A defendant is arrested for murder after giving a confession. At the conclusion of the interview, the Investigator told the defendant he would like to speak with him again later. The defendant indicates he is willing. The defendant is subsequently magistrated and fills out the form indicating he wants a court appointed attorney. The next day, the Investigator initiates another interview and begins with something like � You indicated on the paperwork yesterday you wanted a court appointed attorney. Do you still want one or are you willing to waive that so we can talk some more?� The defendant readily agrees to talk and proceeds to dig his hole a little deeper. This second statement is not absolutely necessary but it eliminates some arguements the defense may make. I�m afraid of the second interview but do not believe the defendant unequivocally intended to invoke his right to counsel as to any further interviews. Any thoughts? Should I stay away from this?

Read Cross v. State, 11-02-00225-CR and the cases cited in Eastland's Court's opinion. The SPA is taking this up on appeal, stating the second statement should not have been excluded. The interpretation of the cases cited by the Eastland court supports their opinion, but is not on point. If you need more I have the SPA's brief which might help. COntact me at 325-674-1261 or email dyerp@taylorcountytexas.org

The court of criminal appeals has never decided whether an arrest and magistration triggers the 6th amendment. Is it a critical stage justifying the attachment of that right to counsel?

If so, defendant can't waive his right to counsel without presence of that counsel.

If you are dealing with the 5th amendment right to counsel (protecting against self-incrimination), then perhaps it can be waived. Interesting question.

Of course, no one is saying that any of these statements are involuntary. Isn't that what we are supposed to protecting against?

Tuck,
Corwin v State, 870 Sw 2nd...don't have the p. #s.

Even if the arrest & subsequent magistrate warnings serve to initiate adversary judicial proceedings for Sixth Amendment purposes, which I would argue they fail to do, Holloway v. State, 780 S.W.2d 787, at 791, n. 3 (Tex. Crim. App. 1989) (�return of an indictment signals� initiation of adversary judicial proceedings); the defendant's unilateral waiver of his right to counsel can be valid if no attorney-client relationship had been established. See Robinson v. State, 851 S.W.2d 216, 224 (Tex. Crim. App. 1991), citing Patterson v. Illinois, 487 U.S. 285, 297 (1988).