Rothgery v. Gillespie County

(Slip Opinion)              OCTOBER TERM, 2007                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

200 U. S. 321, 337

.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

         ROTHGERY v. GILLESPIE COUNTY, TEXAS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                  THE FIFTH CIRCUIT

      No. 07–440.      Argued March 17, 2008—Decided June 23, 2008
Texas police relied on erroneous information that petitioner Rothgery
  had a previous felony conviction to arrest him as a felon in possession
  of a firearm. The officers brought Rothgery before a magistrate
  judge, as required by state law, for a so-called “article 15.17 hearing,”
  at which the Fourth Amendment probable-cause determination was
  made, bail was set, and Rothgery was formally apprised of the accu-
  sation against him. After the hearing, the magistrate judge commit-
  ted Rothgery to jail, and he was released after posting a surety bond.
  Rothgery had no money for a lawyer and made several unheeded oral
  and written requests for appointed counsel. He was subsequently in-
  dicted and rearrested, his bail was increased, and he was jailed when
  he could not post the bail. Subsequently, Rothgery was assigned a
  lawyer, who assembled the paperwork that prompted the indict-
  ment’s dismissal.
     Rothgery then brought this 

42 U. S. C. §1983

 action against re-
  spondent County, claiming that if it had provided him a lawyer
  within a reasonable time after the article 15.17 hearing, he would not
  have been indicted, 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, consider-
  ing itself bound by Circuit precedent to the effect that the right to
  counsel did not attach at the article 15.17 hearing because the rele-
  vant prosecutors were not aware of, or involved in, Rothgery’s arrest
  or appearance at the hearing, and there was no indication that the of-
  ficer at Rothgery’s appearance had any power to commit the State to
  prosecute without a prosecutor’s knowledge or involvement.
2                ROTHGERY v. GILLESPIE COUNTY

                                Syllabus

Held: A criminal defendant’s initial appearance before a magistrate
 judge, where he learns the charge against him and his liberty is sub-
 ject to restriction, marks the initiation of adversary judicial proceed-
 ings that trigger attachment of the Sixth Amendment right to coun-
 sel. Attachment does not also require that a prosecutor (as distinct
 from a police officer) be aware of that initial proceeding or involved in
 its conduct. Pp. 5–20.
    (a) Texas’s article 15.17 hearing marks the point of attachment,
 with the consequent state obligation to appoint counsel within a rea-
 sonable time once a request for assistance is made. This Court has
 twice held that the right to counsel attaches at the initial appearance
 before a judicial officer at which a defendant is told of the formal ac-
 cusation against him and restrictions are imposed on his liberty. See
 Michigan v. Jackson, 

475 U. S. 625, 629, n. 3

; Brewer v. Williams,
 

430 U. S. 387

, 398–399. Rothgery’s hearing was an initial appear-
 ance: he was taken before a magistrate judge, informed of the formal
 accusation against him, and sent to jail until he posted bail. Thus,
 Brewer and Jackson control. Pp. 5–10.
    (b) In McNeil v. Wisconsin, 

501 U. S. 171

, 180–181, the Court reaf-
 firmed that “[t]he Sixth Amendment right to counsel attaches at the
 first formal proceeding against an accused,” and observed that “in
 most States . . . free counsel is made available at that time.” That
 observation remains true today. The overwhelming consensus prac-
 tice conforms to the rule that the first formal proceeding is the point
 of attachment. The Court is advised without contradiction that not
 only the Federal Government, including the District of Columbia, but
 43 States take the first step toward appointing counsel before, at, or
 just after initial appearance. To the extent the remaining 7 States
 have been denying appointed counsel at that time, they are a distinct
 minority. Pp. 10–12.
    (c) Neither the Fifth Circuit nor the County offers an acceptable
 justification for the minority practice. Pp. 12–19.
       (1) The Fifth Circuit found the determining factor to be that no
 prosecutor was aware of Rothgery’s article 15.17 hearing or involved
 in it. This prosecutorial awareness standard is wrong. Neither
 Brewer nor Jackson said a word about the prosecutor’s involvement
 as a relevant fact, much less a controlling one. Those cases left no
 room for the factual enquiry the Circuit would require, and with good
 reason: an attachment rule that turned on determining the moment
 of a prosecutor’s first involvement would be “wholly unworkable and
 impossible to administer,” Escobedo v. Illinois, 

378 U. S. 478, 496

.
 The Fifth Circuit derived its rule from the statement, in Kirby v. Illi-
 nois, 

406 U. S. 682, 689

, that the right to counsel attaches when the
 government has “committed itself to prosecute.” But what counts as
                      Cite as: 

554 U. S. ____

 (2008)                     3

                                 Syllabus

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

475 U. S. 412, 429, n. 3

, and under the federal standard, an
  accusation filed with a judicial officer is sufficiently formal, and the
  government’s commitment to prosecute it sufficiently concrete, when
  the accusation prompts arraignment and restrictions on the accused’s
  liberty, see, e.g., 

Kirby, supra, at 689

. Pp. 12–15.
       (2) The County relies on United States v. Gouveia, 

467 U. S. 180

,
  in arguing that in considering the initial appearance’s significance,
  this Court must ignore prejudice to a defendant’s pretrial liberty, it
  being the concern, not of the right to counsel, but of the speedy-trial
  right and the Fourth Amendment. But the County’s suggestion that
  Fifth Amendment protections at the early stage obviate attachment
  of the Sixth Amendment right at initial appearance was refuted by
  Jackson, 

475 U. S., at 629, n. 3

. And since the Court is not asked to
  extend the right to counsel to a point earlier than formal judicial pro-
  ceedings (as in Gouveia), but to defer it to those proceedings in which
  a prosecutor is involved, Gouveia does not speak to the question at is-
  sue. Pp. 15–17.
       (3) The County’s third tack gets it no further. Stipulating that
  the properly formulated test is whether the State has objectively
  committed itself to prosecute, the County says that prosecutorial in-
  volvement is but one form of evidence of such commitment and that
  others include (1) the filing of formal charges or the holding of an ad-
  versarial preliminary hearing to determine probable cause to file
  such charges, and (2) a court appearance following arrest on an in-
  dictment. Either version runs up against Brewer and Jackson: an
  initial appearance following a charge signifies a sufficient commit-
  ment to prosecute regardless of a prosecutor’s participation, indict-
  ment, 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 ini-
  tial appearance’s significance, that was because it found the attach-
  ment issue an easy one. See, e.g., 

Brewer, supra, at 399

. Pp. 17–19.

491 F. 3d 293

, vacated and remanded.

   SOUTER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SCALIA, KENNEDY, GINSBURG, BREYER, and ALITO,
JJ., joined. ROBERTS, C. J., filed a concurring opinion, in which SCALIA,
J., joined. ALITO, J., filed a concurring opinion, in which ROBERTS, C. J.,
and SCALIA, J., joined. THOMAS, J., filed a dissenting opinion.
                         Cite as: 

554 U. S. ____

 (2008)                              1

                              Opinion of the Court

      NOTICE: This opinion is subject to formal revision before publication in the
      preliminary print of the United States Reports. Readers are requested to
      notify the Reporter of Decisions, Supreme Court of the United States, Wash-
      ington, D. C. 20543, of any typographical or other formal errors, in order
      that corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
                                    _________________

                                    No. 07–440
                                    _________________


 WALTER A. ROTHGERY, PETITIONER v. GILLESPIE
               COUNTY, TEXAS
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                                  [June 23, 2008]

  JUSTICE SOUTER delivered the opinion of the Court.
  This Court has held that the right to counsel guaranteed
by the Sixth Amendment applies at the first appearance
before a judicial officer at which a defendant is told of the
formal accusation against him and restrictions are im-
posed on his liberty. See Brewer v. Williams, 

430 U. S. 387

, 398–399 (1977); Michigan v. Jackson, 

475 U. S. 625, 629, n. 3

 (1986). The question here is whether attachment
of the right also requires that a public prosecutor (as
distinct from a police officer) be aware of that initial pro-
ceeding or involved in its conduct. We hold that it does
not.
                             I

                             A

  Although petitioner Walter Rothgery has never been
convicted of a felony,1 a criminal background check dis-
closed an erroneous record that he had been, and on July
——————
   1 “[F]elony charges . . . had been dismissed after Rothgery completed

a diversionary program, and both sides agree that [he] did not have a
felony conviction.” 

491 F. 3d 293, 294

 (CA5 2007) (case below).
2                ROTHGERY v. GILLESPIE COUNTY

                          Opinion of the Court

15, 2002, Texas police officers relied on this record to
arrest him as a felon in possession of a firearm. The offi-
cers lacked a warrant, and so promptly brought Rothgery
before a magistrate judge, as required by Tex. Crim. Proc.
Code Ann., Art. 14.06(a) (West Supp. 2007).2 Texas law
has no formal label for this initial appearance before a
magistrate, see 41 G. Dix & R. Dawson, Texas Practice
Series: Criminal Practice and Procedure §15.01 (2d ed.
2001), which is sometimes called the “article 15.17 hear-
ing,” see, e.g., Kirk v. State, 

199 S. W. 3d 467

, 476–477
(Tex. App. 2006); it combines the Fourth Amendment’s
required probable-cause determination3 with the setting of
bail, and is the point at which the arrestee is formally
apprised of the accusation against him, see Tex. Crim.
Proc. Code Ann., Art. 15.17(a).
   Rothgery’s article 15.17 hearing followed routine. The
arresting officer submitted a sworn “Affidavit Of Probable
Cause” that described the facts supporting the arrest and
“charge[d] that . . . Rothgery . . . commit[ted] the offense of
unlawful possession of a firearm by a felon—3rd degree
felony [

Tex. Penal Code Ann. §46.04

],” App. to Pet. for
Cert. 33a. After reviewing the affidavit, the magistrate
judge “determined that probable cause existed for the
——————
    2Aseparate article of the Texas Code of Criminal Procedure requires
prompt presentment in the case of arrests under warrant as well. See
Art. 15.17(a) (West Supp. 2007). Whether the arrest is under warrant
or warrantless, article 15.17 details the procedures a magistrate judge
must follow upon presentment. See Art. 14.06(a) (in cases of war-
rantless arrest, “[t]he magistrate shall immediately perform the duties
described in Article 15.17 of this Code”).
  3 See Gerstein v. Pugh, 

420 U. S. 103

, 113–114 (1975) (“[A] police-

man’s on-the-scene assessment of probable cause provides legal justifi-
cation for arresting a person suspected of crime, and for a brief period
of detention to take the administrative steps incident to arrest[,] . . . .
[but] the Fourth Amendment requires a judicial determination of
probable cause as a prerequisite to extended restraint of liberty follow-
ing arrest”).
                     Cite as: 

554 U. S. ____

 (2008)                   3

                         Opinion of the Court

arrest.” 

Id.,

 at 34a. The magistrate judge informed Roth-
gery of the accusation, set his bail at $5,000, and commit-
ted him to jail, from which he was released after posting a
surety bond. The bond, which the Gillespie County deputy
sheriff signed, stated that “Rothgery stands charged by
complaint duly filed . . . with the offense of a . . . felony, to
wit: Unlawful Possession of a Firearm by a Felon.” 

Id.,

 at
39a. The release was conditioned on the defendant’s
personal appearance in trial court “for any and all subse-
quent proceedings that may be had relative to the said
charge in the course of the criminal action based on said
charge.” 

Ibid.

  Rothgery had no money for a lawyer and made several
oral and written requests for appointed counsel,4 which
went unheeded.5 The following January, he was indicted
by a Texas grand jury for unlawful possession of a firearm
by a felon, resulting in rearrest the next day, and an order
increasing bail to $15,000. When he could not post it, he
was put in jail and remained there for three weeks.
  On January 23, 2003, six months after the article 15.17
hearing, Rothgery was finally assigned a lawyer, who
promptly obtained a bail reduction (so Rothgery could get
out of jail), and assembled the paperwork confirming that
Rothgery had never been convicted of a felony. Counsel
relayed this information to the district attorney, who in
turn filed a motion to dismiss the indictment, which was
granted.

——————
  4 Because respondent Gillespie County obtained summary judgment

in the current case, we accept as true that Rothgery made multiple
requests.
  5 Rothgery also requested counsel at the article 15.17 hearing itself,

but the magistrate judge informed him that the appointment of counsel
would delay setting bail (and hence his release from jail). Given the
choice of proceeding without counsel or remaining in custody, Rothgery
waived the right to have appointed counsel present at the hearing. See

491 F. 3d, at 295, n. 2

.
4                ROTHGERY v. GILLESPIE COUNTY

                          Opinion of the Court

                              B
   Rothgery then brought this 

42 U. S. C. §1983

 action
against respondent Gillespie County, claiming that if the
County had provided a lawyer within a reasonable time
after the article 15.17 hearing, he would not have been
indicted, rearrested, or jailed for three weeks.         The
County’s failure is said to be owing to its unwritten policy
of denying appointed counsel to indigent defendants out
on bond until at least the entry of an information or in-
dictment.6 Rothgery sees this policy as violating his Sixth
Amendment right to counsel.7
   The District Court granted summary judgment to the
County, see 

413 F. Supp. 2d 806, 807

 (WD Tex. 2006), and
the Court of Appeals affirmed, see 

491 F. 3d 293, 294

 (CA5
2007). The Court of Appeals felt itself bound by Circuit
precedent, see 

id.,

 at 296–297 (citing Lomax v. Alabama,

629 F. 2d 413

 (CA5 1980), and McGee v. Estelle, 

625 F. 2d 1206

 (CA5 1980)), to the effect that the Sixth Amendment
right to counsel did not attach at the article 15.17 hearing,
because “the relevant prosecutors were not aware of or
involved in Rothgery’s arrest or appearance before the
magistrate on July 16, 2002,” and “[t]here is also no indi-
cation that the officer who filed the probable cause affida-
vit at Rothgery’s appearance had any power to commit the
state to prosecute without the knowledge or involvement
of a prosecutor,” 

491 F. 3d, at 297

.
——————
    6 Rothgerydoes not challenge the County’s written policy for ap-
pointment of counsel, but argues that the County was not following
that policy in practice. See 

413 F. Supp. 2d 806

, 809–810 (WD Tex.
2006).
  7 Such a policy, if proven, arguably would also be in violation of Texas

state law, which appears to require appointment of counsel for indigent
defendants released from custody, at the latest, when the “first court
appearance” is made. See Tex. Crim. Proc. Code Ann., Art. 1.051(j).
See also Brief for Texas Association of Counties et al. as Amici Curiae
13 (asserting that Rothgery “was statutorily entitled to the appoint-
ment of counsel within three days after having requested it”).
                     Cite as: 

554 U. S. ____

 (2008)                    5

                          Opinion of the Court

  We granted certiorari, 

552 U. S. ___

 (2007), and now
vacate and remand.
                              II
   The Sixth Amendment right of the “accused” to assis-
tance of counsel in “all criminal prosecutions”8 is limited
by its terms: “it does not attach until a prosecution is
commenced.” McNeil v. Wisconsin, 

501 U. S. 171, 175

(1991); see also Moran v. Burbine, 

475 U. S. 412, 430

(1986). We have, for purposes of the right to counsel,
pegged commencement to “ ‘the initiation of adversary
judicial criminal proceedings—whether by way of formal
charge, preliminary hearing, indictment, information, or
arraignment,’ ” United States v. Gouveia, 

467 U. S. 180, 188

 (1984) (quoting Kirby v. Illinois, 

406 U. S. 682, 689

(1972) (plurality opinion)). The rule is not “mere formal-
ism,” but a recognition of the point at which “the govern-
ment has committed itself to prosecute,” “the adverse
positions of government and defendant have solidified,”
and the accused “finds himself faced with the prosecutorial
forces of organized society, and immersed in the intricacies
of substantive and procedural criminal law.” 

Kirby, supra, at 689

. The issue is whether Texas’s article 15.17 hearing
marks that point, with the consequent state obligation to
appoint counsel within a reasonable time once a request
for assistance is made.
                               A
  When the Court of Appeals said no, because no prosecu-
tor was aware of Rothgery’s article 15.17 hearing or in-
volved in it, the court effectively focused not on the start of
adversarial judicial proceedings, but on the activities and
knowledge of a particular state official who was presuma-
——————
  8 The Sixth Amendment provides that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence.”
6                ROTHGERY v. GILLESPIE COUNTY

                          Opinion of the Court

bly otherwise occupied. This was error.
  As the Court of Appeals recognized, see 

491 F. 3d, at 298

, we have twice held that the right to counsel attaches
at the initial appearance before a judicial officer, see
Jackson, 

475 U. S., at 629, n. 3

; Brewer 

430 U. S., at 399

.
This first time before a court, also known as the “ ‘prelimi-
nary arraignment’ ” or “ ‘arraignment on the complaint,’ ”
see 1 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal
Procedure §1.4(g), p. 135 (3d ed. 2007), is generally the
hearing at which “the magistrate informs the defendant of
the charge in the complaint, and of various rights in fur-
ther proceedings,” and “determine[s] the conditions for
pretrial release,” ibid. Texas’s article 15.17 hearing is an
initial appearance: Rothgery was taken before a magis-
trate judge, informed of the formal accusation against
him, and sent to jail until he posted bail. See supra, at 2–
3.9 Brewer and Jackson control.
  The Brewer defendant surrendered to the police after a
warrant was out for his arrest on a charge of abduction.
——————
  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 constitutional significance of judicial proceedings cannot be allowed
to founder on the vagaries of state criminal law, lest the attachment
rule be rendered utterly “vague and unpredictable.” Virginia v. Moore,

553 U. S. ___

, ___ (2008) (slip op., at 10). See 

491 F. 3d, at 300

 (“[W]e
are reluctant to rely on the formalistic question of whether the affidavit
here would be considered a ‘complaint’ or its functional equivalent
under Texas case law and Article 15.04 of the Texas Code of Criminal
Procedures—a question to which the answer is itself uncertain. In-
stead, we must look to the specific circumstances of this case and the
nature of the affidavit filed at Rothgery’s appearance before the magis-
trate” (footnote omitted)). What counts is that the complaint filed with
the magistrate judge accused Rothgery of committing a particular
crime and prompted the judicial officer to take legal action in response
(here, to set the terms of bail and order the defendant locked up).
                      Cite as: 

554 U. S. ____

 (2008)                      7

                           Opinion of the Court

He was then “arraigned before a judge . . . on the out-
standing arrest warrant,” and at the arraignment, “[t]he
judge advised him of his Miranda [v. Arizona, 

384 U. S. 436

 (1966)] rights and committed him to jail.” Brewer, 

430 U. S., at 391

. After this preliminary arraignment, and
before an indictment on the abduction charge had been
handed up, police elicited incriminating admissions that
ultimately led to an indictment for first-degree murder.
Because neither of the defendant’s lawyers had been
present when the statements were obtained, the Court
found it “clear” that the defendant “was deprived of . . . the
right to the assistance of counsel.” 

Id.,

 at 397–398. In
plain terms, the Court said that “[t]here can be no doubt
in the present case that judicial proceedings had been
initiated” before the defendant made the incriminating
statements. 

Id., at 399

. Although it noted that the State
had conceded the issue, the Court nevertheless held that
the defendant’s right had clearly attached for the reason
that “[a] warrant had been issued for his arrest, he had
been arraigned on that warrant before a judge in a . . .
courtroom, and he had been committed by the court to
confinement in jail.” Ibid.10
——————
  10 The dissent says that “Brewer’s attachment holding is indisputably

no longer good law” because “we have subsequently held that the Sixth
Amendment right to counsel is ‘ “offense specific,” ’ ” post, at 13 (opinion
of THOMAS, J.) (quoting Texas v. Cobb, 

532 U. S. 162, 164

 (2001)), i.e.,
that it does not “exten[d] to crimes that are ‘factually related’ to those
that have actually been charged,” 

Cobb, supra, at 167

. It is true that
Brewer appears to have assumed that attachment of the right with
respect to the abduction charge should prompt attachment for the
murder charge as well. But the accuracy of the dissent’s assertion ends
there, for nothing in Cobb’s conclusion that the right is offense specific
casts doubt on Brewer’s separate, emphatic holding that the initial
appearance marks the point at which the right attaches. Nor does
Cobb reflect, as the dissent suggests, see post, at 14, a more general
disapproval of our opinion in Brewer. While Brewer failed even to
acknowledge the issue of offense specificity, it spoke clearly and force-
fully about attachment. Cobb merely declined to follow Brewer’s
8                 ROTHGERY v. GILLESPIE COUNTY

                           Opinion of the Court

   In Jackson, the Court was asked to revisit the question
whether the right to counsel attaches at the initial ap-
pearance, and we had no more trouble answering it the
second time around. Jackson was actually two consoli-
dated cases, and although the State conceded that respon-
dent Jackson’s arraignment “represented the initiation of
formal legal proceedings,” 475 U. S., at 629, n. 3, it argued
that the same was not true for respondent Bladel. In
briefing us, the State explained that “[i]n Michigan, any
person charged with a felony, after arrest, must be
brought before a Magistrate or District Court Judge with-
out unnecessary delay for his initial arraignment.” Brief
for Petitioner in Michigan v. Bladel, O. T. 1985, No. 84–
1539, p. 24. The State noted that “[w]hile [Bladel] had
been arraigned . . . , there is also a second arraignment in
Michigan procedure . . . , at which time defendant has his
first opportunity to enter a plea in a court with jurisdic-
tion to render a final decision in a felony case.” Id., at 25.
The State contended that only the latter proceeding, the
“arraignment on the information or indictment,” Y.
Kamisar, W. LaFave, J. Israel, & N. King, Modern Crimi-
nal Procedure 28 (9th ed. 1999) (emphasis deleted), should
trigger the Sixth Amendment right.11 “The defendant’s
——————
unmentioned assumption, and thus it lends no support to the dissent’s
claim that we should ignore what Brewer explicitly said.
  11 The State continued to press this contention at oral argument. See

Tr. of Oral Arg. in Michigan v. Jackson, O. T. 1985, No. 84–1531 etc., p.
4 (“[T]he Michigan Supreme Court held that if a defendant, while at his
initial appearance before a magistrate who has no jurisdiction to accept
a final plea in the case, whose only job is ministerial, in other words to
advise a defendant of the charge against him, set bond if bond is
appropriate, and to advise him of his right to counsel and to get the
administrative process going if he’s indigent, the Michigan Supreme
Court said if the defendant asked for appointed counsel at that stage,
the police are forevermore precluded from initiating interrogation of
that defendant”); id., at 8 (“First of all, as a practical matter, at least in
our courts, the police are rarely present for arraignment, for this type of
                     Cite as: 

554 U. S. ____

 (2008)                    9

                          Opinion of the Court

rights,” the State insisted, “are fully protected in the
context of custodial interrogation between initial arraign-
ment and preliminary examination by the Fifth Amend-
ment right to counsel” and by the preliminary examina-
tion itself.12 See Bladel Brief, supra, at 26.
   We flatly rejected the distinction between initial ar-
raignment and arraignment on the indictment, the State’s
argument being “untenable” in light of the “clear language
in our decisions about the significance of arraignment.”

Jackson, supra, at 629, n. 3

. The conclusion was driven by
the same considerations the Court had endorsed in
Brewer: by the time a defendant is brought before a judi-
cial officer, is informed of a formally lodged accusation,
and has restrictions imposed on his liberty in aid of the
prosecution, the State’s relationship with the defendant
has become solidly adversarial. And that is just as true
when the proceeding comes before the indictment (in the
case of the initial arraignment on a formal complaint) as
when it comes after it (at an arraignment on an indict-
ment).13 See Coleman v. Alabama, 

399 U. S. 1, 8

 (1970)
——————
an arraignment, for an initial 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”).
  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. Crim. Proc.
Code Ann., Art. 15.17(a). The examining trial in Texas is optional only,
and the defendant must affirmatively request it. See Reply Brief for
Petitioner 25.
  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
10               ROTHGERY v. GILLESPIE COUNTY

                          Opinion of the Court

(plurality opinion) (right to counsel applies at preindict-
ment preliminary hearing at which the “sole purposes . . .
are to determine whether there is sufficient evidence
against the accused to warrant presenting his case to the
grand jury, and, if so, to fix bail if the offense is bailable”);
cf. Owen v. State, 

596 So. 2d 985, 989, n. 7

 (Fla. 1992)
(“The term ‘arraign’ simply means to be called before a
court officer and charged with a crime”).
                              B
   Our latest look at the significance of the initial appear-
ance was McNeil, 

501 U. S. 171

, which is no help to the
County. In McNeil the State had conceded that the right
to counsel attached at the first appearance before a county
court commissioner, who set bail and scheduled a prelimi-
nary examination. See 

id., at 173

; see also 

id., at 175

 (“It
is undisputed, and we accept for purposes of the present
case, that at the time petitioner provided the incriminat-
ing statements at issue, his Sixth Amendment right had
attached . . .”). But we did more than just accept the
concession; we went on to reaffirm that “[t]he Sixth
Amendment right to counsel attaches at the first formal
proceeding against an accused,” and observed that “in
——————
Brewer, the County speculates that an information might have been
filed before the defendant’s initial appearance. See Brief for Respon-
dent 34–36. But as Rothgery points out, the initial appearance in
Brewer was made in municipal court, and a felony information could
not have been filed there. See Reply Brief for Petitioner 11. As to
Jackson, the County suggests that the Court might have viewed Michi-
gan’s initial arraignment as a significant proceeding only because the
defendant could make a statement at that hearing, and because re-
spondent Bladel did in fact purport to enter a plea of not guilty. See
Brief for Respondent 36–37. But this attempt to explain Jackson as a
narrow holding is impossible to square with Jackson’s sweeping rejec-
tion of the State’s claims. It is further undermined by the fact that the
magistrate judge in Bladel’s case, like the one in Texas’s article 15.17
hearing, had no jurisdiction to accept a plea of guilty to a felony charge.
See Reply Brief for Petitioner 11–12.
                     Cite as: 

554 U. S. ____

 (2008)                   11

                          Opinion of the Court

most States, at least with respect to serious offenses, free
counsel is made available at that time . . . .” 

Id.,

 at 180–
181.
  That was 17 years ago, the same is true today, and the
overwhelming consensus practice conforms to the rule that
the first formal proceeding is the point of attachment. We
are advised without contradiction that not only the Fed-
eral Government, including the District of Columbia, but
43 States take the first step toward appointing counsel
“before, at, or just after initial appearance.” App. to Brief
for National Association of Criminal Defense Lawyers as
Amicus Curiae 1a; see 

id.,

 at 1a–7a (listing jurisdictions);14
——————
  14 The 43 States are these: (1) Alaska: see 

Alaska Stat. §18.85.100

(2006); Alaska Rule Crim. Proc. 5 (Lexis 2006–2007); (2) Arizona: see
Ariz. Rules Crim. Proc. 4.2, 6.1 (West Supp. 2007), (West 1998); (3)
Arkansas: see Ark. Rule Crim. Proc. 8.2 (2006); Bradford v. State, 

325 Ark. 278

, 

927 S. W. 2d 329

 (1996); (4) California: see 

Cal. Penal Code §§858

, 859 (West Supp. 2008); In re Johnson, 

62 Cal. 2d 325

, 329–330,

398 P. 2d 420

, 422–423 (1965); (5) Connecticut: see Conn. Gen. Stat.
§54–1b (2005); Conn. Super. Ct. Crim. Rules §§37–1, 37–3, 37–6 (West
2008); State v. Pierre, 

277 Conn. 42

, 95–96, 

890 A. 2d 474, 507

 (2006);
(6) Delaware: see Del. Code Ann., Tit. 29, §4604 (2003); Del. Super. Ct.
Crim. Rules 5, 44 (2008); Deputy v. State, 

500 A. 2d 581

 (Del. 1985); (7)
Florida: see Fla. Rule Crim. Proc. 3.111 (West 2007); (8) Georgia: see
Ga. Code Ann. §§17–4–26 (2004), 17–12–23 (Supp. 2007); O’Kelley v.
State, 

278 Ga. 564

, 

604 S. E. 2d 509

 (2004); (9) Hawaii: see Haw. Rev.
Stat. §§802–1, 803–9 (1993); (10) Idaho: see Idaho Crim. Rules 5, 44
(Lexis 2007); Idaho Code §19–852 (Lexis 2004); (11) Illinois: see Ill.
Comp. Stat., ch. 725, §5/109–1 (2006); (12) Indiana: see Ind. Code §§35–
33–7–5, 35–33–7–6 (West 2004); (13) Iowa: see Iowa Rules Crim. Proc.
§§2.2, 2.28 (West 2008); (14) Kentucky: see Ky. Rule Crim. Proc. §3.05
(Lexis 2008); (15) Louisiana: see La. Code Crim. Proc. Ann., Art 230.1
(West Supp. 2008); (16) Maine: see Me. Rule Crim. Proc. 5C (West
2007); (17) Maryland: see Md. Ann. Code, Art. 27A, §4 (Lexis Supp.
2007); Md. Rule 4–214 (Lexis 2008); McCarter v. State, 

363 Md. 705

,

770 A. 2d 195

 (2001); (18) Massachusetts: see Mass. Rule Crim. Proc. 7
(West 2006); (19) Michigan: see Mich. Rules Crim. Proc 6.005 (West
2008); (20) Minnesota: see Minn. Rules Crim. Proc. 5.01, 5.02 (2006);
(21) Mississippi: see Jimpson v. State, 

532 So. 2d 985

 (Miss. 1988); (22)
Missouri: see 

Mo. Rev. Stat. §600.048

 (2000); (23) Montana: see Mont.
12               ROTHGERY v. GILLESPIE COUNTY

                          Opinion of the Court

see also Brief for American Bar Association as Amicus
Curiae 5–8 (describing the ABA’s position for the past 40
years that counsel should be appointed “certainly no later
than the accused’s initial appearance before a judicial
officer”). And even in the remaining 7 States (Alabama,
Colorado, Kansas, Oklahoma, South Carolina, Texas, and
Virginia) the practice is not free of ambiguity. See App. to
Brief for National Association of Criminal Defense Law-
yers as Amicus Curiae 5a–7a (suggesting that the practice
in Alabama, Kansas, South Carolina, and Virginia might
actually be consistent with the majority approach); see
also n. 7, supra. In any event, to the extent these States
have been denying appointed counsel on the heels of the
first appearance, they are a distinct minority.
                            C
  The only question is whether there may be some argu-
able justification for the minority practice. Neither the
——————
Code Ann. §46–8–101 (2007); (24) Nebraska: see Neb. Rev. Stat. §29–
3902 (1995); (25) Nevada: see 

Nev. Rev. Stat. §178.397

 (2007); (26) New
Hampshire: see N. H. Rev. Stat. Ann. §604–A:3 (2001); (27) New
Jersey: see N. J. Rule Crim. Proc. 3:4–2 (West 2008); State v. Tucker,
137 N. J. 259, 

645 A. 2d 111

 (1994); (28) New Mexico: see N. M. Stat.
Ann. §31–16–3 (2000); (29) New York: see N. Y. Crim. Proc. Law Ann.
§180.10 (West 2007); (30) North Carolina: see N. C. Gen. Stat. Ann.
§7A–451 (Lexis 2007); (31) North Dakota: see N. D. Rules Crim. Proc. 5,
44 (Lexis 2008–2009); (32) Ohio: see Ohio Rules Crim. Proc. 5, 44 (Lexis
2006); (33) Oregon: see Ore. Rev. Stat. §§135.010, 135.040, 135.050
(2007); (34) Pennsylvania: see Pa. Rules Crim. Proc. 122, 519 (West
2008); (35) Rhode Island: see R. I. Dist. Ct. Rules Crim. Proc. 5, 44
(2007); (36) South Dakota: see S. D. Rule Crim. Proc. §23A–40–6 (2007);
(37) Tennessee: see Tenn. Rule Crim. Proc. 44 (2007); (38) Utah: see
Utah Code Ann. §77–32–302 (Lexis Supp. 2007); (39) Vermont: see Vt.
Stat. Ann., Tit. 13, §5234 (1998); Vt. Rules Crim. Proc. 5, 44 (2003); (40)
Washington: see Wash. Super. Ct. Crim. Rule 3.1 (West 2008); (41)
West Virginia: see W. Va. Code Ann. §50–4–3 (Lexis 2000); State v.
Barrow, 

178 W. Va. 406

, 

359 S. E. 2d 844

 (1987); (42) Wisconsin: see

Wis. Stat. §967.06

 (2003–2004); (43) Wyoming: see Wyo. Stat. Ann. §7–
6–105 (2007); Wyo. Rules Crim. Proc. 5, 44 (2007).
                 Cite as: 

554 U. S. ____

 (2008)           13

                     Opinion of the Court

Court of Appeals in its opinion, nor the County in its
briefing to us, has offered an acceptable one.
                              1
  The Court of Appeals thought Brewer and Jackson could
be distinguished on the ground that “neither case ad-
dressed the issue of prosecutorial involvement,” and the
cases were thus “neutral on the point,” 

491 F. 3d, at 298

.
With Brewer and Jackson distinguished, the court then
found itself bound by Circuit precedent that “ ‘an adver-
sary criminal proceeding has not begun in a case where
the prosecution officers are unaware of either the charges
or the arrest.’ ” See 

491 F. 3d, at 297

 (quoting McGee v.
Estelle, 

625 F. 3d 1206, 1208

 (CA5 1980)). Under this
standard of prosecutorial awareness, attachment depends
not on whether a first appearance has begun adversary
judicial proceedings, but on whether the prosecutor had a
hand in starting it. That standard is wrong.
  Neither Brewer nor Jackson said a word about the
prosecutor’s involvement as a relevant fact, much less a
controlling one. Those cases left no room for the factual
enquiry the Court of Appeals would require, and with good
reason: an attachment rule that turned on determining
the moment of a prosecutor’s first involvement would be
“wholly unworkable and impossible to administer,” Esco-
bedo v. Illinois, 

378 U. S. 478, 496

 (1964) (White, J., dis-
senting), guaranteed to bog the courts down in prying
enquiries into the communication between police (who are
routinely present at defendants’ first appearances) and the
State’s attorneys (who are not), see Brief for Petitioner 39–
41. And it would have the practical effect of resting at-
tachment on such absurd distinctions as the day of the
month an arrest is made, see Brief for Brennan Center of
Justice et al. as Amici Curiae 10 (explaining that “jails
may be required to report their arrestees to county prose-
cutor offices on particular days” (citing Tex. Crim. Proc.
14            ROTHGERY v. GILLESPIE COUNTY

                      Opinion of the Court

Code Ann., Art. 2.19)); or “the sophistication, or lack
thereof, of a jurisdiction’s computer intake system,” Brief
for Brennan Center, supra, at 11; see also id., at 10–12
(noting that only “[s]ome Texas counties . . . have com-
puter systems that provide arrest and detention informa-
tion simultaneously to prosecutors, law enforcement offi-
cers, jail personnel, and clerks. Prosecutors in these
jurisdictions use the systems to prescreen cases early in
the process before an initial appearance” (citing D. Carmi-
chael, M. Gilbert, & M. Voloudakis, Texas A&M U., Public
Policy Research Inst., Evaluating the Impact of Direct
Electronic Filing in Criminal Cases: Closing the Paper
Trap 2–3 (2006), online at http://www.courts.state.tx.
us/tfid/pdf/FinalReport7-12-06wackn.pdf (as visited June
19, 2008, and available in Clerk of Court’s case file))).
   It is not that the Court of Appeals believed that any
such regime would be desirable, but it thought originally
that its rule was implied by this Court’s statement that
the right attaches when the government has “committed
itself to prosecute.” Kirby, 

406 U. S., at 689

. The Court of
Appeals reasoned that because “the decision not to prose-
cute is the quintessential function of a prosecutor” under
Texas law, 

491 F. 3d, at 297

 (internal quotation marks
omitted), the State could not commit itself to prosecution
until the prosecutor 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 defini-
tion”), and under the federal standard, an accusation filed
with a judicial officer is sufficiently formal, and the gov-
ernment’s commitment to prosecute it sufficiently con-
crete, when the accusation prompts arraignment and
restrictions on the accused’s liberty to facilitate the prose-
cution, see Jackson, 

475 U. S., at 629, n. 3

; Brewer, 430
                  Cite as: 

554 U. S. ____

 (2008)           15

                      Opinion of the Court

U. S., at 399; 

Kirby, supra, at 689

; see also n. 9, supra.
From that point on, the defendant is “faced with the
prosecutorial forces of organized society, and immersed in
the intricacies of substantive and procedural criminal law”
that define his capacity and control his actual ability to
defend himself against a formal accusation that he is a
criminal. 

Kirby, supra, at 689

. By that point, it is too late
to wonder whether he is “accused” within the meaning of
the Sixth Amendment, and it makes no practical sense to
deny it. See Grano, Rhode Island v. Innis: A Need to
Reconsider the Constitutional Premises Underlying the
Law of Confessions, 

17 Am. Crim. L. Rev. 1

, 31 (1979)
(“[I]t would defy common sense to say that a criminal
prosecution has not commenced against a defendant who,
perhaps incarcerated and unable to afford judicially im-
posed bail, awaits preliminary examination on the author-
ity of a charging document filed by the prosecutor, less
typically by the police, and approved by a court of law”
(internal quotation marks omitted)). All of this is equally
true whether the machinery of prosecution was turned on
by the local police or the state attorney general. In this
case, for example, Rothgery alleges that after the initial
appearance, he was “unable to find any employment for
wages” because “all of the potential employers he con-
tacted knew or learned of the criminal charge pending
against him.” Original Complaint in No. 1:04–CV–00456–
LY (WD Tex., July 15, 2004), p. 5. One may assume that
those potential employers would still have declined to
make job offers if advised that the county prosecutor had
not filed the complaint.
                              2
  The County resists this logic with the argument that in
considering the significance of the initial appearance, we
must ignore prejudice to a defendant’s pretrial liberty,
reasoning that it is the concern, not of the right to counsel,
16            ROTHGERY v. GILLESPIE COUNTY

                     Opinion of the Court

but of the speedy-trial right and the Fourth Amendment.
See Brief for Respondent 47–51. And it cites Gouveia, 

467 U. S. 180

, in support of its contention. See Brief for Re-
spondent 49; see also Brief for Texas et al. as Amici Curiae
8–9. We think the County’s reliance on Gouveia is mis-
placed, and its argument mistaken.
   The defendants in Gouveia were prison inmates, sus-
pected of murder, who had been placed in an administra-
tive detention unit and denied counsel up until an indict-
ment was filed. Although no formal judicial proceedings
had taken place prior to the indictment, see 

467 U. S., at 185

, the defendants argued that their administrative
detention should be treated as an accusation for purposes
of the right to counsel because the government was ac-
tively investigating the crimes. We recognized that “be-
cause an inmate suspected of a crime is already in prison,
the prosecution may have little incentive promptly to
bring formal charges against him, and that the resulting
preindictment delay may be particularly prejudicial to the
inmate,” 

id., at 192

, but we noted that statutes of limita-
tion and protections of the Fifth Amendment guarded
against delay, and that there was no basis for “depart[ing]
from our traditional interpretation of the Sixth Amend-
ment right to counsel in order to provide additional protec-
tions for [the inmates],” 

ibid.

   Gouveia’s holding that the Sixth Amendment right to
counsel had not attached has no application here. For one
thing, Gouveia does not affect the conclusion we reaf-
firmed two years later in Jackson, that bringing a defen-
dant before a court for initial appearance signals a suffi-
cient commitment to prosecute and marks the start of
adversary judicial proceedings. (Indeed, Jackson refutes
the County’s argument that Fifth Amendment protections
at the early stage obviate attachment of the Sixth Amend-
ment right at initial appearance. See supra, at 8–9.) And
since we are not asked to extend the right to counsel to a
                  Cite as: 

554 U. S. ____

 (2008)           17

                      Opinion of the Court

point earlier than formal judicial proceedings (as in Gou-
veia), but to defer it to those proceedings in which a prose-
cutor is involved, Gouveia does not speak to the question
before us.
  The County also tries to downplay the significance of the
initial appearance by saying that an attachment rule
unqualified by prosecutorial involvement would lead to the
conclusion “that the State has statutorily committed to
prosecute every suspect arrested by the police,” given that
“state law requires [an article 15.17 hearing] for every
arrestee.” Brief for Respondent 24 (emphasis in original).
The answer, though, is that the State has done just that,
subject to the option to change its official mind later. The
State may rethink its commitment at any point: it may
choose not to seek indictment in a felony case, say, or the
prosecutor may enter nolle prosequi after the case gets to
the jury room. But without a change of position, a defen-
dant subject to accusation after initial appearance is
headed for trial and needs to get a lawyer working,
whether to attempt to avoid that trial or to be ready with
a defense when the trial date arrives.
                              3
    A third tack on the County’s part, slightly different from
the one taken by the Fifth Circuit, gets it no further. The
County stipulates that “the properly formulated test is not
. . . merely whether prosecutors have had any involvement
in the case whatsoever, but instead whether the State has
objectively committed itself to prosecute.” 

Id., at 31

. It
then informs us that “[p]rosecutorial involvement is
merely one form of evidence of such commitment.” 

Ibid.

Other sufficient evidentiary indications are variously
described: first (expansively) as “the filing of formal
charges . . . by information, indictment or formal com-
plaint, or the holding of an adversarial preliminary hear-
ing to determine probable cause to file such charges,” 

ibid.

18            ROTHGERY v. GILLESPIE COUNTY

                      Opinion of the Court

(citing Kirby, 

406 U. S., at 689

); then (restrictively) as a
court appearance following “arrest . . . on an indictment or
information,” Brief for Respondent 32. Either version, in
any event, runs up against Brewer and Jackson: an initial
appearance following a charge signifies a sufficient com-
mitment to prosecute regardless of a prosecutor’s partici-
pation, indictment, information, or what the County calls
a “formal” complaint.
   So the County is reduced to taking aim at those cases.
Brewer and Jackson, we are told, are “vague” and thus of
“limited, if any, precedential value.” Brief for Respondent
33, 35; see also id., at 32, n. 13 (asserting that Brewer and
Jackson “neither provide nor apply an analytical frame-
work for determining attachment”). And, according to the
County, our cases (Brewer and Jackson aside) actually
establish a “general rule that the right to counsel attaches
at the point that [what the County calls] formal charges
are filed,” Brief for Respondent 19, with exceptions al-
lowed only in the case of “a very limited set of specific
preindictment situations,” id., at 23. The County suggests
that the latter category should be limited to those appear-
ances at which the aid of counsel is urgent and “ ‘the dan-
gers to the accused of proceeding without counsel’ ” are
great. Id., at 28 (quoting Patterson v. Illinois, 

487 U. S. 285, 298

 (1988)). Texas’s article 15.17 hearing should not
count as one of those situations, the County says, because
it is not of critical significance, since it “allows no presen-
tation of witness testimony and provides no opportunity to
expose weaknesses in the government’s evidence, create a
basis for later impeachment, or even engage in basic dis-
covery.” Brief for Respondent 29.
   We think the County is wrong both about the clarity of
our cases and the substance that we find clear. Certainly
it is true that the Court in Brewer and Jackson saw no
need for lengthy disquisitions on the significance of the
initial appearance, but that was because it found the
                     Cite as: 

554 U. S. ____

 (2008)                   19

                          Opinion of the Court

attachment issue an easy one. The Court’s conclusions
were not vague; Brewer expressed “no doubt” that the
right to counsel attached at the initial appearance, 

430 U. S., at 399

, and Jackson said that the opposite result
would be “untenable,” 475 U. S., at 629, n. 3.
  If, indeed, the County had simply taken the cases at face
value, it would have avoided the mistake of merging the
attachment question (whether formal judicial proceedings
have begun) with the distinct “critical stage” question
(whether counsel must be present at a postattachment
proceeding unless the right to assistance is validly
waived). Attachment occurs when the government has
used the judicial machinery to signal a commitment to
prosecute as spelled out in Brewer and Jackson. Once
attachment occurs, the accused at least15 is entitled to the
presence of appointed counsel during any “critical stage” of
the postattachment proceedings; what makes a stage
critical is what shows the need for counsel’s presence.16
Thus, counsel must be appointed within a reasonable time
after attachment to allow for adequate representation at
any critical stage before trial, as well as at trial itself.
  The County thus makes an analytical mistake in its
assumption that attachment necessarily requires the
occurrence or imminence of a critical stage. See Brief for
Respondent 28–30. On the contrary, it is irrelevant to
attachment that the presence of counsel at an article 15.17
——————
  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

individual and agents of the State (whether “formal or informal, in
court or out,” see United States v. Wade, 

388 U. S. 218, 226

 (1967)) that
amount to “trial-like confrontations,” at which counsel would help the
accused “in coping with legal problems or . . . meeting his adversary,”
United States v. Ash, 

413 U. S. 300

, 312–313 (1973); see also Massiah v.
United States, 

377 U. S. 201

 (1964).
20              ROTHGERY v. GILLESPIE COUNTY

                         Opinion of the Court

hearing, say, may not be critical, just as it is irrelevant
that counsel’s presence may not be critical when a prose-
cutor walks over to the trial court to file an information.
As we said in Jackson, “[t]he question whether arraign-
ment signals the initiation of adversary judicial proceed-
ings . . . is distinct from the question whether the ar-
raignment itself is a critical stage requiring the presence
of counsel.” 475 U. S., at 630, n. 3. Texas’s article 15.17
hearing plainly signals attachment, even if it is not itself a
critical stage.17
                            III
   Our holding is narrow. We do not decide whether the 6-
month delay in appointment of counsel resulted in preju-
dice to Rothgery’s Sixth Amendment rights, and have no
occasion to consider what standards should apply in decid-
ing this. We merely reaffirm what we have held before
and what an overwhelming majority of American jurisdic-
tions understand in practice: a criminal defendant’s initial
appearance before a judicial officer, where he learns the
charge against him and his liberty is subject to restriction,
marks the start of adversary judicial proceedings that
trigger attachment of the Sixth Amendment right to coun-
sel. Because the Fifth Circuit came to a different conclu-
sion on this threshold issue, its judgment is vacated, and
the case is remanded for further proceedings consistent
with this opinion.
                                            It is so ordered.




——————
  17 The dissent likewise anticipates an issue distinct from attachment

when it claims Rothgery has suffered no harm the Sixth Amendment
recognizes. Post, at 18. Whether the right has been violated and
whether Rothgery has suffered cognizable harm are separate questions
from when the right attaches, the sole question before us.
                 Cite as: 

554 U. S. ____

 (2008)           1

                  ROBERTS, C. J., concurring

SUPREME COURT OF THE UNITED STATES
                         _________________

                          No. 07–440
                         _________________


 WALTER A. ROTHGERY, PETITIONER v. GILLESPIE
               COUNTY, TEXAS
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                        [June 23, 2008]

   CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA
joins, concurring.
   JUSTICE THOMAS’s analysis of the present issue is com-
pelling, but I believe the result here is controlled by
Brewer v. Williams, 

430 U. S. 387

 (1977), and Michigan v.
Jackson, 

475 U. S. 625

 (1986). A sufficient case has not
been made for revisiting those precedents, and accordingly
I join the Court’s opinion.
   I also join 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.
                  Cite as: 

554 U. S. ____

 (2008)            1

                      ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES
                          _________________

                           No. 07–440
                          _________________


 WALTER A. ROTHGERY, PETITIONER v. GILLESPIE
               COUNTY, TEXAS
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                         [June 23, 2008]

   JUSTICE ALITO, with whom THE CHIEF JUSTICE and
JUSTICE SCALIA join, concurring.
   I join the Court’s opinion because I do not understand it
to hold that a defendant is entitled to the assistance of
appointed counsel as soon as his Sixth Amendment right
attaches. As I interpret our precedents, the term “attach-
ment” signifies nothing more than the beginning of the
defendant’s prosecution. It does not mark the beginning of
a substantive entitlement to the assistance of counsel. I
write separately to elaborate on my understanding of the
term “attachment” and its relationship to the Amend-
ment’s substantive guarantee of “the Assistance of Coun-
sel for [the] defence.”
   The Sixth Amendment provides in pertinent part that
“[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his de-
fence.” The Amendment thus defines the scope of the
right to counsel in three ways: It provides who may assert
the right (“the accused”); when the right may be asserted
(“[i]n all criminal prosecutions”); and what the right guar-
antees (“the right . . . to have the Assistance of Counsel for
his defence”).
   It is in the context of interpreting the Amendment’s
answer to the second of these questions—when the right
may be asserted—that we have spoken of the right “at-
2             ROTHGERY v. GILLESPIE COUNTY

                     ALITO, J., concurring

taching.” In Kirby v. Illinois, 

406 U. S. 682, 688

 (1972), a
plurality of the Court explained that “a person’s Sixth and
Fourteenth Amendment right to counsel attaches only at
or after the time that adversary judicial proceedings have
been initiated against him.” A majority of the Court
elaborated on that explanation in Moore v. Illinois, 

434 U. S. 220

 (1977):
       “In Kirby v. Illinois, the plurality opinion made
    clear that the right to counsel announced in Wade and
    Gilbert attaches only to corporeal identifications con-
    ducted at or after the initiation of adversary judicial
    criminal proceedings—whether by way of formal
    charge, preliminary hearing, indictment, information,
    or arraignment. This is so because the initiation of
    such proceedings marks the commencement of the
    ‘criminal prosecutions’ to which alone the explicit
    guarantees of the Sixth Amendment are applicable.
    Thus, in Kirby the plurality held that the prosecu-
    tion’s evidence of a robbery victim’s one-on-one sta-
    tionhouse identification of an uncounseled suspect
    shortly after the suspect’s arrest was admissible be-
    cause adversary judicial criminal proceedings had not
    yet been initiated.” 

Id.,

 at 226–227 (internal quota-
    tion marks and citations omitted).
When we wrote in Kirby and Moore that the Sixth
Amendment right had “attached,” we evidently meant
nothing more than that a “criminal prosecutio[n]” had
begun. Our cases have generally used the term in that
narrow fashion. See Texas v. Cobb, 

532 U. S. 162, 167

(2001) (internal quotation marks omitted); McNeil v.
Wisconsin, 

501 U. S. 171, 175

 (1991); Michigan v. Harvey,

494 U. S. 344, 353

 (1990); Satterwhite v. Texas, 

486 U. S. 249

, 254–255 (1988); Michigan v. Jackson, 

475 U. S. 625, 629

, and n. 3 (1986); Moran v. Burbine, 

475 U. S. 412, 428

(1986); United States v. Gouveia, 

467 U. S. 180

, 188
                 Cite as: 

554 U. S. ____

 (2008)           3

                     ALITO, J., concurring

(1984); Edwards v. Arizona, 

451 U. S. 477, 480, n. 7

(1981); Doggett v. United States, 

505 U. S. 647, 663, n. 2

(1992) (THOMAS, J., dissenting); Patterson v. Illinois, 

487 U. S. 285

, 303–304 (1988) (STEVENS, J., dissenting);
United States v. Ash, 

413 U. S. 300, 322

 (1973) (Stewart,
J., concurring in judgment). But see Estelle v. Smith, 

451 U. S. 454, 469

 (1981) (“[W]e have held that the right to
counsel granted by the Sixth Amendment means that a
person is entitled to the help of a lawyer at or after the
time that adversary judicial proceedings have been initi-
ated against him . . .” (internal quotation marks omitted));
Brewer v. Williams, 

430 U. S. 387, 398

 (1977) (“[T]he right
to counsel granted by the Sixth and Fourteenth Amend-
ments means at least that a person is entitled to the help
of a lawyer at or after the time that judicial proceedings
have been initiated against him . . .”).
   Because pretrial criminal procedures vary substantially
from jurisdiction to jurisdiction, there is room for dis-
agreement about when a “prosecution” begins for Sixth
Amendment purposes. As the Court, notes, however, we
have previously held that “arraignments” that were func-
tionally indistinguishable from the Texas magistration
marked the point at which the Sixth Amendment right to
counsel “attached.” See ante, at 6 (discussing 

Jackson, supra,

 and 

Brewer, supra).

   It does not follow, however, and I do not understand the
Court to hold, that the county had an obligation to appoint
an attorney to represent petitioner within some specified
period after his magistration. To so hold, the Court would
need to do more than conclude that petitioner’s criminal
prosecution had begun. It would also need to conclude
that the assistance of counsel in the wake of a Texas
magistration is part of the substantive guarantee of the
Sixth Amendment. That question lies beyond our reach,
petitioner having never sought our review of it. See Pet.
for Cert. i (inviting us to decide whether the Fifth Circuit
4             ROTHGERY v. GILLESPIE COUNTY

                     ALITO, J., concurring

erred in concluding “that adversary judicial proceedings
. . . had not commenced, and petitioner’s Sixth Amend-
ment rights had not attached”). To recall the framework
laid out earlier, we have been asked to address only the
when question, not the what question. Whereas the tem-
poral scope of the right is defined by the words “[i]n all
criminal prosecutions,” the right’s substantive guarantee
flows from a different textual font: the words “Assistance
of Counsel for his defence.”
    In interpreting this latter phrase, we have held that
“defence” means defense at trial, not defense in relation to
other objectives that may be important to the accused.
See 

Gouveia, supra, at 190

 (“[T]he right to counsel exists
to protect the accused during trial-type confrontations
with the prosecutor . . .”); 

Ash, supra, at 309

 (“[T]he core
purpose of the counsel guarantee was to assure ‘Assis-
tance’ at trial . . .”). We have thus rejected the argument
that the Sixth Amendment entitles the criminal defendant
to the assistance of appointed counsel at a probable cause
hearing. See Gerstein v. Pugh, 

420 U. S. 103

, 122–123
(1975) (observing that the Fourth Amendment hearing “is
addressed only to pretrial custody” and has an insubstan-
tial effect on the defendant’s trial rights). More generally,
we have rejected the notion that the right to counsel enti-
tles the defendant to a “preindictment private investiga-
tor.” 

Gouveia, supra, at 191

.
    At the same time, we have recognized that certain pre-
trial events may so prejudice the outcome of the defen-
dant’s prosecution that, as a practical matter, the defen-
dant must be represented at those events in order to enjoy
genuinely effective assistance at trial. See, e.g., 

Ash, supra,

 at 309–310; United States v. Wade, 

388 U. S. 218, 226

 (1967). Thus, we have held that an indigent defen-
dant is entitled to the assistance of appointed counsel at a
preliminary hearing if “substantial prejudice . . . inheres
in the . . . confrontation” and “counsel [may] help avoid
                  Cite as: 

554 U. S. ____

 (2008)            5

                      ALITO, J., concurring

that prejudice.” Coleman v. Alabama, 

399 U. S. 1, 9

(1970) (plurality opinion) (internal quotation marks omit-
ted); see also White v. Maryland, 

373 U. S. 59, 60

 (1963)
(per curiam). We have also held that the assistance of
counsel is guaranteed at a pretrial lineup, since “the con-
frontation compelled by the State between the accused and
the victim or witnesses to a crime to elicit identification
evidence is peculiarly riddled with innumerable dangers
and variable factors which might seriously, even crucially,
derogate from a fair trial.” 

Wade, supra, at 228

. Other
“critical stages” of the prosecution include pretrial interro-
gation, a pretrial psychiatric exam, and certain kinds of
arraignments. See Harvey, 

494 U. S., at 358, n. 4

; Estelle,
supra, at 470–471; 

Coleman, supra,

 at 7–8 (plurality
opinion).
   Weaving together these strands of authority, I interpret
the Sixth Amendment to require the appointment of coun-
sel only after the defendant’s prosecution has begun, and
then only as necessary to guarantee the defendant effec-
tive assistance at trial. Cf. McNeil, 501 U. S., at 177–178
(“The purpose of the Sixth Amendment counsel guaran-
tee—and hence the purpose of invoking it—is to protec[t]
the unaided layman at critical confrontations with his
expert adversary, the government, after the adverse posi-
tions of government and defendant have solidified with
respect to a particular alleged crime” (emphasis and al-
teration in original; internal quotation marks omitted)). It
follows that defendants in Texas will not necessarily be
entitled to the assistance of counsel within some specified
period after their magistrations. See ante, at 19 (opinion
of the Court) (pointing out the “analytical mistake” of
assuming “that attachment necessarily requires the occur-
rence or imminence of a critical stage”). Texas counties
need only appoint counsel as far in advance of trial, and as
far in advance of any pretrial “critical stage,” as necessary
to guarantee effective assistance at trial.         Cf. 

ibid.

6             ROTHGERY v. GILLESPIE COUNTY

                     ALITO, J., concurring

(“[C]ounsel must be appointed within a reasonable time
after attachment to allow for adequate representation at
any critical stage before trial, as well as at trial itself”
(emphasis added)).
   The Court expresses no opinion on whether Gillespie
County satisfied that obligation in this case. Petitioner
has asked us to decide only the limited question whether
his magistration marked the beginning of his “criminal
prosecutio[n]” within the meaning of the Sixth Amend-
ment. Because I agree with the Court’s resolution of that
limited question, I join its opinion in full.
                 Cite as: 

554 U. S. ____

 (2008)            1

                    THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
                         _________________

                          No. 07–440
                         _________________


 WALTER A. ROTHGERY, PETITIONER v. GILLESPIE
               COUNTY, TEXAS
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                        [June 23, 2008]

  JUSTICE THOMAS, dissenting.
  The Court holds today—for the first time after plenary
consideration of the question—that a criminal prosecution
begins, and that the Sixth Amendment right to counsel
therefore attaches, when an individual who has been
placed under arrest makes an initial appearance before a
magistrate for a probable-cause determination and the
setting of bail. Because the Court’s holding is not sup-
ported by the original meaning of the Sixth Amendment or
any reasonable interpretation of our precedents, I respect-
fully dissent.
                              I
   The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” The text of the
Sixth Amendment thus makes clear that the right to
counsel arises only upon initiation of a “criminal prosecu-
tio[n].” For that reason, the Court has repeatedly stressed
that the Sixth Amendment right to counsel “does not
attach until a prosecution is commenced.” McNeil v.
Wisconsin, 

501 U. S. 171, 175

 (1991); see also United
States v. Gouveia, 

467 U. S. 180, 188

 (1984) (“[T]he literal
language of the Amendment . . . requires the existence of
both a ‘criminal prosecutio[n]’ and an ‘accused’ ”). Echoing
2             ROTHGERY v. GILLESPIE COUNTY

                     THOMAS, J., dissenting

this refrain, the Court today reiterates that “[t]he Sixth
Amendment right of the ‘accused’ to assistance of counsel
in ‘all criminal prosecutions’ is limited by its terms.” Ante,
at 5 (footnote omitted).
  Given the Court’s repeated insistence that the right to
counsel is textually limited to “criminal prosecutions,” one
would expect the Court’s jurisprudence in this area to be
grounded in an understanding of what those words meant
when the Sixth Amendment was adopted. Inexplicably,
however, neither today’s decision nor any of the other
numerous decisions in which the Court has construed the
right to counsel has attempted to discern the original
meaning of “criminal prosecutio[n].” I think it appropriate
to examine what a “criminal prosecutio[n]” would have
been understood to entail by those who adopted the Sixth
Amendment.
                             A
  There is no better place to begin than with Blackstone,
“whose works constituted the preeminent authority on
English law for the founding generation.” Alden v. Maine,

527 U. S. 706, 715

 (1999). Blackstone devoted more than
100 pages of his Commentaries on the Laws of England to
a discussion of the “regular and ordinary method of pro-
ceeding in the courts of criminal jurisdiction.” 4 W. Black-
stone, Commentaries *289 (hereinafter Blackstone).
  At the outset of his discussion, Blackstone organized the
various stages of a criminal proceeding “under twelve
general heads, following each other in a progressive or-
der.” 

Ibid.

 The first six relate to pretrial events: “1. Ar-
rest; 2. Commitment and bail; 3. Prosecution; 4. Process; 5.
Arraignment, and it’s incidents; 6. Plea, and issue.” 

Ibid.

(emphasis added). Thus, the first significant fact is that
Blackstone did not describe the entire criminal process as
a “prosecution,” but rather listed prosecution as the third
step in a list of successive stages. For a more complete
                 Cite as: 

554 U. S. ____

 (2008)            3

                    THOMAS, J., dissenting

understanding of what Blackstone meant by “prosecution,”
however, we must turn to chapter 23, entitled “Of the
Several Modes of Prosecution.” 

Id., at *301

. There, Black-
stone explained that—after arrest and examination by a
justice of the peace to determine whether a suspect should
be discharged, committed to prison, or admitted to bail,

id.,

 at *296—the “next step towards the punishment of
offenders is their prosecution, or the manner of their for-
mal accusation,” 

id., at *301

 (emphasis added).
   Blackstone thus provides a definition of “prosecution”:
the manner of an offender’s “formal accusation.” The
modifier “formal” is 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. Black-
stone’s discussion of arrest, commitment, and bail makes
clear that a person could not be arrested and detained
without a “charge” or “accusation,” i.e., an allegation,
supported by probable cause, that the person had commit-
ted a crime. See 

id.,

 at *289–*300. But the accusation
justifying arrest and detention was clearly preliminary to
the “formal accusation” that Blackstone identified with
“prosecution.” See 

id., at *290, *318

.
   By “formal accusation,” Blackstone meant, in most
cases, “indictment, the most usual and effectual means of
prosecution.” 

Id., at *302

. Blackstone defined an “indict-
ment” as “a written accusation of one or more persons of a
crime or misdemeanor, preferred to, and presented upon
oath by, a grand jury.” 

Ibid.

 (emphasis deleted). If the
grand jury was “satisfied of the truth of the accusation,” it
endorsed the indictment, 

id.,

 at *305–*306, which was
then “publicly delivered into court,” 

id., at *306

, “after-
wards to be tried and determined,” 

id., at *303

, “before an
officer having power to punish the [charged] offence,” 2 T.
Cunningham, A New and Complete Law Dictionary (2d ed.
1771).
4             ROTHGERY v. GILLESPIE COUNTY

                    THOMAS, J., dissenting

   In addition to indictment, Blackstone identified two
other “methods of prosecution at the suit of the king.” 4
Blackstone *312. The first was presentment, which, like
an indictment, was a grand jury’s formal accusation “of an
offence, inquirable in the Court where it [was] presented.”
5 G. Jacob, The Law-Dictionary 278–279 (1811). The
principal difference was that the accusation arose from
“the notice taken by a grand jury of any offence from their
own knowledge or observation” rather than from a “bill of
indictment laid before them.” 4 Blackstone *301. The
second was information, “the only species of proceeding at
the suit of the king, without a previous indictment or
presentment by a grand jury.” 

Id., at *308

. After an
information was filed, it was “tried,” 

id., at *309

, in the
same way as an indictment: “The same notice was given,
the same process was issued, the same pleas were allowed,
the same trial by jury was had, the same judgment was
given by the same judges, as if the prosecution had origi-
nally 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
document—an indictment, presentment, or information—
upon which the defendant was to be tried in a court with
power to punish the alleged offense. And, significantly,
Blackstone’s usage appears to have accorded with the
ordinary meaning of the term. See 2 N. Webster, An
American Dictionary of the English Language (1828)
(defining “prosecution” as “[t]he institution or commence-
ment and continuance of a criminal suit; the process of
exhibiting formal charges against an offender before a
legal tribunal, and pursuing them to final judgment,” and
noting that “[p]rosecutions may be by presentment, infor-
mation or indictment”).
                  Cite as: 

554 U. S. ____

 (2008)              5

                      THOMAS, J., dissenting

                               B
  With Blackstone as our guide, it is significant that the
Framers used the words “criminal prosecutions” in the
Sixth Amendment rather than some other formulation
such as “criminal proceedings” or “criminal cases.” In-
deed, elsewhere in the Bill of Rights we find just such an
alternative formulation: In contrast to the Sixth Amend-
ment, the Fifth Amendment refers to “criminal case[s].”
U. S. Const., Amdt. 5 (“No person . . . shall be compelled in
any criminal case to be a witness against himself”).
  In Counselman v. Hitchcock, 

142 U. S. 547

 (1892), the
Court indicated that the 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
oneself “in any criminal case” could be invoked by a wit-
ness testifying before a grand jury. The Court rejected the
argument that there could be no “criminal case” prior to
indictment, reasoning that a “criminal case” under the
Fifth Amendment is much broader than a “criminal prose-
cutio[n]” under the Sixth Amendment. 

Id., at 563

.
  The following Term, the Court construed the phrase
“criminal prosecution” in a statutory context, and this
time the Court squarely held that a “prosecution” does not
encompass preindictment stages of the criminal process.
In Virginia v. Paul, 

148 U. S. 107

 (1893), the Court con-
sidered Revised Statute §643, which authorized removal to
federal court of any “ ‘criminal prosecution’ ” “ ‘commenced
in any court of a State’ ” against a federal officer. Id., at
115. The respondent, a deputy marshal, had been ar-
rested by Virginia authorities on a warrant for murder
and was held in county jail awaiting his appearance before
a justice of the peace “with a view to a commitment to
await the action of the grand jury.” Id., at 118. He filed a
petition for removal of “ ‘said cause’ ” to federal court. Ibid.
The question before the Court was whether a “ ‘criminal
prosecution’ ” had “ ‘commenced’ ” within the meaning of
6             ROTHGERY v. GILLESPIE COUNTY

                     THOMAS, J., dissenting

the statute at the time the respondent filed his removal
petition.
   The Court held that a criminal prosecution had not 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
examine whether there [was] good cause for believing that
the accused [was] guilty, and to commit him for trial before
the court having jurisdiction of the offence.” Ibid. Accord-
ingly, where “no indictment was found, or other action
taken, in the county court,” there was as yet no “ ‘criminal
prosecution.’ ” Id., at 119. The appearance before the jus-
tice of the peace did not qualify as a “prosecution”:
    “Proceedings before a 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 commencement of the prosecution, than is an
    arrest by an officer without a warrant for a felony
    committed in his presence.” Ibid.
                             C
   The foregoing historical summary is strong evidence
that the term “criminal prosecutio[n]” in the Sixth
Amendment refers to the commencement of a criminal suit
by filing formal charges in a court with jurisdiction to try
and punish the defendant. And on this understanding of
the Sixth Amendment, it is clear that petitioner’s initial
appearance before the magistrate did not commence a
“criminal prosecutio[n].” No formal charges had been
filed. The only document submitted to the magistrate was
the arresting officer’s affidavit of probable cause. The
                 Cite as: 

554 U. S. ____

 (2008)           7

                    THOMAS, J., dissenting

officer stated that he “ha[d] good reason to believe” that
petitioner was a felon and had been “walking around [an]
RV park with a gun belt on, carrying a pistol, handcuffs,
mace spray, extra bullets and a knife.” App. to Pet. for
Cert. 33a. The officer therefore “charge[d]” that petitioner
had “commit[ted] the offense of unlawful possession of a
firearm by a felon—3rd degree felony.” 

Ibid.

 The magis-
trate 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 com-
mencement of a criminal “prosecution.” Rather, it was the
preliminary accusation necessary to justify arrest and
detention—stages of the criminal process that Blackstone
placed before prosecution. The affidavit was not a plead-
ing that instituted a criminal prosecution, such as an
indictment, presentment, or information; and the magis-
trate to whom it was presented had no jurisdiction to try
and convict petitioner for the felony offense charged
therein. See Teal v. State, 

230 S. W. 3d 172, 174

 (Tex.
Crim. App. 2007) (“The Texas Constitution requires that,
unless waived by the defendant, the State must obtain a
grand jury indictment in a felony case”); Tex. Crim. Proc.
Code Ann., Arts. 4.05, 4.11(a) (West 2005). That is most
assuredly why the magistrate informed petitioner that
charges “will be filed” in district court. App. to Pet. for
Cert. 35a (emphasis added).
   The original meaning of the Sixth Amendment, then,
cuts decisively against the Court’s conclusion that peti-
tioner’s right to counsel attached at his initial appearance
before the magistrate. But we are not writing on a blank
slate: This Court has a substantial body of more recent
precedent construing the Sixth Amendment right to coun-
8               ROTHGERY v. GILLESPIE COUNTY

                       THOMAS, J., dissenting

sel.
                             II
   As the Court notes, our cases have “pegged commence-
ment” of a criminal prosecution, ante, at 5, to “the initia-
tion of adversary judicial criminal proceedings—whether
by way of formal charge, preliminary hearing, indictment,
information, or arraignment,” Kirby v. Illinois, 

406 U. S. 682, 689

 (1972) (plurality opinion). The Court has re-
peated this formulation in virtually every right-to-counsel
case decided since Kirby. Because Kirby’s formulation of
the attachment test has been accorded such precedential
significance, it is important to determine precisely what
Kirby said:
          “In a line of constitutional cases in this Court stem-
       ming back to the Court’s landmark opinion in Powell
       v. Alabama, 

287 U. S. 45

 [(1932)], it has been firmly
       established that a person’s Sixth and Fourteenth
       Amendment right to counsel attaches only at or after
       the time that adversary judicial proceedings have
       been initiated against him. See Powell v. Alabama,
       supra; Johnson v. Zerbst, 

304 U. S. 458

 [(1938)]; Ham-
       ilton v. Alabama, 

368 U. S. 52

 [(1961)]; Gideon v.
       Wainwright, 

372 U. S. 335

 [(1963)]; White v. Mary-
       land, 

373 U. S. 59

 [(1963) (per curiam)]; Massiah v.
       United States, 

377 U. S. 201

 [(1964)]; United States v.
       Wade, 

388 U. S. 218

 [(1967)]; Gilbert v. California,
       

388 U. S. 263

 [(1967)]; Coleman v. Alabama, 

399 U. S. 1

 [(1970)].
          “This is not to say that a defendant in a criminal
       case has a constitutional right to counsel only at the
       trial itself. The Powell case makes clear that the right
       attaches at the time of arraignment, and the Court
       has recently held that it exists also at the time of a
       preliminary hearing. Coleman v. Alabama, supra.
       But the point is that, while members of the Court
                 Cite as: 

554 U. S. ____

 (2008)            9

                    THOMAS, J., dissenting

    have differed as to existence of the right to counsel in
    the contexts of some of the above cases, all of those
    cases have involved points of time at or after the ini-
    tiation of adversary judicial criminal proceedings—
    whether by way of formal charge, preliminary hear-
    ing, indictment, information, or arraignment.” 

Id.,

 at
    688–689 (footnote omitted).
   It is noteworthy that Kirby did not purport to announce
anything new; rather, it simply catalogued what the Court
had previously held. And the point of the plurality’s dis-
cussion was that the criminal process contains stages
prior to commencement of a criminal prosecution. The
holding of the case was that the right to counsel did not
apply at a station house lineup that took place “before the
defendant had been indicted or otherwise formally charged
with any criminal offense.” 

Id., at 684

.
   Kirby gave five examples of events that initiate “adver-
sary judicial criminal proceedings”: formal charge, pre-
liminary hearing, indictment, information, and arraign-
ment. None of these supports the result the Court reaches
today. I will apply them seriatim. No indictment or in-
formation had been filed when petitioner appeared before
the magistrate. Nor was there any other formal charge.
Although the plurality in Kirby did not define “formal
charge,” there is no reason to believe it would have in-
cluded an affidavit of probable cause in that category.
None of the cases on which it relied stood for that proposi-
tion. Indeed, all of them—with the exception of White v.
Maryland, 

373 U. S. 59

 (1963) (per curiam), and Coleman
v. Alabama, 

399 U. S. 1

 (1970)—involved postindictment
proceedings. See Powell v. Alabama, 

287 U. S. 45, 49

(1932) (postindictment arraignment); Johnson v. Zerbst,

304 U. S. 458, 460

 (1938) (trial); Hamilton v. Alabama,

368 U. S. 52, 53, n. 3

 (1961) (postindictment arraignment);
Gideon v. Wainwright, 

372 U. S. 335, 337

 (1963) (trial);
10            ROTHGERY v. GILLESPIE COUNTY

                    THOMAS, J., dissenting

Massiah v. United States, 

377 U. S. 201

 (1964) (postin-
dictment interrogation); United States v. Wade, 

388 U. S. 218

, 219–220 (1967) (postindictment lineup); Gilbert v.
California, 

388 U. S. 263, 269

 (1967) (postindictment
lineup).
   Nor was petitioner’s initial appearance a preliminary
hearing. The comparable proceeding in Texas is called an
“examining trial.” See ante, at 9, n. 12. More importantly,
petitioner’s initial appearance was unlike the preliminary
hearings that were held to constitute “critical stages” in
White and Coleman, because it did not involve entry of a
plea, cf. 

White, supra, at 60

, and was nonadversarial, cf.

Coleman, supra, at 9

. There was no prosecutor present,
there were no witnesses to cross-examine, there was no
case to discover, and the result of the proceeding was not
to bind petitioner over to the grand jury or the trial court.
   Finally, petitioner’s initial appearance was not what
Kirby described as an “arraignment.” An arraignment, in
its traditional and usual sense, is a postindictment pro-
ceeding at which the defendant enters a plea. See, e.g.,
W. LaFave, J. Israel, & N. King, Criminal Procedure
§1.3(n), p. 19 (4th ed. 2004); 4 Blackstone *322. Although
the word “arraignment” is sometimes used to describe an
initial appearance before a magistrate, see LaFave, supra,
§1.3(j), at 16, that is not what Kirby meant when it said
that the right to counsel attaches at an “arraignment.”
Rather, it meant the traditional, postindictment arraign-
ment where the defendant enters a plea. This would be
the most reasonable assumption even if there were noth-
ing else to go on, since that is the primary meaning of the
word, especially when used unmodified.
   But there is no need to assume. Kirby purported to
describe only what the Court had already held, and none
of the cases Kirby cited involved an initial appearance.
Only two of the cases involved arraignments, and both
were postindictment arraignments at which the defendant
                    Cite as: 

554 U. S. ____

 (2008)                  11

                        THOMAS, J., dissenting

entered a plea. 

Hamilton, supra, at 53, n. 3

; Powell, 

287 U. S., at 49

. And the considerations that drove the Court’s
analysis in those cases are not present here. See 

id., at 57

(emphasizing that “from the time of their arraignment
until the beginning of their trial, when consultation, thor-
oughgoing investigation and preparation were vitally
important, the defendants did not have the aid of coun-
sel”); 

Hamilton, supra,

 at 53–55 (emphasizing that the
defendant entered a plea and was required to raise or
waive certain defenses). Kirby’s inclusion of “arraign-
ment” in the list of adversary judicial proceedings that
trigger the right to counsel thus provides no support for
the view that the right to counsel attaches at an initial
appearance before a magistrate.
                            III
   It is clear that when Kirby was decided in 1972 there
was no precedent in this Court for the conclusion that a
criminal prosecution begins, and the right to counsel
therefore attaches, at an initial appearance before a mag-
istrate. The Court concludes, however, that two subse-
quent decisions—Brewer v. Williams, 

430 U. S. 387

 (1977),
and Michigan v. Jackson, 

475 U. S. 625

 (1986)—stand for
that proposition. Those decisions, which relied almost
exclusively on Kirby, cannot bear the weight the Court
puts on them.1
   In Brewer, the defendant challenged his conviction for
murdering a 10-year-old girl on the ground that his Sixth
——————
  1 The Court also relies on McNeil v. Wisconsin, 

501 U. S. 171

 (1991),

to support its assertion that the right to counsel attaches upon an
initial appearance before a magistrate. Ante, at 10–11. But in McNeil,
the Court expressed no view whatsoever on the attachment issue.
Rather, it noted that the issue was “undisputed,” and “accept[ed] for
purposes of the present case, that . . . [the defendant’s] Sixth Amend-
ment right had attached.” 

501 U. S., at 175

. We do not ordinarily give
weight to assumptions made in prior cases about matters that were not
in dispute.
12            ROTHGERY v. GILLESPIE COUNTY

                     THOMAS, J., dissenting

Amendment right to counsel had been violated when
detectives elicited incriminating statements from him
while transporting him from Davenport, Iowa, where he
had been arrested on a warrant for abduction and “ar-
raigned before a judge . . . on the outstanding arrest war-
rant,” to Des Moines, where he was to be tried. 430 U. S.,
at 390–391. The principal issue was whether the defen-
dant had waived his right to have counsel present during
police questioning when he voluntarily engaged one of the
detectives in a “wide-ranging conversation.” Id., at 392.
He subsequently agreed to lead the detectives to the girl’s
body in response to the so-called “ ‘Christian burial
speech,’ ” in which one of the detectives told the defendant
that “ ‘the parents of this little girl should be entitled to a
Christian burial for the little girl who was snatched away
from them on Christmas [E]ve and murdered.’ ” Id., at
392–393. Not surprisingly, the parties vigorously disputed
the waiver issue, and it sharply divided the Court.
   In contrast, the question whether the defendant’s right
to counsel had attached was neither raised in the courts
below nor disputed before this Court. Nonetheless, the
Court, after quoting Kirby’s formulation of the test, offered
its conclusory observations:
       “There can be no doubt in the present case that ju-
     dicial proceedings had been initiated against Williams
     before the start of the automobile ride from Davenport
     to Des Moines. A warrant had been issued for his ar-
     rest, he had been arraigned on that warrant before a
     judge in a Davenport courtroom, and he had been
     committed by the court to confinement in jail. The
     State does not contend otherwise.” 

430 U. S., at 399

.
    Brewer’s cursory treatment of the attachment issue
demonstrates precisely why, when “an issue [is] not ad-
dressed by the parties,” it is “imprudent of us to address it
. . . with any pretense of settling it for all time.” Metro-
                 Cite as: 

554 U. S. ____

 (2008)           13

                    THOMAS, J., dissenting

politan Stevedore Co. v. Rambo, 

521 U. S. 121, 136

 (1997).
As an initial matter, the Court’s discussion of the facts
reveals little about what happened at the proceeding.
There is no indication, for example, whether it was adver-
sarial or whether the defendant was required to enter a
plea or raise or waive any defenses—facts that earlier
cases such as Hamilton, White, and Coleman had found
significant.
   Even assuming, however, that the arraignment in
Brewer was functionally identical to the initial appearance
here, Brewer offered no reasoning for its conclusion that
the right to counsel attached at such a proceeding. One is
left with the distinct impression that the Court simply saw
the word “arraignment” in Kirby’s attachment test and
concluded that the right must have attached because the
defendant had been “arraigned.” There is no indication
that Brewer considered the difference between an ar-
raignment on a warrant and an arraignment at which the
defendant pleads to the indictment.
   The Court finds it significant that Brewer expressed “ ‘no
doubt’ ” that the right had attached. Ante, at 19 (quoting

430 U. S., at 399

). There was no need for a “lengthy dis-
quisitio[n],” the Court says, because Brewer purportedly
“found the attachment issue an easy one.” Ante, at 18–19.
What the Court neglects to mention is that Brewer’s at-
tachment holding is indisputably no longer good law. That
is because we have subsequently held that the Sixth
Amendment right to counsel is “offense specific,” meaning
that it attaches only to those offenses for which the defen-
dant has been formally charged, and not to “other offenses
‘closely related factually’ to the charged offense.” Texas v.
Cobb, 

532 U. S. 162, 164

 (2001). Because the defendant in
Brewer had been arraigned only on the abduction warrant,
there is no doubt that, under Cobb, his right to counsel
had not yet attached with respect to the murder charges
that were subsequently brought. See 

532 U. S., at 184

14            ROTHGERY v. GILLESPIE COUNTY

                     THOMAS, J., dissenting

(BREYER, J., dissenting) (noting that under the majority’s
rule, “[the defendant’s] murder conviction should have
remained undisturbed”). But the Court in Cobb did not
consider itself bound by Brewer’s implicit holding on the
attachment question. See 

532 U. S., at 169

 (“Constitu-
tional rights are not defined by inferences from opinions
which did not address the question at issue”). And here,
as in Cobb, Brewer did not address the fact that the ar-
raignment on the warrant was not the same type of ar-
raignment at which the right to counsel had previously
been held to attach, and the parties did not argue the
question. Brewer is thus entitled to no more precedential
weight here than it was in Cobb.
   Nor does Jackson control. In Jackson, as in Brewer, the
attachment issue was secondary. The question presented
was “not whether respondents had a right to counsel at
their postarraignment, custodial interrogations,” 475
U. S., at 629, but “whether respondents validly waived
their right to counsel,” id., at 630. And, as in Brewer, the
Court’s waiver holding was vigorously disputed. See 475
U. S., at 637–642 (Rehnquist, J., dissenting); see also

Cobb, supra,

 at 174–177 (KENNEDY, J., concurring) (ques-
tioning Jackson’s vitality). Unlike in Brewer, however, the
attachment question was at least contested in Jackson—
but barely. With respect to respondent Jackson, the State
conceded the issue. 

Jackson, supra, at 629, n. 3

. And with
respect to respondent Bladel, the State had conceded the
issue below, see People v. Bladel, 

421 Mich. 39, 77

, 

365 N. W. 2d 56, 74

 (1984) (Boyle, J., dissenting), and raised it
for the first time before this Court, devoting only three
pages of its brief to the question, see Brief for Petitioner in
Michigan v. Bladel, O. T. 1985, No. 84–1539, pp. 24–26.
   The Court disposed of the issue in a footnote. See Jack-
son, supra, at 629–630, n. 3. As in Brewer, the Court did
not describe the nature of the proceeding. It stated only
that the respondents were “arraigned.” 475 U. S., at 627–
                     Cite as: 

554 U. S. ____

 (2008)                    15

                         THOMAS, J., dissenting

628. The Court phrased the question presented in terms
of “arraignment,” 

id., at 626

 (“The question presented by
these two cases is whether the same rule applies to a
defendant who has been formally charged with a crime
and who has requested appointment of counsel at his
arraignment”), and repeated the words “arraignment” or
“postarraignment” no fewer than 35 times in the course of
its opinion.
   There is no way to know from the Court’s opinion in
Jackson whether the arraignment at issue there was the
same type of arraignment at which the right to counsel
had been held to attach in Powell and Hamilton. Only
upon examination of the parties’ briefs does it become
clear that the proceeding was in fact an initial appearance.
But Jackson did not even acknowledge, much less “flatly
rejec[t] the distinction between initial arraignment and
arraignment on the indictment.” Ante, at 9. Instead, it
offered one sentence of analysis—“In view of the clear
language in our decisions about the significance of ar-
raignment, the State’s argument is untenable”—followed
by a string citation to four cases, each of which quoted
Kirby. 475 U. S., at 629–630, n. 3. For emphasis, the
Court italicized the words “or arraignment” in Kirby’s
attachment test. 475 U. S., at 629, n. 3 (internal quotation
marks omitted).
   The only rule that can be derived from the face of the
opinion in Jackson is that if a proceeding is called an
“arraignment,” the right to counsel attaches.2 That rule
——————
  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 formally lodged accusation, and has restrictions imposed on his
liberty in aid of the prosecution, the State’s relationship with the
defendant has become solidly adversarial.” Ante, at 9. But Jackson
said nothing of the sort.
     Moreover, even looking behind the opinion, Jackson does not sup-
16              ROTHGERY v. GILLESPIE COUNTY

                        THOMAS, J., dissenting

would not govern this case because petitioner’s initial
appearance was not called an “arraignment” (the parties
refer to it as a “magistration”). And that would, in any
case, be a silly rule. The Sixth Amendment consequences
of a proceeding should turn on the substance of what
happens there, not on what the State chooses to call it.
But the Court in Jackson did not focus on the substantive
distinction between an initial arraignment and an ar-
raignment on the indictment. Instead, the Court simply
cited Kirby and left it at that. In these circumstances, I
would recognize Jackson for what it was—a cursory
treatment of an issue that was not the primary focus of
the Court’s opinion. Surely Jackson’s footnote must yield
to our reasoned precedents.
   And our reasoned precedents provide no support for the
conclusion that the right to counsel attaches at an initial
appearance before a magistrate. Kirby explained why the
right attaches “after the initiation of adversary judicial
criminal proceedings”:
       “The initiation of judicial criminal proceedings is far
     from a mere formalism. It is the starting point of our
——————
port the result the Court reaches today. Respondent Bladel entered a
“not guilty” plea at his arraignment, see Brief for Petitioner in Michi-
gan v. Bladel, O. T. 1985, No. 84–1539, p. 4, and both Hamilton v.
Alabama, 

368 U. S. 52

 (1961), and White v. Maryland, 

373 U. S. 59

(1963) (per curiam), had already held that a defendant has a right to
counsel when he enters a plea. The Court suggests that this fact is
irrelevant because the magistrate in Bladel’s case “had no jurisdiction
to accept a plea of guilty to a felony charge.” Ante, at 10, n. 13. But
that distinction does not appear in either Hamilton or White. See

Hamilton, supra, at 55

 (“Only the presence of counsel could have
enabled this accused to know all the defenses available to him and to
plead intelligently”); 

White, supra, at 60

 (“[P]etitioner entered a plea
before the magistrate and that plea was taken at a time when he had
no counsel”). Thus, the most that Jackson can possibly be made to
stand for is that the right to counsel attaches at an initial appearance
where the defendant enters a plea. And that rule would not govern this
case because petitioner did not enter a plea at his initial appearance.
                 Cite as: 

554 U. S. ____

 (2008)           17

                    THOMAS, J., dissenting

    whole system of adversary criminal justice. For it is
    only then that the government has committed itself to
    prosecute, and only then that the adverse positions of
    government and defendant have solidified. It is then
    that a defendant finds himself faced with the prosecu-
    torial forces of organized society, and immersed in the
    intricacies of substantive and procedural criminal law.
    It is this point, therefore, that marks the commence-
    ment of the ‘criminal prosecutions’ to which alone the
    explicit guarantees of the Sixth Amendment are ap-
    plicable.” 406 U. S., at 689–690 (plurality opinion).
  None of these defining characteristics of a “criminal
prosecution” applies to petitioner’s initial appearance
before the magistrate. The initial appearance was not an
“adversary” proceeding, and petitioner was not “faced with
the prosecutorial forces of organized society.” Instead, he
stood in front of a “little glass window,” filled out various
forms, and was read his Miranda rights. Brief for Re-
spondent 5. The State had not committed itself to prose-
cute—only a prosecutor may file felony charges in Texas,
see Tex. Code Ann., Crim. Proc. Arts. 2.01, 2.02 (West
2005), and there is no evidence that any prosecutor was
even aware of petitioner’s arrest or appearance. The
adverse positions of government and defendant had not
yet solidified—the State’s prosecutorial officers had not
yet decided whether to press charges and, if so, which
charges to press. And petitioner was not immersed in the
intricacies of substantive and procedural criminal law—
shortly after the proceeding he was free on bail, and no
further proceedings occurred until six months later when
he was indicted.
  Moreover, the Court’s holding that the right to counsel
attaches at an initial appearance is untethered from any
interest that we have heretofore associated with the right
to counsel. The Court has repeatedly emphasized that
18            ROTHGERY v. GILLESPIE COUNTY

                     THOMAS, J., dissenting

“[t]he purpose of the constitutional guaranty of a right to
counsel is to protect an accused from conviction resulting
from his own ignorance of his legal and constitutional
rights.” Johnson, 

304 U. S., at 465

. The “core purpose” of
the right, the Court has said, is to “assure ‘Assistance’ at
trial, when the accused [is] confronted with both the intri-
cacies of the law and the advocacy of the public prosecu-
tor.” United States v. Ash, 

413 U. S. 300, 309

 (1973). The
Court has extended the right to counsel to pretrial events
only when the absence of counsel would derogate from the
defendant’s right to a fair trial. See, e.g., Wade, 

388 U. S., at 227

.
   Neither petitioner nor the Court identifies any way in
which petitioner’s ability to receive a fair trial was under-
mined by the absence of counsel during the period between
his initial appearance and his indictment. Nothing during
that period exposed petitioner to the risk that he would be
convicted as the result of ignorance of his rights. Instead,
the gravamen of petitioner’s complaint is that if counsel
had been appointed earlier, he would have been able to
stave off indictment by convincing the prosecutor that
petitioner was not guilty of the crime alleged. But the
Sixth Amendment protects against the risk of erroneous
conviction, not the risk of unwarranted prosecution. See
Gouveia, 

467 U. S., at 191

 (rejecting the notion that the
“purpose of the right to counsel is to provide a defendant
with a preindictment private investigator”).
   Petitioner argues that the right to counsel is implicated
here because restrictions were imposed on his liberty
when he was required to post bail. But we have never
suggested that the accused’s right to the assistance of
counsel “for his defence” entails a right to use counsel as a
sword to contest pretrial detention. To the contrary, we
have flatly rejected that notion, reasoning that a defen-
dant’s liberty interests are protected by other constitu-
tional guarantees. See 

id., at 190

 (“While the right to
                  Cite as: 

554 U. S. ____

 (2008)           19

                     THOMAS, J., dissenting

counsel exists to protect the accused during trial-type
confrontations with the prosecutor, the speedy trial right
exists primarily to protect an individual’s liberty interest,”
including the interest in reducing the “ ‘impairment of
liberty imposed on an accused while released on bail’ ”).
                           IV
  In sum, neither the original meaning of the Sixth
Amendment right to counsel nor our precedents interpret-
ing the scope of that right supports the Court’s holding
that the right attaches at an initial appearance before a
magistrate. Because I would affirm the judgment below, I
respectfully dissent.