When the Sixth Amendment Applies to a Voluntary Interview

"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. ....

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