Denial or Absence of Counsel

Right to counsel during custodial interrogation

• Pursuant to Miranda, any person subject to a custodial interrogation has the right to counsel.

Malloch v. State, 980 N.E.2d 887, 900 (Ind. Ct. App. 2012), trans. denied(citing Sauerheber v. State, 698 N.E.2d 796, 801 (Ind. 1998))

• For more information about the right to counsel during custodial interrogation, please review Miranda Warnings.

• For information about the Sixth Amendment right to counsel, please review Right to Counsel.

Waiver

• Obviously, a suspect may waive his right to counsel and give a statement while in custody. Such a valid waiver must be voluntary and intelligent[.]

Malinksi v. State, 794 N.E.2d 1071, 1079 (Ind. 2003)

• [O]ne who has been advised of his Miranda rights may waive them expressly by an explicit oral or written waiver or impliedly by an act of speaking in a manner reflecting a desire to give information after an acknowledgement of an understanding of those rights.

Robey v. State, 555 N.E.2d 145, 148 (Ind. 1990)(citing Shelton v. State, 490 N.E.2d 738, 741 (Ind. 1986))

• For more information about waiver of Miranda rights, please review Waiver.

Rights of the accused under the Fifth and Fourteenth Amendments to the United States Constitution: Holding in Moran v. Burbine

• Regardless of any issue of waiver, [the defendant] urges, the Fifth Amendment requires the reversal of a conviction if the police are less than forthright in their dealings with an attorney or if they fail to tell a suspect of a lawyer's unilateral efforts to contact him. Because the proposed modification ignores the underlying purposes of the Miranda rules and because we think that the [Miranda] decision as written strikes the proper balance between society's legitimate law enforcement interests and the protection of the defendant's Fifth Amendment rights, we decline the invitation to further extend Miranda's reach.

Moran v. Burbine, 475 U.S. 412, 424 (1986)

• [W]hile we share [the defendant’s] distaste for the deliberate misleading of an officer of the court, reading Miranda to forbid police deception of an attorney “would cut [the Miranda decision] completely loose from its own explicitly stated rationale.”

Moran v. Burbine, 475 U.S. 412, 424 (1986)(quoting Beckwith v. United State, 425 U.S. 341, 345 (1976))

• Nor are we prepared to adopt a rule requiring that the police inform a suspect of an attorney's efforts to reach him. While such a rule might add marginally to Miranda's goal of dispelling the compulsion inherent in custodial interrogation, overriding practical considerations counsel against its adoption.

Moran v. Burbine, 475 U.S. 412, 425 (1986)

• Because neither the letter nor purposes of Miranda require this additional handicap on otherwise permissible investigatory efforts, we are unwilling to expand the Miranda rules to require the police to keep the suspect abreast of the status of his legal representation.

Moran v. Burbine, 475 U.S. 412, 427 (1986)

Rights of the accused under the Fifth and Fourteenth Amendments to the United States Constitution: Interpretations of the holding in Moran v. Burbine

• In Moran v. Burbine, 475 U.S. 412 (1986), the United States Supreme Court held that the failure to inform an accused of an attorney's attempts to contact him did not deprive him of his right to counsel or vitiate his waiver of Miranda rights.

McClaskey v. State, 540 N.E.2d 41, 44 (Ind. 1989)

See Malinksi v. State, 794 N.E.2d 1071, 1077 (Ind. 2003)(citations omitted)(“The Court held that the waiver of Miranda rights was valid, despite the police failure to inform the defendant that his attorney tried to contact him and the false assurances that police gave the defendant's attorney. The Court concluded that neither the Fifth nor the Fourteenth Amendment guarantees of due process were violated.”)

Cf. Owens v. State, 732 N.E.2d 161, 164 (Ind. 2000)(“[E]ven had [the attorney] been en route to or waiting at the police station during [the defendant’s] confession, neither the Fifth nor the Fourteenth Amendment requires suppression of a confession obtained after an attorney, unknown to the suspect, unsuccessfully seeks to intervene in an interrogation.”)

Effect of the holding in Moran v. Burbine on Indiana state law

• Though federal law does not require that police inform a custodial suspect about an attorney's efforts to contact him, the Burbine Court observed that states have leeway to adopt different requirements for the conduct of their employees and officials as a matter of state law.

Malinksi v. State, 794 N.E.2d 1071, 1077 (Ind. 2003)(citing Moran v. Burbine, 475 U.S. 412, 428 (1986))

• Nothing we say today disables the States from adopting different requirements for the conduct of its employees and officials as a matter of state law.

Moran v. Burbine, 475 U.S. 412, 428 (1986)

Rights of the accused under Article I, Section 14 of the Indiana Constitution: Holding in Ajabu v. State

• Requiring police to honor a lawyer's unsolicited request to be present during interrogation would in effect create an “undifferentiated right to the presence of an attorney that is triggered automatically by the initiation of the interrogation itself.”

Ajabu v. State, 693 N.E.2d 921, 934 (Ind. 1998)(quoting Moran v. Burbine, 475 U.S. 412, 433 n. 4 (1986))

• Miranda expressly rejected the idea that “each police station must have a ‘station house lawyer’ present at all times to advise prisoners.”

Ajabu v. State, 693 N.E.2d 921, 934 (Ind. 1998)(quoting Miranda v. Arizona, 384 U.S. 436, 474 (1966), reh’g denied)

• In sum, the necessity of a clear request for counsel in the Fifth Amendment context has remained paramount in application of Miranda, and we hold today that it is a prerequisite for invocation of the Indiana constitutional right under Section 14.

Ajabu v. State, 693 N.E.2d 921, 934 (Ind. 1998)

Rights of the accused under Article I, Section 14 of the Indiana Constitution: Interpretation of the holding in Ajabu v. State

• [The defendant in Ajabu] contended that his section 14 privilege against self-incrimination was violated because the police did not inform him of his attorney's efforts to speak to him before the interrogation took place. We adopted the reasoning in Burbine and held that Indiana's privilege against self-incrimination did not afford custodial suspects any more protection than the Fifth Amendment. We held that a clear request for counsel is a prerequisite for invocation of the right under section 14.

Malinksi v. State, 794 N.E.2d 1071, 1077 (Ind. 2003)(emphasis added)(citations omitted)

Rights of the accused under Article I, Section 13 of the Indiana Constitution: Holding in Malinski v. State

• In light of Indiana's history of an expansive state right to counsel, we agree with [the defendant] that an incarcerated suspect has a right under section 13 to be informed that an attorney hired by his family to represent him is present at the station and wishes to speak to him.

Malinski v. State, 794 N.E.2d 1071, 1079 (Ind. 2003)

• We hold that law enforcement officials have a duty to inform a custodial suspect immediately when an attorney hired by the suspect's family to represent him is present at the station seeking access to him.

Malinski v. State, 794 N.E.2d 1071, 1079 (Ind. 2003)

Determining whether failure to inform the accused pursuant to Article I, Section 13 of the Indiana Constitution vitiates a waiver of the right to counsel

• Thus, the question becomes whether withholding information about counsel's presence made the waiver invalid.

Malinksi v. State, 794 N.E.2d 1071, 1079 (Ind. 2003)

• We adopt a “totality of the circumstances” approach as articulated by the courts in State v. Stoddard, 537 A.2d 446 (Conn. 1988) and Dennis v. State, 990 P.2d 277 (Okla. Crim. App. 1999) . . . .

Malinski v. State, 794 N.E.2d 1071, 1080 (Ind. 2003)

• In applying this test, [the Stoddard court] considered factors such as the extent to which the police had reasonable notice of counsel's request, conduct of the suspect, nature of counsel's request, and relationship of the suspect to the attorney.

Malinski v. State, 794 N.E.2d 1071, 1080 (Ind. 2003)(citing State v. Stoddard, 537 A.2d 446, 456 (Conn. 1988))

• The Dennis court used similar factors.

Malinski v. State, 794 N.E.2d 1071, 1080 (Ind. 2003)(citing Dennis v. State, 990 P.2d 277, 284-85 (Okla. Crim. App. 1999))

Absence of counsel

• Defendant's statements, made voluntarily, do not become inadmissible simply because Defendant's counsel was not notified or present.

Lowery v. State, 478 N.E.2d 1214, 1222 (Ind. 1985), reh’g denied, cert. denied, 475 U.S. 1098 (1986)(citing Sater v. State, 441 N.E.2d 1364, 1365 (Ind. 1982))

See Walls v. State, 368 N.E.2d 1373, 1375 (Ind. Ct. App. 1977), reh’g denied(citing United States v. Cobbs, 481 F.2d 196, 199-200 (3rd Cir. 1973), cert. denied, 414 U.S. 980 (1973))(“It is the opinion of this court that a criminal defendant's statement, in all other respects voluntary, is not made inadmissible per se by the fact that the defendant's retained or court-appointed counsel is not given advance notice that the defendant wishes to make a statement.”)

• Rather, this fact should be considered by the trial court with a critical eye along with all other relevant factors when called upon to determine from the totality of the circumstances whether the State has met its heavy burden of proof of showing that the statement was voluntarily made.

Walls v. State, 368 N.E.2d 1373, 1375 (Ind. Ct. App. 1977), reh’g denied

See Kern v. State, 426 N.E.2d 385, 387 (Ind. 1981)(citing Porter v. State, 391 N.E.2d 801, 808 (Ind. 1979), reh’g denied)(“Notice or lack thereof to defendant's attorney, that an interrogation is to commence and that a statement might be procured, is but one important fact that should be considered by the trial court with a critical eye. It is part of the totality of the circumstances which must be reviewed to determine whether the State has met its heavy burden of proof.”)

• For more information about the voluntariness of statements, please review Voluntariness.

Relationship to the Sixth Amendment right to counsel

• The Sixth Amendment right to counsel does not proscribe the admission of evidence of uncharged crimes still under investigation. The Sixth Amendment therefore did not bar the admission of any statements [the defendant] made before he was charged in this case.

Haak v. State, 695 N.E.2d 944, 949 (Ind. 1998)(internal citation omitted)

• For information about the Sixth Amendment right to counsel, please review Right to Counsel.