"FROM THE CLASSROOM"
By Ray Hill, Professor Emeritus, Santa Rosa Junior College

“Its ‘402’ time, officer” - “Who Wins, You or Defense counsel”? Note: 402(b) E.C. – A pre-trial court hearing to determine the admissibility of an admission or confession.

When the Sixth Amendment Applies to a Voluntary Interview.

This is the fifth in a series of mini-articles covering basic Miranda and Confession Law. This review is equally applicable to detectives and those generalists who are assigned to investigate their own cases. The question for this article is:

A suspect is charged with financial fraud of his 90-year old uncle for whom he is a caretaker. A criminal complaint was filed in Superior Court and an arrest warrant issued in his name. Wishing to gain an out-of-custody statement before arraignment, detectives ask the suspect to come to the station for an interview. He consents. When he arrives at the Sheriff’s Station, he is given a Beheler admonition (“You are not under arrest”; “You are free to leave at anytime”; “You may choose not to answer any questions”). The suspect agrees to talk to with detectives. During a conversational 45-minute interview, incriminating statements are made. The suspect leaves and goes home. He is arrested the following day on the arrest warrant.

Statements obtained will be:  ADMISSIBLE  or  INADMISSIBLE? 
 

     Inadmissible. If the suspect (now defendant) has been charged with a crime via criminal complaint, indictment, or petition, but has not yet been arrested and arraigned, there is still a Sixth Amendment right to counsel. This is because adversarial proceedings have commenced. The Sixth Amendment needs to be cleared through a Miranda admonition wherein the defendant is advised of the right to have an attorney present, etc. during questioning and waives that right. Examples:

Defendant was indicted for conspiracy to distribute methamphetamine. Officers went to his apartment and engaged in voluntary conversation about the crime without a Miranda warning. Incriminating statements were obtained. He was not arrested. Once the defendant had been formally charged, a waiver of counsel has to be “cleared” through a Miranda warning (U.S. v. Fellers (2004) 540 U.S. 519).

A criminal complaint was filed against the defendant for financial fraud of an elder. Before her arraignment she was asked to meet with the prosecutor. She had not yet been appointed counsel by the court. An interview was conducted and incriminating statements obtained.  Defendant has the right to counsel for any “charged” crime” and a waiver of the Sixth Amendment through a Miranda warning must be sought (Peo. v. Viray (2005) 134 Cal App. 4th 118).

Under “limited circumstances”, the U.S. Supreme Court has ruled that it is permissible for officers to proactively question a defendant after arraignment and appointment of counsel on a charged crime. Example:

* Defendant was arrested for robbery/murder. He waived his Miranda rights and confessed. Three days later, the defendant was arraigned and referred to the Public Defender’s Office for representation. The same afternoon investigators re-contacted the defendant in jail and obtained a second Miranda waiver. He accompanied investigators to the crime scene and wrote “an inculpatory letter of apology to the victim’s widow”. After an initial Miranda waiver (including counsel), officers may re-question the defendant about crimes for which he or she has already been appointed counsel. During a renewed Miranda admonition, one is advised of the right to have an attorney present before or during questioning and is in a position to invoke that right. “A defendant who does not want to speak to the police without counsel present need only say as much when he is approached and given the Miranda warnings” (Montejo v. Louisiana (2009) 556 U.S. 778).

Note: The first questioning in the Montejo case was done under a Miranda admonition and waiver of the presence of counsel. If Miranda rights have been asserted and charging/arraignment takes place, the Sixth Amendment right to counsel attaches. Police cannot reinitiate questioning on the charged crime. An exception would be if the defendant voluntarily reinitiates questioning (See Article #4 in this series). The follow up questioning is first cleared though a Miranda admonition and waiver.

Also take a look at Robert Phillip’s “Miranda and Confession Law – The Fifth Amendment”, April 2022, Pages 217, 263, 310, 317 and 548.

Stay Safe!

RH