Cardozo Law Review
Abstract
Despite the potentially devastating consequences of pretrial incarceration and the complexity of modern bail applications, many individuals charged with crimes across the country are not appointed counsel to guide them through their bail hearings. Traditionally, application of the Sixth Amendment’s right to counsel in various pretrial proceedings has been evaluated under the “critical stage” framework, finding defense counsel necessary when a proceeding puts one’s trial rights at risk or is sufficiently trial-like—i.e., adversarial and requiring complex legal arguments. In the absence of a clear Supreme Court ruling, states have been left to conduct their own analysis, with many declining to find that bail hearings are a “critical stage” necessitating the presence of defense counsel. This Note pushes for a more expansive approach to the Sixth Amendment—one that moves beyond an exclusive focus on trial rights to a more holistic view of criminal prosecution that includes pretrial incarceration. This approach applies the traditional “critical stage” framework to a modern understanding of the stakes involved in bail hearings and pretrial incarceration—significant legal prejudice and personal harm—and the procedural and legal complexities of bail applications. Recognizing pretrial incarceration as a harm in itself, rather than simply its effect on an ultimate trial, is the better approach when applying critical stage analysis to a bail hearing.
Disciplines
Constitutional Law | Courts | Criminal Procedure
Recommended Citation
Gemma Sunnergren,
A “Consistent and Ongoing” Right: The Sixth Amendment Right to Counsel at Initial Bail Hearings,
47
Cardozo L. Rev.
1473
(2026).
Available at:
https://larc.cardozo.yu.edu/clr/vol47/iss4/21