An important question for the courts is determining the right time and stage for the defendant to be assisted. Some stages in the process are presumed to be more important than others. This section will examine when assistance is needed from attorneys. Ideally, a defendant would retain a lawyer at every stage, but cost is a factor worthy of consideration.

7.9.1 Critical Stages of Criminal Justice Process

In White v. Maryland, 373 U.S. 59 (1963), the Court found that defendants are entitled to counsel at any critical stage of the proceeding. This is defined as a stage in which the defendant is compelled to make a decision that may later formally be used against them. The Court has found the following court procedures to be critical stages:

• The initial appearance in which the defendant enters a nonbinding plea–White v. Maryland, 373 U.S.59 (1963).
• A preliminary hearing–Coleman v. Alabama, 399 U.S. 1 (1970).
• A lineup that includes a previously indicted defendant–Wade v. United States, 388 U.S. 218 (1967) and Gilbert v. California, 388 U.S. 263 (1967).

7.9.2 During Other Proceedings

The Court has extended the right to counsel to psychiatric examinations, juvenile delinquency proceedings (In re Gault, 1967), civil commitments proceedings (Stefan S., 1985), and probation and parole hearings (see below). Further, the court in Estelle v. Smith, 451 U.S. 454 (1981), held that a defendant charged with a capital crime and ordered by the court to be examined by a psychiatrist to evaluate possible future dangerousness was entitled to consult with counsel. Similarly, in Satterwhite v. Texas, 486 U.S. 249 (1988), the Court found prejudicial error occurs when defense counsel was not appointed to represent a defendant subjected to a psychiatric evaluation. The Court further held that counsel must be made aware of the projected psychiatric evaluation before it occurs.

7.9.3 During Probation and Parole Revocation Hearings

In Mempa v. Rhay, 389 U.S. 128 (1967), 17-year-old Jerry Douglas Mempa was placed on probation for two years after he pleaded guilty to “joyriding.” About four months later, the prosecutor moved to have the petitioner’s probation revoked, alleging that Mempa had committed a burglary while on probation. Mempa, who was not represented by counsel at the probation revocation hearing, admitted being involved in the burglary. The court revoked his probation based on his admission to the burglary. The U.S. Supreme Court held that Mempa should have had counsel to assist him in his hearing.

Five years later, in Gagnon v. Scarpelli, 411 U.S. 778 (1973), the state sought to revoke the defendant’s probation. Originally, Gagnon was sentenced to fifteen years of imprisonment for armed robbery, but the judge suspended the sentence’s imposition and placed him on seven years of probation instead. The Court found that the probation revocation hearing did not meet due process standards. Because a probation revocation involves a loss of liberty, the probationer was entitled to due process. The Court did not adopt a rule that all probationers must have the assistance of counsel in every revocation hearings but rather stated:

The decision as to the need for counsel must be made on a case-by-case basis. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal shall be stated succinctly in the record. (Gagnon v. Scarpelli, 1973)