By: Undisputed Legal/Court Service Department
A. When Right Attaches
1. The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”
the a. State constitution, Const. Art. I, § 22, is co-extensive with the Sixth Amendment. See generally State v. Medlock, 86 Wn. App. 89, 97-935 P.2d 693, review denied, 133 Wn.2d 1012 (1997).
2. The Sixth Amendment right to counsel does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. McNeil v. Wisconsin, 501 U.S. 171, 175, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991).
a. A defendant’s custodial status is irrelevant to determining whether the Sixth Amendment right to counsel has attached.
- Once the Sixth Amendment right to counsel attaches, the police may not interrogate the suspect regarding the pending charges without Miranda’s waiver. Patterson v. Illinois, 487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988).
- Once the Sixth Amendment right to counsel attaches, the police may not deliberately elicit statements from the accused in the absence of counsel. Fellers v. the United States, 540 U.S. 519, 124 S. Ct. 1019, 157 L. Ed. 2d 1016 (2004).
- Deliberate-elicitation standard is not the same as the Fifth Amendment custodial interrogation standard. Fellers, 124 S. Ct. at 1023.
- Deliberate-elicitation will not be found if the government agent “made ‘no effort to stimulate conversations about the crime charged.’” Kuhlmann v. Wilson, 477 U.S. 436, 442, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986) (quoting United States v. Henry, 447 U.S. 264, 271 n.9, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980)).
Case law indicates that statements were deliberately elicited in the following circumstances:
- Deliberate-elicitation standard is not the same as the Fifth Amendment custodial interrogation standard. Fellers, 124 S. Ct. at 1023.
• Officers went to the defendant’s house, knocked on the door, identified themselves when the defendant answered the door, and asked if they could enter the house. Defendant allowed them in. Officers then told the defendant they had come to discuss his involvement in methamphetamine distribution and that a grand jury had indicted the defendant for conspiracy to distribute methamphetamine. Officers describing the defendant the names of the other individuals named in the indictment were held to have been designed to elicit an acknowledgment from the defendant that he knew the other individuals. Fellers v. the United States, 540 U.S. 519, 124 S. Ct. 1019, 157 L. Ed. 2d 1016 (2004).
- At least one court has held that officers do not deliberately elicit statements when they merely tell the defendant that they are there to serve an indictment and take him into custody. In this case, the officers did not indicate to the defendant that they were there to “discuss” anything with him, and when the defendant started to speak, the officers told him to be quiet while they read him his Miranda warnings. The officers also advised the defendant not to speak to them and reminded him that he had an attorney. See Commonwealth v. Torres, 442 Mass. 554, 813 N.E.2d 1261, 1277-78 (2004). See also Torres v. Dennehy, 615 F.3d 1 (1st Cor. 2010), cert. Denied, 131 S. Ct. 1038 (2011) (the troopers did not “deliberately elicit” information from him when visiting him in jail to read him the indictment).
- Placement of an undercover informant, who was paid on a contingency fee basis and to whom the government mentioned the defendant’s name, in the same cell block as the indicted defendant constitutes the type of affirmative steps that violate the deliberate-elicitation test. United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980).
- A probation officer’s request that the defendant tells her his version of the offense during a presentence investigation interview constituted “deliberate elicitation.” State v. Everybody talks about, 161 Wn.2d 702, 166 P.3d 693 (2007).
- Tour of the area of the crime scene with the defendant after he had invoked his Sixth Amendment right to counsel was attempting to elicit an incriminating statement deliberately. Commonwealth v. Cornelius, 2004 PA Super 255, 856 A.2d 62 (Pa. Super. 2004).
5. Incriminating statements obtained by “luck or happenstance” after the right to counsel has attached do not violate the Sixth Amendment. Maine v. Moulton, 474 U.S. 159, 176, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985).
• Recording telephone conversations the detained defendant made to his parents and the use of those recordings at trial did not violate the defendant’s Sixth Amendment right to counsel as neither parent agreed to work with the government to elicit information, and the defendant was clearly informed that his conversations could be recorded. State v. Haq, 166 Wn. App. 221, 268 P.3d 997 (2012).
6. The Sixth Amendment right to counsel generally ends with the dismissal of charges. An exception may apply if the original charges’ release was a deliberate effort by government representatives to circumvent the accused’s Sixth Amendment rights. See, e.g., the United States v. Montgomery, 262 F.3d 233, 246-47 (4th Cor. 2001), cert. Denied, 534 U.S. 1034, 122 S. Ct. 576, 151 L. Ed. 2d 448 (2001) (“most courts to consider the question have refused to hold that ‘once a defendant has been charged,’ even after those charges are dismissed, the police and their agents are barred from questioning him “about the subject matter of those charges unless his counsel is present.”); State ex rel. Sims v. Perry, 204 W. Va. 625, 515 S.E.2d 582, 584 (W. Va. 1999); Lindsey v. the United States, 911 A.2d 824 (D.C. App. 2006).
B. Charge Specific Right
1. The Sixth Amendment right to counsel is offense-specific. It cannot be invoked once for all future prosecutions. McNeil v. Wisconsin, 501 U.S. 171, 175, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991); State v. Stewart, 113 Wn.2d 462, 780 P.2d 844 (1989), cert. denied, 494 U.S. 1020 (1990).
- Thus an individual who has been charged with robbery may be contacted by police and interrogated about unrelated burglaries. State v. Stewart, supra.
- “Unrelated crimes” in the Sixth Amendment context means those crimes that do not satisfy the Blockburger double jeopardy test. Texas v. Cobb, 121 S. Ct. at 1343.
i. Two statutes satisfy the Blockburger test if proof that the defendant violated one rule would establish a violation of the other law. Blockburger v. the United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
2. A defendant’s statements regarding offenses for which he had not been charged are admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses.
a. Even though the right to counsel under the Sixth Amendment does not attach to uncharged offenses, suspects retain the ability, under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), to refuse any police questioning concerning uncharged offenses.
C. Waiver of Right
- The Sixth Amendment right to counsel is no greater than the Fifth Amendment right to counsel that existed before charges are formally filed. State v. Visitacion, 55 Wn. App. 166, 170, 776 P.2d 986 (1989) (citing Patterson v. Illinois, 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389, 2397 (1988)).
- A defendant can waive the Sixth Amendment right to counsel if he so chooses. The waiver will be upheld if the State can show that the defendant knowingly, voluntarily, and intelligently waived his right to counsel. Visitacion, 55 Wn. App. at 170 (citing Brewer v. Williams, 430 U.S. 387, 404, 51 L. Ed. 2d 424, 97 S. Ct. 1232 (1977); Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A.L.R. 357 (1938).
a. A child younger than 12 years of age cannot waive his or her Sixth Amendment rights. See RCW 13.40.140(10). The child’s parent, guardian, or custodian must waive the child’s Sixth Amendment rights for a confession to be admissible.
- If both parents are present, get a waiver from both parents.
- If the parents waive the child’s Sixth Amendment rights, but the child does not wish to speak to the officer, any confession will probably be ruled inadmissible.
- For older children, the presence of the child’s parents and whether the child’s parents concurred in the waiver of the Sixth Amendment right to counsel are factors to be considered in the “totality of the circumstances.” Dutil v. State, 93 Wn.2d 84, 93, 606 P.2d 269 (1980).
3. Miranda warnings are adequate to advise an individual of his or her post-indictment Sixth Amendment right to counsel. Patterson v. Illinois, 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389, 2398 (1988); Visitacion, 55 Wn. App. at 170-71.
a. Because it is straightforward for an officer to say something that a court may later determine was designed to elicit an incriminating statement deliberately, officers are encouraged to read Miranda warnings to anyone who is arrested under a warrant as early into the contact as possible, regardless of whether the officer intends to interrogate the suspect.
4. The Sixth Amendment right to counsel in a criminal case belongs to the defendant, not the attorney. Therefore, a defendant’s attorney cannot prohibit law enforcement from responding to a defendant’s request for contact. See, e.g., State v. Petitclerc, 53 Wn. App. 419, 425, 768 P.2d 516 (1989) (defense attorney’s notice of appearance, which contained a request that no law enforcement officials question the defendant without his attorney being present did not make it inappropriate for law enforcement officials to contact the defendant or preclude the defendant from choosing to ignore his attorney’s advice and choose to talk to law enforcement officials). When a defendant initiates contact with the police, the responding officer should administer Miranda warnings before speaking with the defendant.
a. While police officers may speak with a represented defendant if the defendant initiates contact, prosecutors may not. See RPC 4.2, the United States v. Jamil, 546 F. Supp. 646, 652 (E.D. NY. 1982), rev’d on other grounds, 707 F.2d 638 (2nd Cor. 1983) (“[t]here is unanimous and fully documented authority for the proposition that prosecutors are no less subject to the prohibition against communication with a represented person than are members of the private bar.”); State v. Morgan, 231 Kan. 472, 646 P.2d 1064, 1070 (1982) (“The prosecutor is a lawyer first; a law enforcement officer second. The provisions of the Code of Professional Responsibility are as applicable to him as they are to all lawyers.”); but see State v. Nicholson, 77 Wn.2d 415, 463 P.2d 633 (1969) (former ethics Cannon 9 only applies to civil cases and does not apply to prosecutors).
The focus of RPC 4.2 is on the obligation of attorneys to respect the relationship of the adverse party and the party’s attorney. See the United States v. Lopez, 4 F.3d 1455, 1462 (9th Cor. 1993). The right belongs to the party’s attorney, not the party. The party cannot waive the no-contact rule application — only the party’s attorney can waive the attorney’s right to be present during a communication between the attorney’s client and opposing counsel. Id.; State v. Miller, 600 N.W.2d 457, 464 (Minn. 1999). The fact that a defendant initiated contact does not excuse a prosecutor from adherence to RPC 4.2. See State v. Ford, 793 P.2d 397, 400 (Utah App. 1990); People v. Green, 405 Mich. 273, 274 N.W.2d 448, 453 (1979).
A prosecutor may not order a police officer to do what the prosecutor may not do. See RPC 5.3(c)(1); State v. Miller, 600 N.W.2d 457, 464 (1999) (prosecutors will be responsible for a police officer’s contact with a represented individual if the prosecutor “orders or, with knowledge of the specific conduct, ratifies the conduct involved.”).
i. A violation of RPC 4.2 may subject a prosecuting attorney to discipline by the bar. See, e.g., People v. Green, 405 Mich. 273, 274 N.W.2d 448, 454-455 (1979).
ii.Statements obtained in violation of RPC 4.2 may be suppressed. See, e.g., United States v. Hammad, 858 F.2d 834, 840-41 (2nd Cor. 1988); State v. Miller, 600 N.W.2d 457, 467-68 (Minn. 1999); contra State v. Nicholson, 77 Wn.2d 415, 419, 463 P.2d 633 (1969); State v. Morgan, 231 Kan. 472, 646 P.2d 1064, 1070 (1982) (suppression is never a remedy for a violation of RPC 4.2); People v. Green, 405 Mich. 273, 274 N.W.2d 448, 454-455 (1979) (suppression is never a remedy for a violation of RPC 4.2).
5. An attorney’s appointment at first appearance or arraignment does not bar an officer from contacting a defendant for an interview. However, the officer must immediately tender Miranda warnings and obtain a voluntary waiver of the defendant’s right to remain silent and the right to have an attorney present for the interview. Montejo v. Louisiana, ___ U.S. ___, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009).
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