7.2.1 Stage of the Proceeding
As noted previously,22 the Supreme Court held that a criminal defendant's Sixth Amendment right to counsel attaches to all critical stages after the initiation of the criminal prosecution.23 One such "critical stage" is a lineup conducted without the presence of counsel after the defendant had been indicted. The right to counsel was held to apply because without the assistance of counsel, a defendant could not re-create the circumstances of the lineup to challenge the credibility of the identification.24
The Supreme Court, however, refused to apply the right to counsel to lineups occurring before an indictment or formal charge.25 The Court determined that the right to counsel under the Sixth Amendment could be extended only to proceedings occurring after the "initiation of judicial criminal proceedings. . . . [I]t is only then that the government has committed itself to prosecution]. . . ."26
The federal rule is fairly clear, though on one key point various state and federal courts are in conflict. The issue is whether the issuance of an arrest warrant by a magistrate is the beginning of the criminal prosecution to which...
