CL Ch. 23 Right to Counsel

Question 2

The fifth amendment right to counsel applies whenever a suspect is subjected to custodial interrogation.

In contrast, the (blank) right to counsel prevents police interference with an accused’s legal defense- whether or not the defendant is in custody.

Answer 2

Article 12

Note: only arraignment or indictment qualifies; the fact that the defendant is the subject of a complaint to arrest warrant does not trigger Article 12 rights.

Question 3

Scope of Article 12 Right to Counsel:

A violation of Article 12 occurs when the police, by themselves or through an agent:

Answer 3

deliberately obtain incriminating remarks about a defendants pending charges.

Note: only arraignment or indictment qualifies; the fact that the defendant is the subject of a complaint or arrest warrant does not trigger Article 12 rights.

Question 4

In Massachusetts, when does Article 12 spring into existence?

Answer 4

“at and after arraignment, or indictment by a grand jury.”

Question 5

The Article12 right to counsel may only be breached by:

Answer 5

law enforcement officials or their agents.

When the defendant makes incriminating statements to someone with no police connection, Article 12 does not apply.

ex. newspaper reporter could not breach the defendant’s right to counsel when he interviewed him at the Plymouth HOC awaiting trial. The reporter had no connection to law enforcement.

Question 6

Article 12 only offers “offense specific” protection. This means the prohibition against questioning only extends to offense for which:

Answer 6

the defendant has been arraigned or indicted.

*a suspect may still be interrogated about unrelated offenses.

Question 7

Article 12 only offers “offense specific” protection. This means the prohibition against questioning only extends to offense for which the defendant has been arraigned or indicted.

May a suspect be questioned about unrelated offenses?

Answer 7

Yes.

ex. while the defendant was being held for armed robbery, police interrogated him concerning an unrelated truck larceny; with respect to the uncharged truck incident, the defendant lacked Article 12 right to counsel, so his Miranda waiver at the jail was valid.

Question 8

Article 12: Right to Counsel

-Custody is IRRELEVANT

-Arraignment or Indictment
AND Interrogation (pending case only)

• Counsel present OR, defendant initiates and Miranda Waiver

-Protects a lawyer client
relationship

Question 9

5th Amendment: Right to Counsel

• CUSTODY (Fifth amendment right to counsel does not apply unless you are in custody)

-Interrogation

-Any subject (cannot talk to you about ANY subject- current crime, past crimes, etc.)

-Miranda Waiver (is the only way police can talk to you)

Question 10

Arthur Rainwater was arrested for a stolen car. Following his ARRAIGNMENT, Rainwater was approached at the jail by a detective. Rainwater waived his Miranda rights and proceeded to tell the detective about other car thefts he had perpetrated.

Was this a violation of Rainwater’s Article 12 Right to Counsel?

Answer 10

No.

Rainwater had an attorney for a particular stolen car case. Detective made it clear he did not want to talk to him about his pending case, only other cases.

The confessions were properly obtained, even without his attorney present, because they did not deal with the pending stolen car case.

Question 11

Arthur Rainwater was arrested for a stolen car. Following his ARRAIGNMENT, Rainwater was approached at the jail by a detective. Rainwater waived his Miranda rights and proceeded to tell the detective about other car thefts he had perpetrated.

The confessions were properly obtained, even without his attorney present, because they did not deal with the pending stolen car case. However, the SJC warned officers not to discuss topics that are (blank) with the pending charges.

Answer 11

“inextricably intertwined”

In other words, if uncharged and pending offense stem from the same event, then a police- initiated discussion is out of bounds without the defendant’s lawyer present.

Ex. suspect indicted for arson. Police says “I don’t want to talk about the arson you were indicted for, but I do want to talk to you about the fact that you probably stole property from the houses before you lit them on fire”- Court is going to to call bullshit on that- Violation of Article 12. However, for example, if officer talked to him about another house fire a year ago, would have been fine.

Question 12

Article 12 Right to Counsel:

If the accused independently decides to speak with police, officer may obtain an :

Answer 12

Article 12 waiver

• Get valid Miranda waiver as well (Miranda warnings, although devised to inform suspects about their Fifth Amendment rights, are sufficient for this purpose)

Only if it is the defendant who truly and completely initiates the conversation

Question 13

In Massachusetts , Once the accused asserts his right to counsel:

Answer 13

all interrogation concerning the charged offenses must stop.

Question 14

Article 12 Right to Counsel: Improper Police Conduct:

Massachusetts retains a “bright line rule” to protect defendants. what is this rule? (4)

Answer 14

1. Arraignment
2. Absolutely barred
3. Unless counsel present
4. Automatic suppression

If a defendant asserts his right to an attorney at his arraignment; The police are absolutely barred from initiating an interrogation; Unless Counsel is made available; A waiver of counsel that violates this rule is invalid, and the resulting statements will be suppressed.

Question 15

What is the consequence of an Article 12 Right to Counsel violation?

Answer 15

suppression of statements.

Question 16

Police should never listen to attorney/client communication in lockup. Slight monitoring is permissible, but listening is: (2)

Answer 16

illegal and unethical.

ex. charges pending against the defendant were dismissed because the police electronically intercepted privileged communications between him and his lawyer.

Question 17

Article 12 Right to Counsel: Violations

Can police “bad mouth” a suspects defense attorney?

Answer 17

No. This may be an article 12 violation.

ex. police knew the defendant had legal representation, but spoke to him about his pending drug case. They criticized his attorney and encourage the defendant to become an informant. This misconduct was so blatant, all charges were dismissed.

Question 18

Article 12 Right to Counsel:

Police should not offer to intervene in a pending case. Police may not offer to help a defendant resolve pending charges without:

Answer 18

consulting defense counsel.

• This is true even in situations where the police are offering a deal that is clearly in the defendant’s interest.

ex. police would resolve the defendant’s gun case with no jail time for information concerning their arson case…police must consult the defense cousel.

Question 19

Article 12

For an informant to become an agent (of the police), the government must (blank) his cooperation.

Answer 19

solicit.

however, the fact that an individual initiates contact with the police, chooses to cooperate, and is later rewarded, does not make him an agent- so long as he was initially promised nothing for his assistance.

Question 20

If an investigator or prosecutor recruits a jailhouse informant- even if the informant is not told to target any particular individual- this is a:

Answer 20

Violation of Article 12.

ex. Murphy was awaiting trail in jail. An inmate did favors for him (hid his “shank”, and tried to bribe a witness in his case.) The inmate was actually an informant who got Murphy to admit his role in the murder.

The SJC found that Murphy’s Right to Counsel was violated because the informant had an agreement with the U.S. Attorney that he would receive a lesser sentence for information. Such open ended deal risk encouraging a jailhouse snitch to seek out, and even fabricate, confessions.

Question 21

True or false?

The fact that an informant served as a government agent in the past does not mean that he remains on in the future.

Answer 21

True.

Ex. jailhouse informant was not an agent in this case, even though he had provided information in two prior murder cases; there was no evidence the government asked for his help or put him and the defendant in the same cell in order to elicit information; as a result, the informant could testify that the defendant admitted he sent the pipe bomb that killed the waitress.

Question 22

If the accused (blank) to speak with police, officers may obtain an Article 12 waive.

Answer 22

independently decides.

“Nothing… prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his own, to speak with police in the absence of an attorney… Although a defendant may later regret his decision, (Article 12) does not disable a criminal defendant from excercising his free will”

Question 23

Article 12:

At the defendant’s request, a detective visited him in a Maine prison to hear his confession about a Massachusetts murder; the detective showed him a letter form his newly appointed attorney advising him not to speak with the police; even so he confess.

Was this acceptable or unacceptable?

Answer 23

Acceptable.

Question 24

Article 12 Right to Counsel

Other government officials, not just police officers, are prohibited from speaking with the accused about a pending case.

Who else is prohibited: (Two examples in the book:)

Answer 24

1. A Court officer
2. DCF investigator.

ex. After Kathleen Hilton’s arraignment, a court officer asked if she really burned down the building and killed five people. She admitted it. Court officers are considered law enforcement agents and may not talk to prisoners about their cases. * However, if a court officer makes a casual remark to a prisoner without intending to incriminate, and the prisoner responds with an admission, the response does not violate Article 12.

Question 25

Article 12 Right to Counsel

Other government officials, not just police officers, are prohibited from speaking with the accused about a pending case.

Who else is prohibited: (Two examples in the book:)

Answer 25

1. A Court officer
2. DCF investigator

Ex. Rape of 14 year old niece. Defendant was arrested and arraigned. DCF investigator went to the courthouse to talk with him. Since the agent is a government official, her incriminating interview was considered the same as police interrogation. She violated the defendant’s Article 12 rights, and his comments to her were suppressed.