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45 Minn. L. Rev. 771 (1960-1961)
Right to Counsel before Arraignment

handle is hein.journals/mnlr45 and id is 791 raw text is: Right to Counsel Before Arraignment William M. Beaney* INTRODUCTION A fascinating aspect of the study of legal institutions is the task of identifying legal doctrines or practices that are in the process of rapid change. Normally, a search is most fruitful when one con- centrates on those rules or procedures that adversely affect an im- portant and usually vocal group within society, a group that is seek- ing to express its political power initially through the ballot and eventually through new legislation. The ultimate triumph of work- men's compensation laws and legal recognition of the right of col- lective bargaining are obvious examples of this type of legal change. Less striking, but in many ways more revealing of the value system of a society, are changes in law not produced by political action expressing group or class interests. Changes in the criminal law, such as the abolition of the death penalty in many jurisdictions, the development of parole and rehabilitation practices, and efforts to increase the fairness of the criminal trial are clearly of this latter nature. So too, is the increasing concern with the responsibility of the state to determine when an accused should have counsel- and, more particularly, whether the assistance of counsel should arise at a stage preceding arraignment for the purpose of pleading to the information or indictment-the particular question to be examined here.'. I. THE BACKGROUND To appreciate the nature of the issue, the problem of when an accused should have counsel must be placed in the context of the history of the right to counsel itself. It should be remembered that *Professor of Politics, Princeton University. 1. The term preliminary hearing is used throughout this article to re- fer to the proceeding following arrest when a felony defendant is taken be- fore a magistrate who determines whether or not there is sufficient evi- dence to warrant holding the defendant for further action, sets bail, and advises the defendant concerning his rights. Throughout this paper no ref- erence will be made to the problems of a defendant in misdemeanor cases where denial of appointed counsel is customary in the United States. For an excellent discussion of this problem, see Rahl, The Right to Counsel In Misdemeanor Cases, 48 CALIF. L. REv. 501 (1960).

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