The Bright Line’s Dark Zone: Pre-Charge Attachment of the 6th Amendment Right to Counsel

34 Pages Posted: 12 Aug 2016 Last revised: 29 Sep 2016

See all articles by Steven J. Mulroy

Steven J. Mulroy

University of Memphis - Cecil C. Humphreys School of Law

Date Written: August 10, 2016


In this Article, Prof. Mulroy discusses an unsettled issue which arises with some frequency in the federal courts: whether the Sixth Amendment right to counsel can ever apply prior to the filing of a formal charge by a prosecutor. There are a number of situations - most notably, pre-indictment plea negotiations involving the prosecutor - where a defendant most decidedly needs the assistance of counsel, even before formal charges are filed. Language in Supreme Court cases has suggested that the right does not attach until a prosecutor files a charge in court, or the defendant appears before a magistrate. Some lower courts have relied on this language to fashion a “bright-line rule” preventing Sixth Amendment protection prior to formal charges being filed. But these Supreme Court cases were decided prior to recent rulings by the Court that a Sixth Amendment ineffective assistance of counsel claim could cover plea negotiations. The circuit courts are split on this issue, with some accepting and some rejecting the notion of a bright-line rule.

This Article argues that a careful examination of the relevant Supreme Court opinions, the text of the Sixth Amendment, and the underlying purpose of the Amendment’s right to counsel all argue for a more flexible approach. It also analogizes from case law interpreting Model Rule 4.2 of the Rules of Professional Conduct, the so-called “no contact” rule. It proposes a new rule: in addition to being triggered by a formal charge or appearance before a judge, the Sixth Amendment right to counsel also applies where a prosecutor has had contact with a defendant about the substance of the case (other than as a witness), either directly or through counsel. Among other instances, this rule would apply to pre-charge negotiations about a plea deal or grant of immunity; to communications concerning the defendant’s grand jury testimony; and to custodial interrogation where the prosecutor was personally involved.

Suggested Citation

Mulroy, Steven J., The Bright Line’s Dark Zone: Pre-Charge Attachment of the 6th Amendment Right to Counsel (August 10, 2016). University of Memphis Legal Studies Research Paper No. 159, Available at SSRN: or

Steven J. Mulroy (Contact Author)

University of Memphis - Cecil C. Humphreys School of Law ( email )

One North Front Street
Memphis, TN 38103-2189
United States

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