”
(internal quotation marks omitted)). All of this is equally
true whether the machinery of prosecution was turned on by
the local police or the state attorney general. In this case,
for example, Rothgery alleges that after the initial appear
ance, he was “unable to find any employment for wages” be
cause “all of the potential employers he contacted knew or
learned of the criminal charge pending against him.” Origi
nal Complaint in No. 1:04–CV–00456–LY (WD Tex., July 15,
2004), p. 5. One may assume that those potential employers
would still have declined to make job offers if advised that
the county prosecutor had not filed the complaint.
2
The County resists this logic with the argument that in
considering the significance of the initial appearance, we
must ignore prejudice to a defendant’s pretrial liberty, rea
soning that it is the concern, not of the right to counsel, but
of the speedy-trial right and the Fourth Amendment. See
Brief for Respondent 47–51. And it cites Gouveia, 467 U. S.
180, in support of its contention. See Brief for Respondent
49; see also Brief for State of 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, suspected
of murder, who had been placed in an administrative deten
tion unit and denied counsel up until an indictment was filed.
Although no formal judicial proceedings had taken place
prior to the indictment, see 467 U. S., at 185, the defendants

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argued that their administrative detention should be treated
as an accusation for purposes of the right to counsel because
the Government was actively investigating the crimes. We
recognized that “because an inmate suspected of a crime is
already in prison, the prosecution may have little incentive
promptly to bring formal charges against him, and that the
resulting preindictment delay may be particularly prejudi
cial to the inmate,” id., at 192, but we noted that statutes of
limitation and protections of the Fifth Amendment guarded
against delay, and that there was no basis for “depart[ing]
from our traditional interpretation of the Sixth Amendment
right to counsel in order to provide additional protections for
[the inmates],” ibid.
Gouveia’s holding that the Sixth Amendment right to
counsel had not attached has no application here. For one
thing, Gouveia does not affect the conclusion we reaffirmed
two years later in Jackson, that bringing a defendant before
a court for initial appearance signals a sufficient commitment
to prosecute and marks the start of adversary judicial pro
ceedings. (Indeed, Jackson refutes the County’s argument
that Fifth Amendment protections at the early stage obviate
attachment of the Sixth Amendment right at initial appear
ance. See supra, at 201–202.) And since we are not asked
to extend the right to counsel to a point earlier than formal
judicial proceedings (as in Gouveia), but to defer it to those
proceedings in which a prosecutor is involved, Gouveia does
not speak to the question before us.
The County also tries to downplay the significance of the
initial appearance by saying that an attachment rule unquali
fied by prosecutorial involvement would lead to the conclu
sion “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

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210 ROTHGERY v. GILLESPIE COUNTY
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option to change its official mind later. The State may re
think its commitment at any point: it may choose not to seek
indictment in a felony case, say, or the prosecutor may enter
nolle prosequi after the case gets to the jury room. But
without a change of position, a defendant subject to accusa
tion after initial appearance is headed for trial and needs to
get a lawyer working, whether to attempt to avoid that trial
or to be ready with a defense when the trial date arrives.
3
A third tack on the County’s part, slightly different from
the one taken by the Fifth Circuit, gets it no further. The
County stipulates that “the properly formulated test is
not . . . merely whether prosecutors have had any involve
ment 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 de
scribed: first (expansively) as “the filing of formal charges . . .
by information, indictment or formal complaint, or the hold
ing of an adversarial preliminary hearing to determine prob
able cause to file such charges,” ibid. (citing Kirby, 406 U. S.,
at 689 (plurality opinion)); then (restrictively) as a court
appearance following “arrest . . . on an indictment or infor
mation,” Brief for Respondent 32. Either version, in any
event, runs up against Brewer and Jackson: an initial appear
ance following a charge signifies a sufficient commitment
to prosecute regardless of a prosecutor’s participation, in
dictment, 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

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work for determining attachment”). And, according to the
County, our cases (Brewer and Jackson aside) actually estab
lish a “general rule that the right to counsel attaches at the
point that [what the County calls] formal charges are filed,”
Brief for Respondent 19, with exceptions allowed only in the
case of “a very limited set of specific preindictment situa
tions,” id., at 23. The County suggests that the latter cate
gory should be limited to those appearances at which the
aid of counsel is urgent and “ ‘the dangers to the accused of
proceeding without counsel’ ” are great. Id., at 28 (quoting
Patterson v. Illinois, 487 U. S. 285, 298 (1988)). Texas’s arti
cle 15.17 hearing should not count as one of those situations,
the County says, because it is not of critical significance,
since it “allows no presentation of witness testimony and
provides no opportunity to expose weaknesses in the govern
ment’s evidence, create a basis for later impeachment, or
even engage in basic discovery.” Brief for Respondent 29.
We think the County is wrong both about the clarity of
our cases and the substance that we find clear. Certainly it
is true that the Court in Brewer and Jackson saw no need
for lengthy disquisitions on the significance of the initial
appearance, but that was because it found the 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 Jack
son 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 at
tachment question (whether formal judicial proceedings have
begun) with the distinct “critical stage” question (whether
counsel must be present at a postattachment proceeding un
less 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

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212 ROTHGERY v. GILLESPIE COUNTY
Opinion of the Court
and Jackson. Once attachment occurs, the accused at least15
is entitled to the presence of appointed counsel during any
“critical stage” of the postattachment proceedings; what
makes a stage critical is what shows the need for counsel’s
presence.16 Thus, counsel must be appointed within a rea
sonable time after attachment to allow for adequate repre
sentation at any critical stage before trial, as well as at
trial itself.
The County thus makes an analytical mistake in its as
sumption that attachment necessarily requires the occur
rence or imminence of a critical stage. See Brief for Re
spondent 28– 30. On the contrary, it is irrelevant to
attachment that the presence of counsel at an article 15.17
hearing, say, may not be critical, just as it is irrelevant that
counsel’s presence may not be critical when a prosecutor
walks over to the trial court to file an information. As we
said in Jackson, “[t]he question whether arraignment signals
the initiation of adversary judicial proceedings . . . is distinct
from the question whether the arraignment itself is a critical
stage requiring the presence of counsel.” 475 U. S., at 630,
n. 3. Texas’s article 15.17 hearing plainly signals attach
ment, even if it is not itself a critical stage.17
15 We do not here purport to set out the scope of an individual’s post
attachment right to the presence of counsel. It is enough for present
purposes to highlight that the enquiry into that right is a different one
from the attachment analysis.
16 The cases have defined critical stages as proceedings between an indi
vidual and agents of the State (whether “formal or informal, in court or
out,” see United States v. Wade, 388 U. S. 218, 226 (1967)) that amount to
“trial-like confrontations,” at which counsel would help the accused “in
coping with legal problems or . . . meeting his adversary,” United States
v. Ash, 413 U. S. 300, 312–313 (1973); see also Massiah v. United States,
377 U. S. 201 (1964).
17 The dissent likewise anticipates an issue distinct from attachment
when it claims Rothgery has suffered no harm the Sixth Amendment rec
ognizes. Post, at 235. 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.

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Alito, J., concurring
III
Our holding is narrow. We do not decide whether the 6
month delay in appointment of counsel resulted in prejudice
to Rothgery’s Sixth Amendment rights, and have no occasion
to consider what standards should apply in deciding this.
We merely reaffirm what we have held before and what an
overwhelming majority of American jurisdictions under
stand in practice: a criminal defendant’s initial appearance
before a judicial officer, where he learns the charge against
him and his liberty is subject to restriction, marks the start
of adversary judicial proceedings that trigger attachment of
the Sixth Amendment right to counsel. Because the Fifth
Circuit came to a different conclusion on this threshold issue,
its judgment is vacated, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
Chief Justice Roberts, with whom Justice Scalia
joins, concurring.
Justice Thomas’s analysis of the present issue is compel
ling, but I believe the result here is controlled by Brewer
v. Williams, 430 U. S. 387 (1977), and Michigan v. Jackson,
475 U. S. 625 (1986). A sufficient case has not been made
for revisiting those precedents, and accordingly I join the
Court’s opinion.
I also join Justice Alito’s concurrence, which correctly
distinguishes between the time the right to counsel at
taches and the circumstances under which counsel must be
provided.
Justice Alito, with whom The Chief Justice and Jus
tice Scalia join, concurring.
I join the Court’s opinion because I do not understand it
to hold that a defendant is entitled to the assistance of
appointed counsel as soon as his Sixth Amendment right
attaches. As I interpret our precedents, the term “attach

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214 ROTHGERY v. GILLESPIE COUNTY
Alito, J., concurring
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 Amendment’s
substantive guarantee of “the Assistance of Counsel for
[the] defence.”
The Sixth Amendment provides in pertinent part that
“[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence.”
The Amendment thus defines the scope of the right to coun
sel in three ways: It provides who may assert the right (“the
accused”); when the right may be asserted (“[i]n all criminal
prosecutions”); and what the right guarantees (“the right . . .
to have the Assistance of Counsel for his defence”).
It is in the context of interpreting the Amendment’s an
swer to the second of these questions—when the right may
be asserted—that we have spoken of the right “attaching.”
In Kirby v. Illinois, 406 U. S. 682, 688 (1972), a plurality of
the Court explained that “a person’s Sixth and Fourteenth
Amendment right to counsel attaches only at or after the
time that adversary judicial proceedings have been initiated
against him.” A majority of the Court elaborated on that
explanation in Moore v. Illinois, 434 U. S. 220 (1977):
“In Kirby v. Illinois, the plurality opinion made clear
that the right to counsel announced in Wade and Gilbert
attaches only to corporeal identifications conducted at or
after the initiation of adversary judicial criminal pro
ceedings—whether by way of formal charge, prelimi
nary 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 plural
ity held that the prosecution’s evidence of a robbery vic
tim’s one-on-one stationhouse identification of an un

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Alito, J., concurring
counseled suspect shortly after the suspect’s arrest was
admissible because adversary judicial criminal proceed
ings had not yet been initiated.” Id., at 226–227 (some
internal quotation marks and citations omitted).
When we wrote in Kirby and Moore that the Sixth Amend
ment 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); McNeil v. Wisconsin,
501 U. S. 171, 175 (1991); Michigan v. Harvey, 494 U. S. 344,
353 (1990); Satterwhite v. Texas, 486 U. S. 249, 254–255
(1988); Michigan v. Jackson, 475 U. S. 625, 629, and n. 3
(1986); Moran v. Burbine, 475 U. S. 412, 428 (1986); United
States v. Gouveia, 467 U. S. 180, 188 (1984); Edwards v. Ari
zona, 451 U. S. 477, 480, n. 7 (1981); Doggett v. United States,
505 U. S. 647, 663, n. 2 (1992) (Thomas, J., dissenting); Patter
son v. Illinois, 487 U. S. 285, 303–304 (1988) (Stevens, J.,
dissenting); United States v. Ash, 413 U. S. 300, 322 (1973)
(Stewart, J., concurring in judgment). But see Estelle v.
Smith, 451 U. S. 454, 469 (1981) (“[W]e have held that the
right to counsel granted by the Sixth Amendment means
that a person is entitled to the help of a lawyer at or after the
time that adversary judicial proceedings have been initiated
against him . . . ” (internal quotation marks omitted));
Brewer v. Williams, 430 U. S. 387, 398 (1977) (“[T]he right
to counsel granted by the Sixth and Fourteenth Amend
ments means at least that a person is entitled to the help of
a lawyer at or after the time that judicial proceedings have
been initiated against him . . . ”).
Because pretrial criminal procedures vary substantially
from jurisdiction to jurisdiction, there is room for disagree
ment about when a “prosecution” begins for Sixth Amend
ment purposes. As the Court notes, however, we have pre
viously held that “arraignments” that were functionally
indistinguishable from the Texas magistration marked the
point at which the Sixth Amendment right to counsel

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“attached. ” See ante, at 198–199 (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 assist
ance of counsel in the wake of a Texas magistration is part of
the substantive guarantee of the Sixth Amendment. That
question lies beyond our reach, petitioner having never
sought our review of it. See Pet. for Cert. i (inviting us to
decide whether the Fifth Circuit erred in concluding “that
adversary judicial proceedings . . . had not commenced, and
petitioner’s Sixth Amendment rights had not attached”). To
recall the framework laid out earlier, we have been asked
to address only the when question, not the what question.
Whereas the temporal scope of the right is defined by the
words “[i]n all criminal prosecutions,” the right’s substantive
guarantee flows from a different textual font: the words “As
sistance of Counsel for his defence.”
In interpreting this latter phrase, we have held that “de
fence” 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 pro
tect the accused during trial-type confrontations with the
prosecutor . . . ”); Ash, supra, at 309 (“[T]he core purpose
of the counsel guarantee was to assure ‘Assistance’ at
trial . . . ”). We have thus rejected the argument that the
Sixth Amendment entitles the criminal defendant to the as
sistance of appointed counsel at a probable-cause hearing.
See Gerstein v. Pugh, 420 U. S. 103, 122–123 (1975) (observ
ing that the Fourth Amendment hearing “is addressed only
to pretrial custody” and has an insubstantial effect on the
defendant’s trial rights). More generally, we have rejected
the notion that the right to counsel entitles the defendant

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to a “preindictment private investigator.” Gouveia, supra,
at 191.
At the same time, we have recognized that certain pretrial
events may so prejudice the outcome of the defendant’s
prosecution that, as a practical matter, the defendant must
be represented at those events in order to enjoy genuinely
effective assistance at trial. See, e. g., Ash, supra, at 309–
310; United States v. Wade, 388 U. S. 218, 226 (1967). Thus,
we have held that an indigent defendant is entitled to the
assistance of appointed counsel at a preliminary hearing if
“substantial prejudice . . . inheres in the . . . confrontation”
and “counsel [may] help avoid that prejudice.” Coleman v.
Alabama, 399 U. S. 1, 9 (1970) (plurality opinion) (internal
quotation marks omitted); see also White v. Maryland, 373
U. S. 59, 60 (1963) (per curiam). We have also held that the
assistance of counsel is guaranteed at a pretrial lineup, since
“the confrontation compelled by the State between the ac
cused and the victim or witnesses to a crime to elicit iden
tification 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 in
terrogation, a pretrial psychiatric exam, and certain kinds of
arraignments. See Harvey, supra, at 358, n. 4 (Stevens,
J., dissenting); Estelle, supra, at 470–471; Coleman, supra,
at 7–8 (plurality opinion).
Weaving together these strands of authority, I interpret
the Sixth Amendment to require the appointment of counsel
only after the defendant’s prosecution has begun, and then
only as necessary to guarantee the defendant effective assist
ance at trial. Cf. McNeil, supra, at 177–178 (“The pur
pose of the Sixth Amendment counsel guarantee—and hence
the purpose of invoking it—is to protec[t] the unaided layman
at critical confrontations with his expert adversary, the gov
ernment, after the adverse positions of government and de
fendant have solidified with respect to a particular alleged

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218 ROTHGERY v. GILLESPIE COUNTY
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crime” (emphasis and alteration in original; internal quota
tion 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 212 (opinion of the Court) (pointing out the “analyti
cal mistake” of assuming “that attachment necessarily re
quires the occurrence or imminence of a critical stage”).
Texas counties need only appoint counsel as far in advance
of trial, and as far in advance of any pretrial “critical stage,”
as necessary to guarantee effective assistance at trial.
Cf. ibid. (“[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 prosecu
tio[n]” within the meaning of the Sixth Amendment. Be
cause I agree with the Court’s resolution of that limited
question, I join its opinion in full.
Justice Thomas, dissenting.
The Court holds today—for the first time after plenary
consideration of the question—that a criminal prosecution
begins, and that the Sixth Amendment right to counsel
therefore attaches, when an individual who has been placed
under arrest makes an initial appearance before a magistrate
for a probable-cause determination and the setting of bail.
Because the Court’s holding is not supported by the original
meaning of the Sixth Amendment or any reasonable inter
pretation of our precedents, I respectfully dissent.
I
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have

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the Assistance of Counsel for his defence.” The text of the
Sixth Amendment thus makes clear that the right to counsel
arises only upon initiation of a “criminal prosecutio[n].” For
that reason, the Court has repeatedly stressed that the Sixth
Amendment right to counsel “does not attach until a prosecu
tion is commenced.” McNeil v. Wisconsin, 501 U. S. 171,
175 (1991); see also United States v. Gouveia, 467 U. S. 180,
188 (1984) (“[T]he literal language of the Amendment . . .
requires the existence of both a ‘criminal prosecutio[n]’ and
an ‘accused’ ”). Echoing this refrain, the Court today reiter
ates that “[t]he Sixth Amendment right of the ‘accused’ to
assistance of counsel in ‘all criminal prosecutions’ is limited
by its terms.” Ante, at 198 (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 numer
ous decisions in which the Court has construed the right to
counsel has attempted to discern the original meaning of
“criminal prosecutio[n].” I think it appropriate to examine
what a “criminal prosecutio[n]” would have been understood
to entail by those who adopted the Sixth Amendment.
A
There is no better place to begin than with Blackstone,
“whose works constituted the preeminent authority on Eng
lish 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 dis
cussion of the “regular and ordinary method of proceeding
in the courts of criminal jurisdiction.” 4 W. Blackstone,
Commentaries *289 (hereinafter Blackstone).
At the outset of his discussion, Blackstone organized the
various stages of a criminal proceeding “under twelve gen

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220 ROTHGERY v. GILLESPIE COUNTY
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eral heads, following each other in a progressive order.”
Ibid. The first six relate to pretrial events: “1. Arrest;
2. Commitment and bail; 3. Prosecution; 4. Process;
5. Arraignment, and it’s incidents; 6. Plea, and issue.” Ibid.
(emphasis added). Thus, the first significant fact is that
Blackstone did not describe the entire criminal process as a
“prosecution,” but rather listed prosecution as the third step
in a list of successive stages. For a more complete under
standing of what Blackstone meant by “prosecution,” how
ever, we must turn to chapter 23, entitled “Of the Several
Modes of Prosecution.” Id., at *301. There, Blackstone ex
plained that—after arrest and examination by a justice of the
peace to determine whether a suspect should be discharged,
committed to prison, or admitted to bail, id., at *296—the
“next step towards the punishment of offenders is their
prosecution, or the manner of their formal accusation,” id.,
at *301 (emphasis added).
Blackstone thus provides a definition of “prosecution”: the
manner of an offender’s “formal accusation.” The modifier
“formal” is significant because it distinguishes “prosecution”
from earlier stages of the process involving a different kind
of accusation: the allegation of criminal conduct necessary
to justify arrest and detention. Blackstone’s discussion of
arrest, commitment, and bail makes clear that a person could
not be arrested and detained without a “charge” or “accusa
tion,” i. e., an allegation, supported by probable cause, that
the person had committed a crime. See id., at *289–*300.
But the accusation justifying arrest and detention was
clearly preliminary to the “formal accusation” that Black
stone identified with “prosecution.” See id., at *290, *318.
By “formal accusation,” Blackstone meant, in most cases,
“indictment, the most usual and effectual means of prosecu
tion.” Id., at *302. Blackstone defined an “indictment” as
“a written accusation of one or more persons of a crime or
misdemeanor, preferred to, and presented upon oath by, a
grand jury.” Ibid. (emphasis deleted). If the grand jury

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was “satisfied of the truth of the accusation,” it endorsed
the indictment, id., at *305–*306, which was then “publicly
delivered into court,” id., at *306, “afterwards to be tried
and determined,” id., at *303, “before an officer having
power to punish the [charged] offence,” 2 T. Cunningham, A
New and Complete Law Dictionary (2d ed. 1771).
In addition to indictment, Blackstone identified two other
“methods of prosecution at the suit of the king.” 4 Black
stone *312. The first was presentment, which, like an in
dictment, 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 knowl
edge or observation” rather than from a “bill of indictment
laid before them.” 4 Blackstone *301. The second was in
formation, “the only species of proceeding at the suit of the
king, without a previous indictment or presentment by a
grand jury.” Id., at *308. After an information was filed,
it was “tried,” id., at *309, in the same way as an indictment:
“The same notice was given, the same process was issued,
the same pleas were allowed, the same trial by jury was had,
the same judgment was given by the same judges, as if the
prosecution had originally been by indictment,” id., at *310.
From the foregoing, the basic elements of a criminal
“prosecution” emerge with reasonable clarity. “Prosecu
tion,” as Blackstone used the term, referred to “instituting
a criminal suit,” id., at *309, by filing a formal charging docu
ment—an indictment, presentment, or information—upon
which the defendant was to be tried in a court with power to
punish the alleged offense. And, significantly, Blackstone’s
usage appears to have accorded with the ordinary meaning
of the term. See 2 N. Webster, An American Dictionary of
the English Language (1828) (defining “prosecution” as “[t]he
institution or commencement and continuance of a criminal
suit; the process of exhibiting formal charges against an of

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222 ROTHGERY v. GILLESPIE COUNTY
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fender before a legal tribunal, and pursuing them to final
judgment,” and noting that “[p]rosecutions may be by pre
sentment, information or indictment”).
B
With Blackstone as our guide, it is significant that the
Framers used the words “criminal prosecutions” in the Sixth
Amendment rather than some other formulation such as
“criminal proceedings” or “criminal cases.” Indeed, else
where in the Bill of Rights we find just such an alterna
tive formulation: In contrast to the Sixth Amendment, the
Fifth Amendment refers to “criminal case[s].” U. S. Const.,
Amdt. 5 (“No person . . . shall be compelled in any criminal
case to be a witness against himself ”).
In Counselman v. Hitchcock, 142 U. S. 547 (1892), the
Court indicated that the difference in phraseology was not
accidental. There the Court held that the Fifth Amend
ment right not to be compelled to be a witness against one
self “in any criminal case” could be invoked by a witness
testifying before a grand jury. The Court rejected the
argument that there could be no “criminal case” prior to in
dictment, reasoning that a “criminal case” under the Fifth
Amendment is much broader than a “criminal prosecution”
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 en
compass preindictment stages of the criminal process. In
Virginia v. Paul, 148 U. S. 107 (1893), the Court considered
Revised Statute § 643, which authorized removal to federal
court of any “ ‘criminal prosecution’ ” “ ‘commenced in any
court of a State’ ” against a federal officer. Id., at 115. The
respondent, a deputy marshal, had been arrested by Virginia
authorities on a warrant for murder and was held in county
jail awaiting his appearance before a justice of the peace
“with a view to a commitment to await the action of the

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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 “ ‘com
menced’ ” within the meaning of 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. The 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 exam
ine 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 prosecu
tion.’ ” Id., at 119. The appearance before the justice of
the peace did not qualify as a “prosecution”:
“Proceedings before a magistrate to commit a person
to jail, or to hold him to bail, in order to secure his ap
pearance to answer for a crime or offence which the
magistrate has no jurisdiction himself to try, before the
court in which he may be prosecuted and tried, are but
preliminary to the prosecution, and are no more a com
mencement 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 for
mal 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 prosecu

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224 ROTHGERY v. GILLESPIE COUNTY
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tio[n].” No formal charges had been filed. The only docu
ment submitted to the magistrate was the arresting officer’s
affidavit of probable cause. The 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, carry
ing 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 pos
session of a firearm by a felon—3rd degree felony.” Ibid.
The magistrate certified that he had examined the affidavit
and “determined that probable cause existed for the arrest
of the individual accused therein.” Id., at 34a. Later that
day, petitioner was released on bail, and did not hear from
the State again until he was indicted six months later.
The affidavit of probable cause clearly was not the type of
formal accusation Blackstone identified with the commence
ment of a criminal “prosecution.” Rather, it was the prelim
inary accusation necessary to justify arrest and detention—
stages of the criminal process that Blackstone placed before
prosecution. The affidavit was not a pleading that insti
tuted a criminal prosecution, such as an indictment, present
ment, or information; and the magistrate to whom it was
presented had no jurisdiction to try and convict petitioner
for the felony offense charged therein. See Teal v. State,
230 S. W. 3d 172, 174 (Tex. Crim. App. 2007) (“The Texas
Constitution requires that, unless waived by the defendant,
the State must obtain a grand jury indictment in a felony
case”); Tex. Code Crim. Proc. Ann., Arts. 4.05, 4.11(a) (Ver
non 2005). That is most assuredly why the magistrate in
formed petitioner that charges “will be filed” in district
court. App. to Pet. for Cert. 35a (emphasis added).
The original meaning of the Sixth Amendment, then, cuts
decisively against the Court’s conclusion that petitioner’s
right to counsel attached at his initial appearance before the
magistrate. But we are not writing on a blank slate: This

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Court has a substantial body of more recent precedent con
struing the Sixth Amendment right to counsel.
II
As the Court notes, our cases have “pegged commence
ment” of a criminal prosecution, ante, at 198, to “the initia
tion of adversary judicial criminal proceedings—whether by
way of formal charge, preliminary hearing, indictment, infor
mation, or arraignment,” Kirby v. Illinois, 406 U. S. 682, 689
(1972) (plurality opinion). The Court has repeated this for
mulation 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 estab
lished that a person’s Sixth and Fourteenth Amendment
right to counsel attaches only at or after the time
that adversary judicial proceedings have been initiated
against him. See Powell v. Alabama, supra; Johnson
v. Zerbst, 304 U. S. 458 [(1938)]; Hamilton v. Alabama,
368 U. S. 52 [(1961)]; Gideon v. Wainwright, 372 U. S.
335 [(1963)]; White v. Maryland, 373 U. S. 59 [(1963) (per
curiam)]; Massiah v. United States, 377 U. S. 201
[(1964)]; United States v. Wade, 388 U. S. 218 [(1967)];
Gilbert v. California, 388 U. S. 263 [(1967)]; Coleman v.
Alabama, 399 U. S. 1 [(1970)].
“This is not to say that a defendant in a criminal case
has a constitutional right to counsel only at the trial it
self. The Powell case makes clear that the right at
taches at the time of arraignment, and the Court has
recently held that it exists also at the time of a prelimi
nary hearing. Coleman v. Alabama, supra. But the
point is that, while members of the Court have differed

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226 ROTHGERY v. GILLESPIE COUNTY
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as to existence of the right to counsel in the contexts of
some of the above cases, all of those cases have involved
points of time at or after the initiation of adversary judi
cial criminal proceedings—whether by way of formal
charge, preliminary hearing, indictment, information, or
arraignment.” Id., at 688–689 (footnote omitted).
It is noteworthy that Kirby did not purport to announce
anything new; rather, it simply catalogued what the Court
had previously held. And the point of the plurality’s discus
sion was that the criminal process contains stages prior to
commencement of a criminal prosecution. The holding of
the case was that the right to counsel did not apply at a
station house lineup that took place “before the defendant
had been indicted or otherwise formally charged with any
criminal offense.” Id., at 684.
Kirby gave five examples of events that initiate “adversary
judicial criminal proceedings”: formal charge, preliminary
hearing, indictment, information, and arraignment. None of
these supports the result the Court reaches today. I will
apply them seriatim. No indictment or information had
been filed when petitioner appeared before the magistrate.
Nor was there any other formal charge. Although the plu
rality in Kirby did not define “formal charge,” there is no
reason to believe it would have included an affidavit of proba
ble cause in that category. None of the cases on which it
relied stood for that proposition. Indeed, all of them—with
the exception of White v. Maryland, 373 U. S. 59 (1963)
(per curiam), and Coleman v. Alabama, 399 U. S. 1 (1970)—
involved postindictment proceedings. See Powell v. Ala
bama, 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 ar
raignment); Gideon v. Wainwright, 372 U. S. 335, 337 (1963)
(trial); Massiah v. United States, 377 U. S. 201 (1964) (postin
dictment interrogation); United States v. Wade, 388 U. S. 218,

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227 Cite as: 554 U. S. 191 (2008)
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219–220 (1967) (postindictment lineup); Gilbert v. California,
388 U. S. 263, 269 (1967) (same).
Nor was petitioner’s initial appearance a preliminary hear
ing. The comparable proceeding in Texas is called an “ex
amining trial.” See ante, at 202, n. 12. More importantly,
petitioner’s initial appearance was unlike the preliminary
hearings that were held to constitute “critical stages” in
White and Coleman, because it did not involve entry of a
plea, cf. White, supra, at 60, and was nonadversarial,
cf. Coleman, supra, at 9. There was no prosecutor present,
there were no witnesses to cross-examine, there was no case
to discover, and the result of the proceeding was not to bind
petitioner over to the grand jury or the trial court.
Finally, petitioner’s initial appearance was not what Kirby
described as an “arraignment.” An arraignment, in its tra
ditional and usual sense, is a postindictment proceeding at
which the defendant enters a plea. See, e. g., W. LaFave,
J. Israel, & N. King, Criminal Procedure § 1.3(n), pp. 19–20
(4th ed. 2004); 4 Blackstone *322. Although the word “ar
raignment” is sometimes used to describe an initial appear
ance before a magistrate, see LaFave, supra, § 1.3( j), at 16,
that is not what Kirby meant when it said that the right to
counsel attaches at an “arraignment.” Rather, it meant the
traditional, postindictment arraignment where the defendant
enters a plea. This would be the most reasonable assump
tion even if there were nothing else to go on, since that is
the primary meaning of the word, especially when used
unmodified.
But there is no need to assume. Kirby purported to de
scribe 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 postin
dictment arraignments at which the defendant entered a
plea. Hamilton, supra, at 53, n. 3; Powell, 287 U. S., at 49.
And the considerations that drove the Court’s analysis in
those cases are not present here. See id., at 57 (emphasizing

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228 ROTHGERY v. GILLESPIE COUNTY
Thomas, J., dissenting
that “from the time of their arraignment until the beginning
of their trial, when consultation, thoroughgoing investigation
and preparation were vitally important, the defendants did
not have the aid of counsel”); Hamilton, supra, at 53–55 (em
phasizing that the defendant entered a plea and was required
to raise or waive certain defenses). Kirby’s inclusion of “ar
raignment” in the list of adversary judicial proceedings that
trigger the right to counsel thus provides no support for the
view that the right to counsel attaches at an initial appear
ance 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 at
taches, at an initial appearance before a magistrate. The
Court concludes, however, that two subsequent decisions—
Brewer v. Williams, 430 U. S. 387 (1977), and Michigan v.
Jackson, 475 U. S. 625 (1986)—stand for that proposition.
Those decisions, which relied almost exclusively on Kirby,
cannot bear the weight the Court puts on them.1
In Brewer, the defendant challenged his conviction for
murdering a 10-year-old girl on the ground that his Sixth
Amendment right to counsel had been violated when detec
tives elicited incriminating statements from him while trans
porting him from Davenport, Iowa, where he had been ar
rested on a warrant for abduction and “arraigned before a
judge . . . on the outstanding arrest warrant,” to Des Moines,
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 203. But in McNeil, the Court
expressed no view whatsoever on the attachment issue. Rather, it noted
that the issue was “undisputed,” and “accept[ed] for purposes of the pres
ent case, that . . . [the defendant’s] Sixth Amendment right had attached.”
501 U. S., at 175. We do not ordinarily give weight to assumptions made
in prior cases about matters that were not in dispute.

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where he was to be tried. 430 U. S., at 390–391. The prin
cipal issue was whether the defendant had waived his right
to have counsel present during police questioning when he
voluntarily engaged one of the detectives in a “wide-ranging
conversation.” Id., at 392. He subsequently agreed to lead
the detectives to the girl’s body in response to the so-called
“ ‘Christian burial speech,’ ” in which one of the detectives
told the defendant that “ ‘the parents of this little girl should
be entitled to a Christian burial for the little girl who was
snatched away from them on Christmas [E]ve and mur
dered.’ ” Id., at 392–393. Not surprisingly, the parties vig
orously 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 con
clusory observations:
“There can be no doubt in the present case that judi
cial proceedings had been initiated against Williams be
fore the start of the automobile ride from Davenport to
Des Moines. A warrant had been issued for his arrest,
he had been arraigned on that warrant before a judge
in a Davenport courtroom, and he had been committed
by the court to confinement in jail. The State does not
contend otherwise.” 430 U. S., at 399.
Brewer’s cursory treatment of the attachment issue dem
onstrates precisely why, when “an issue [is] not addressed by
the parties,” it is “imprudent of us to address it . . . with any
pretense of settling it for all time.” Metropolitan 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 ex
ample, whether it was adversarial or whether the defendant

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was required to enter a plea or raise or waive any defenses—
facts that earlier cases such as Hamilton, White, and Cole
man 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 con
sidered the difference between an arraignment on a warrant
and an arraignment at which the defendant pleads to the
indictment.
The Court finds it significant that Brewer expressed “ ‘no
doubt’ ” that the right had attached. Ante, at 211 (quoting
430 U. S., at 399). There was no need for a “lengthy disqui
sitio[n],” the Court says, because Brewer purportedly “found
the attachment issue an easy one.” Ante, at 211. What the
Court neglects to mention is that Brewer’s attachment hold
ing is indisputably no longer good law. That is because we
have subsequently held that the Sixth Amendment right to
counsel is “offense specific,” meaning that it attaches only
to those offenses for which the defendant has been formally
charged, and not to “other offenses ‘closely related factually’
to the charged offense.” Texas v. Cobb, 532 U. S. 162, 164
(2001). Because the defendant in Brewer had been ar
raigned only on the abduction warrant, there is no doubt
that, under Cobb, his right to counsel had not yet attached
with respect to the murder charges that were subsequently
brought. See 532 U. S., at 184 (Breyer, J., dissenting) (not
ing 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 im
plicit holding on the attachment question. See 532 U. S., at

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169 (“Constitutional rights are not defined by inferences
from opinions which did not address the question at issue”).
And here, as in Cobb, Brewer did not address the fact that
the arraignment on the warrant was not the same type of
arraignment at which the right to counsel had previously
been held to attach, and the parties did not argue the ques
tion. 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 coun
sel,” id., at 630. And, as in Brewer, the Court’s waiver hold
ing was vigorously disputed. See 475 U. S., at 637–642
(Rehnquist, J., dissenting); see also Cobb, supra, at 174–177
(Kennedy, J., concurring) (questioning Jackson’s vitality).
Unlike in Brewer, however, the attachment question was at
least contested in Jackson—but barely. With respect to re
spondent 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., dissent
ing), and raised it for the first time before this Court, devot
ing 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–
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

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232 ROTHGERY v. GILLESPIE COUNTY
Thomas, J., dissenting
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 Jack
son 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 examina
tion of the parties’ briefs does it become clear that the pro
ceeding was in fact an initial appearance. But Jackson did
not even acknowledge, much less “flatly rejec[t] the distinc
tion between initial arraignment and arraignment on the in
dictment.” Ante, at 202. Instead, it offered one sentence
of analysis—“In view of the clear language in our decisions
about the significance of arraignment, the State’s argument
is untenable”—followed by a string citation to four cases,
each of which quoted Kirby. 475 U. S., at 629–630, n. 3.
For emphasis, the Court italicized the words “or arraign
ment” in Kirby’s attachment test. 475 U. S., at 629, n. 3 (in
ternal 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 “ar
raignment,” the right to counsel attaches.2 That rule would
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 before a judicial officer, is informed of a for
mally 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 202. But Jackson said nothing of the sort.
Moreover, even looking behind the opinion, Jackson does not support
the result the Court reaches today. Respondent Bladel entered a “not
guilty” plea at his arraignment, see Brief for Petitioner in Michigan v.
Bladel, O. T. 1985, No. 84–1539, p. 4, and both Hamilton v. Alabama, 368
U. S. 52 (1961), and White v. Maryland, 373 U. S. 59 (1963) (per curiam),
had already held that a defendant has a right to counsel when he enters a
plea. The Court suggests that this fact is irrelevant because the magis
trate in Bladel’s case “had no jurisdiction to accept a plea of guilty to a
felony charge.” Ante, at 203, n. 13. But that distinction does not appear
in either Hamilton or White. See Hamilton, supra, at 55 (“Only the

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not govern this case because petitioner’s initial appearance
was not called an “arraignment” (the parties refer to it as
a “magistration,” Brief for Petitioner 4; Brief for Respond
ent 5). 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 ar
raignment and an arraignment on the indictment. Instead,
the Court simply cited Kirby and left it at that. In these
circumstances, I would recognize Jackson for what it was—
a cursory treatment of an issue that was not the primary
focus of the Court’s opinion. Surely Jackson’s footnote must
yield to our reasoned precedents.
And our reasoned precedents provide no support for the
conclusion that the right to counsel attaches at an initial ap
pearance before a magistrate. Kirby explained why the
right attaches “after the initiation of adversary judicial crim
inal proceedings”:
“The initiation of judicial criminal proceedings is far
from a mere formalism. It is the starting point of our
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 prosecuto
rial forces of organized society, and immersed in the in
tricacies of substantive and procedural criminal law. It
presence of counsel could have enabled this accused to know all the de
fenses available to him and to plead intelligently”); White, supra, at 60
(“[P]etitioner entered a plea before the magistrate and that plea was taken
at a time when he had no counsel”). Thus, the most that Jackson can
possibly be made to stand for is that the right to counsel attaches at an
initial appearance where the defendant enters a plea. And that rule
would not govern this case because petitioner did not enter a plea at his
initial appearance.

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234 ROTHGERY v. GILLESPIE COUNTY
Thomas, J., dissenting
is this point, therefore, that marks the commencement
of the ‘criminal prosecutions’ to which alone the explicit
guarantees of the Sixth Amendment are applicable.”
406 U. S., at 689–690 (plurality opinion).
None of these defining characteristics of a “criminal prose
cution” applies to petitioner’s initial appearance before the
magistrate. The initial appearance was not an “adversary”
proceeding, and petitioner was not “faced with the prosecu
torial forces of organized society.” Instead, he stood in front
of a “ ‘little glass window,’ ” filled out various forms, and was
read his Miranda rights. Brief for Respondent 5. The
State had not committed itself to prosecute—only a prosecu
tor may file felony charges in Texas, see Tex. Code Crim.
Proc. Ann., Arts. 2.01, 2.02 (Vernon 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 prosecuto
rial 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 at
taches at an initial appearance is untethered from any inter
est that we have heretofore associated with the right to
counsel. The Court has repeatedly emphasized that “[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.” John
son, 304 U. S., at 465. The “core purpose” of the right, the
Court has said, is to “assure ‘Assistance’ at trial, when the
accused [is] confronted with both the intricacies of the law
and the advocacy of the public prosecutor.” United States
v. Ash, 413 U. S. 300, 309 (1973). The Court has extended

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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 convincing the prosecutor that petitioner was
not guilty of the crime alleged. But the Sixth Amendment
protects against the risk of erroneous conviction, not the
risk of unwarranted prosecution. See Gouveia, 467 U. S., at
191 (rejecting the notion that the “purpose of the right to
counsel is to provide a defendant with a preindictment pri
vate investigator”).
Petitioner argues that the right to counsel is implicated
here because restrictions were imposed on his liberty when
he was required to post bail. But we have never suggested
that the accused’s right to the assistance of counsel “for his
defence” entails a right to use counsel as a sword to contest
pretrial detention. To the contrary, we have flatly rejected
that notion, reasoning that a defendant’s liberty interests are
protected by other constitutional guarantees. See id., at
190 (“While the right to counsel exists to protect the accused
during trial-type confrontations with the prosecutor, the
speedy trial right exists primarily to protect an individual’s
liberty interest,” including the interest in reducing the “ ‘im
pairment of liberty imposed on an accused while released
on bail’ ”).
IV
In sum, neither the original meaning of the Sixth Amend
ment right to counsel nor our precedents interpreting the

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236 ROTHGERY v. GILLESPIE COUNTY
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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.