Before Formal Proceedings Begin

Fundamentals of Procedural Law by Adam J. McKee

We’ve been journeying through the concept of the Right to Counsel, an integral aspect of the criminal justice system. Now, we’ll delve into how this right comes into play before formal proceedings even begin, also known as the pre-charge phase. This is the time from when you first interact with law enforcement to when you are officially charged with a crime.

Interaction with Law Enforcement

During your interactions with law enforcement, such as during a police stop or arrest, you have the right to have a lawyer present. This is based on the landmark case Miranda v. Arizona, 384 U.S. 436 (1966). The Supreme Court held that before the police can question you, they must inform you of your rights—including the right to remain silent and the right to have an attorney present. This is what’s known as your “Miranda rights.” If you express the desire to have a lawyer, questioning must stop until your lawyer is present.

Line-ups and Other Identification Procedures

Line-ups, show-ups, and photo arrays might sound like strange words if you’re not familiar with them. They are all ways that police try to identify someone who might have committed a crime. Let’s take a moment to define each one:

  1. A line-up is when several individuals, including the suspect and others who look similar, are lined up. A witness or victim is then asked to identify the suspect from this line-up.
  2. A show-up is a bit different. In a show-up, the suspect is shown individually to a witness or a victim shortly after a crime has been committed. This usually happens near the crime scene and is used when time is of the essence.
  3. A photo array (or photo lineup) is like a lineup, but it’s done with photos instead of people. The witness or victim is presented with a series of photos, one of which is the suspect, and the others are similar-looking individuals.

These identification procedures are crucial in solving crimes, but they must be conducted fairly. That’s where the right to counsel comes in. You have the right to have a lawyer present during these procedures.

This right was confirmed in the Supreme Court case of United States v. Wade, 388 U.S. 218 (1967). This case made it clear that a pre-indictment line-up (a line-up after you’ve been formally accused of a crime) is a critical stage of the criminal process. At this point, you’re entitled to have your attorney with you.

If this right is violated, meaning if you’re not allowed to have your lawyer with you during these procedures, it can lead to serious consequences for the prosecution. It could result in the identification evidence, like the results of the line-up or show-up, being suppressed or not allowed to be used in court. This emphasizes how essential the right to counsel is during the identification procedures.

Grand Jury Proceedings

When it comes to grand jury proceedings, your right to counsel functions a bit differently. In the case United States v. Mandujano, 425 U.S. 564 (1976), it was established that a person called before a grand jury has the right to consult with a lawyer outside the grand jury room but does not have the right to have the lawyer present in the grand jury room.

Pre-Charge Negotiations

The right to counsel is also important during pre-charge negotiations. These are discussions that can happen with the prosecutor before any formal charges are brought. An attorney can help protect your interests during these critical conversations, ensuring that you don’t unintentionally incriminate yourself or agree to unfavorable terms.


As we’ve explored in this section, the right to counsel is not just a courtroom right. It begins far earlier in the process, from the moment of your first interaction with law enforcement. This early legal representation can have a significant impact on the outcome of your case, influencing how evidence is gathered, how you are treated, and the course of potential negotiations. As we transition to discussing the right to counsel after formal proceedings begin, it’s important to remember that this right is your shield and guide, every step of the way.


Before formal proceedings begin is a crucial phase in the criminal justice system, from initial interactions with law enforcement to pre-charge negotiations. Here, we delve into the essential role of the right to counsel in this early stage. This right is confirmed in police questioning and during identification procedures such as line-ups, show-ups, and photo arrays, established by landmark rulings like Miranda v. Arizona and United States v. Wade.

In grand jury proceedings, the right to counsel functions slightly differently: a person has the right to consult with a lawyer outside the grand jury room but not inside. Pre-charge negotiations with prosecutors also necessitate the presence of an attorney to ensure the protection of individual rights.

Violations of these rights can lead to severe consequences for the prosecution, including potential suppression of evidence. Ultimately, the right to counsel is not just a courtroom right; it provides a protective shield from the very onset of law enforcement interaction, significantly influencing the outcome of a case.



  • Miranda v. Arizona, 384 U.S. 436 (1966).
  • United States v. Wade, 388 U.S. 218 (1967).
  • United States v. Mandujano, 425 U.S. 564 (1976).
Modification History

File Created:  08/08/2018

Last Modified:  07/18/2023

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