Do You Have a Right to a Lawyer Before You Are Indicted?

Update (October 2026): The Supreme Court did not take the case. It denied review in Turner v. United States on June 24, 2019. Docket No. 18-106. The Sixth Circuit's ruling against Turner stands.

Generally, no. Your Sixth Amendment right to a lawyer begins when formal criminal proceedings start, such as an indictment. Turner v. United States asked whether it could start earlier, when the government makes a plea offer before indictment. The courts said no, and the Supreme Court declined to take up the question. You can still hire a lawyer at any time, and doing so early is wise.

If you are charged with a crime, you have the right to a lawyer, and the court will appoint one if you cannot afford it. The right to counsel has been in the Bill of Rights since 1791. The right to a court-appointed lawyer came later: in federal cases in 1938 (Johnson v. Zerbst) and in state felony cases in 1963 (Gideon v. Wainwright). The harder question is when the right starts.

The Sixth Amendment Right to Counsel

The Sixth Amendment says: "In all criminal prosecutions, the accused shall enjoy the right...to have...[the] Assistance of Counsel for his defense." That means the right to effective counsel.

Why It Matters for an IAC Claim

Right to Counsel

You can raise a claim of ineffective assistance of counsel (IAC), meaning your lawyer's work fell below what the Constitution requires, in a motion under 28 U.S.C. § 2255. But if the lawyer's mistake happened before your right to counsel began, you have no constitutional claim.

When the Right Begins

In Rothgery v. Gillespie County, 554 U.S. 191 (2008), the Supreme Court said the right attaches when "a prosecution is commenced," which happens at or after "the initiation of adversary judicial criminal proceedings."

Once it attaches, you are entitled to effective counsel at every "critical stage." In 2012, the Court held in Missouri v. Frye and Lafler v. Cooper that plea negotiations are a critical stage. The Court called plea bargaining "central" to the criminal justice system.

The Facts of Turner

Turner was arrested by Tennessee police for the armed robbery of four businesses and hired a lawyer in the state case. Federal prosecutors told the lawyer they would bring federal charges, and that a plea offer would stay open until a federal indictment. Turner says his lawyer never told him about the offer.

After a federal grand jury indicted him, Turner hired a new lawyer and took a plea deal. That deal required about 10 more years in prison than the first offer.

Turner argued his first lawyer was ineffective for not telling him about the earlier, better offer. The Sixth Circuit rejected the claim because his right to counsel had not attached before the federal indictment. Turner asked the Supreme Court to decide whether a pre-indictment plea offer triggers the right to counsel.

When this post was written, the original article noted that the Sixth Amendment's own words seem broader than the Supreme Court decisions limiting it to after formal charges begin. The open question was whether an "exploding" plea offer, one that expires at indictment, is enough to trigger the right to counsel before indictment. As noted above, the Court declined to decide it.

What This Means for You

If you learn you are under federal investigation, for example through a target letter or a visit from agents, talk to a lawyer early. Talking to the government without one can hurt you. If you changed lawyers because of problems with your first one, you may have an IAC claim, depending on when the problems happened. A § 2255 motion raising that kind of claim generally must be filed within one year, usually counted from the date the conviction became final. 28 U.S.C. § 2255(f).

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.