U of Ideas of General Interest -- April 2000
University of Illinois at Urbana-Champaign
Contact: Mark Reutter, Business and Law Editor (217) 333-0568; [email protected]
LAW
Courts have reduced criminal defendant's right to a lawyer
CHAMPAIGN, Ill. ---- Rulings by the Supreme Court and several lower courts have eroded the protections afforded to criminal defendants of a right to a lawyer after indictment, a University of Illinois scholar argues.
Meredith B. Halama, a graduate of the UI College of Law, asserted that subtle shifts in the high court's thinking have "blurred the differences" between the Fifth and Sixth Amendments that should be kept distinct because they involve different stages of a criminal proceeding.
In an article in the UI Law Review, Halama traced the evolution of the Sixth Amendment in light of the changes wrought by the Supreme Court's 1966 landmark Miranda v. Arizona case. Under Miranda, a suspect must be informed by police of his right to remain silent and have a lawyer present during interrogation.
The Miranda right to a lawyer was designed to protect the Fifth Amendment privilege against self-incrimination, and, as such, applies only when the suspect is in custody and under interrogation. The Sixth Amendment, however, involves a citizen's rights during a criminal proceeding, asserting the right to a lawyer when the suspect becomes the accused, and the state's role shifts from investigation to prosecution.
"While Miranda has been a significant safeguard of defendants' constitutional rights, Miranda's language and treatment have inadvertently worn away the Sixth Amendment," Halama wrote. Most significantly in Patterson v. Illinois (1988), the Supreme Court held that a defendant who had been indicted could be interrogated by the police without a lawyer present because he had earlier waived his Miranda rights for a lawyer.
Some lower courts have used the language of Patterson to decrease Sixth Amendment rights with "absurd and arbitrary results," Halama wrote. She especially criticized a 1995 decision by the Supreme Court of Louisiana that introduced hairsplitting distinctions to permit police to interrogate a suspect alone after he was indicted.
In this and in subsequent cases in Mississippi, the courts have ruled that as long as a defendant "never made a positive statement or other action that demonstrated a desire to deal with the police only through counsel," police can continue their interrogations without a lawyer present.
Halama, now a law clerk for U.S. District Judge James F. Holderman of the Northern District of Illinois, praised a number of state courts that had stood fast on the principle that police cannot continue to interrogate a defendant when a lawyer has been appointed.
The Supreme Court needs to "strike an appropriate balance between obtaining reliable confessions and safeguarding fundamental rights," she concluded.
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