Looking back on the thread in July, when Rothgery occurred, have there been any other hallmark issues affecting us? Some thoughts off the top--
1. Is it now a critical stage, for purposes of self-triggering 6th amendment, when an arrest warrant is issued by a magistrate? Or,
2. Are we still treating the critical stage at the 15.17 warnings? If so, then back to question #1--where a suspect is arrested pursuant to warrant, and before he is magistrated, may I pursue a custodial statement without the fuss of 6th amendment issues if he waives Miranda rights?
Thanks in advance for your input.
The holding of Rothgery was limited to the issue of attachment of the Sixth Amendment right at the article 15.17 hearing. The Court specifically didn't want to decide whether this was a critical stage (presumably because this would've required Texas to develop and fund a system to make sure an attorney was there at the hearing on request). I don't think this opinion can be read to stretch back to touch pre-article 15.17 hearing interactions. Rothgery does nothing to change previous case law dealing with arrest pursuant to a warrant and whether that triggers Sixth Amendment protection.
I feel like Rothgery should call into question existent case law regarding the importance of delays in administering the 15.17 hearing.
The plain text of the law says it must happen "without unnecessary delay" but pre-Rothgery rulings found no harm for many delays based in part because the courts didn't see any major significance of the 15.17 hearing, especially when Miranda warnings had been given. So, in my opinion, those pre-Rothgery decisions may be revisited now that the Supreme Court recognizes the constitutional significance of 15.17 hearings.
I have nothing to back up this claim, its just how I see it.
Any investigator should be on sound constitutional ground to arrest a defendant and conduct a custodial interrogation consistent with Miranda rules if done before magistration takes place. So, execute the warrant, take the defendant to the police station, conduct the interview and then book defendant in jail.
I can't imagine any court anywhere suggesting that good investigative work done immediately after an arrest on a complaint or on-site in any way triggers anyone's Sixth Amendment Right to Counsel. That would be just stupid.
Now, having said all that, any investigator should explore whether such an interview can be conducted before an arrest is made. Noncustodial interrogation certainly avoids a Sixth Amendment issue, but it also avoids Miranda and leaves the investigator with much more room to work during the interview.
I agree with JB, but with one caveat. If you get this warrant as an extension of your investigation, great. But if this is a warrant that issued after the indictment, then you may have Sixth Amendment issues. I know that's not the scenario you're probably envisioning (it's a capias issued after indictment, not a warrant, I know, I know), but I did feel the need to raise the issue.
Yes, and that's why I specified an arrest arising from a warrant issued pursuant to a complaint (rather than an indictment) or an on-site arrest.
Interrogation following indictment and arrest gets constitutionally complicated. Check with your local prosecutor before attempting custodial interrogation in that case.
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