The Sixth Amendment of the United States Constitution guarantees criminal defendants the right to be represented by counsel during all “critical stages” of his or her proceedings. In the early 1980s, Congress established federal pretrial services throughout the country to interview defendants charged in federal court to ensure that they would receive a fair and reasonable bail based upon their previous criminal history and ties to the local community. While the intended purpose of these interviews is to provide as much pertinent information as possible to the magistrate determining bail, the content of these interviews have also been used to impeach defendants during trial and/or in determining a sentence for a defendant adjudicated guilty. While many federal district courts voluntarily allow defense counsel to be present during the pretrial services interview, it is not considered a “critical stage,” and thus a defendant is not guaranteed the right to counsel despite the heightened consequences of the interview.
This article proposes that the current status quo regarding pretrial services in untenable and in conflict with the Sixth Amendment right to assistance of counsel. It suggests two potential solutions to the problem. The first is to recognize that pretrial services interviews do not comport with the text and statutory history of the federal pretrial services program. The second, and preferred, solution is to assert that all pretrial services interviews are a “critical stage,” and require that all federal district courts guarantee each defendant the right to counsel during those interviews.