111.1Right to Counsel
- Defendant has a constitutional and statutory right to counsel, which applies at many stages of a criminal prosecution.
- An indigent defendant is entitled to receive appointed counsel, but that right may be waived or forfeited.
- Violation of defendant’s right to counsel may result in suppression of evidence, a vacated conviction, or other consequences.
The Sixth Amendment to the United States Constitution guarantees that a person charged with a serious crime shall have the right to legal counsel. Gideon v. Wainwright, 372 U.S. 335 (1963). The right to representation in certain cases is applicable to the states by the Fourteenth Amendment. Argersinger v. Hamlin, 407 U.S. 25 (1972). When a person is entitled to counsel, but cannot afford to hire an attorney, one must be provided by the court. Id. The North Carolina Constitution also guarantees the right to counsel, although it is not clear whether those provisions extend beyond federal constitutional and state statutory rights. See N.C. CONST. Art. I, Sec. 19 (“No person shall be . . . deprived of his life, liberty, or property, but by the law of the land.”); Art. I, Sec. 23 (“In all criminal prosecutions, every person charged with crime has the right . . . to have counsel for defense . . . .”). The right to counsel in a criminal case encompasses various proceedings. The Sixth Amendment right to counsel attaches once adversarial judicial proceedings have commenced and applies to any critical stage thereafter. Other constitutional provisions and state statutes afford the defendant the right to counsel at additional proceedings, both before and after the initiation of judicial proceedings.
The Sixth Amendment right to counsel attaches upon commencement of adversarial judicial proceedings against the defendant, “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 689 (1972); accord State v. Tucker, 331 N.C. 12, 33 (1992). Generally, when a defendant is arrested for a felony or misdemeanor (with or without a warrant), the Sixth Amendment right to counsel attaches at the defendant’s initial appearance before a judicial official—in North Carolina, usually before a magistrate under G.S. 15A-511. See Rothgery v. Gillespie County, 554 U.S. 191, 213 (2008) (so holding because “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”).
G.S. 7A-451(b) provides that the right to counsel attaches immediately after arrest, and it lists certain proceedings at which counsel must be provided. The initial appearance itself is not a critical stage of the proceedings at which a defendant must have counsel. Rothgery, 554 U.S. at 212; see also State v. Detter, 298 N.C. 604 (1979) (first appearance before judge--at which courts formerly held that right to counsel attached--is not critical stage). The state, however, must afford counsel to the defendant within a reasonable time after the initial appearance to allow for adequate representation at any critical stage thereafter. Rothgery, 554 U.S. at 212. The North Carolina courts have interpreted the statute with respect to some of the listed proceedings, such as lineups, as not affording a defendant a greater right to counsel than provided by the Sixth Amendment. See State v. Henderson, 285 N.C. 1 (1974), vacated on other grounds, 428 U.S. 902 (1976). However, other statutes do provide a defendant with a statutory right to counsel at certain proceedings before attachment of the Sixth Amendment right to counsel. For more information, see the related entry on Right to Counsel – When the Right Applies. If the defendant is indicted before being arrested, the Sixth Amendment right to counsel attaches on return of the indictment. See Kirby, 406 U.S. 682. Rothgery did not alter this principle.
Defendants also have a right under the Fifth and Fourteenth Amendments to the U.S. Constitution to have counsel present during a custodial interrogation. See Miranda v. Arizona, 384 U.S. 436 (1966). Once judicial proceedings have begun and the defendant invokes his or her right to counsel, the Sixth Amendment also protects the defendant from interrogation regarding the offense with which the defendant is charged without counsel present.