The current right-to-counsel doctrine was developed in the 1970's. It created a bright-line rule still in effect today. The right to counsel attaches only at "critical stages" of a criminal prosecution. Under this critical stage doctrine, the right to counsel only attaches after the initiation of formal adversary proceedings and only applies to confrontations between the accused and the prosecution or law enforcement. In the years following the Supreme Court's development of the critical stage doctrine, national trends of mandatory sentencing and sentencing guidelines revolutionized criminal procedure and dramatically altered the roles of the system's key players.
Now, defense counsel's role outside the courtroom is substantially amplified. Among other things, counsel negotiates about the prosecutor's charging decisions, bargains over plea agreements, mediates between cooperating defendants and the government, assists the defendant in confronting the probation officer, and advocates in connection with proceedings ancillary to sentence. Applying the bright-line critical stage doctrine to these new realities of criminal practice creates illogical and patently unfair results. This Article shows how the critical stage doctrine has failed and proposes a new approach to the Sixth Amendment counsel guarantee, one that will assure fairness in modem criminal procedure.
Northwestern University Law Review
Pamela R. Metzger, Beyond the Bright Line: A Contemporary Right-to-Counsel Doctrine, 97 Nw. U. L. Rev. 1635 (2002)