ILNews

COA differs on when 'critical stage' starts

Jennifer Nelson
January 1, 2008
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A panel of Indiana Court of Appeals judges agreed that a defendant's motion to suppress evidence of a polygraph test should have been granted by the trial court. But the judges had differing reasons for granting the reversal of the trial court, with the majority deviating from precedent on when the right to counsel begins.

In Thomas E. Caraway v. State of Indiana, No. 47A01-0709-CR-416, Thomas Caraway appealed the trial court's denial of his motion to suppress and exclude all evidence of a polygraph examination. Caraway, who had difficulty reading, was read the stipulation agreement by a detective, who didn't mention a Miranda warning or notify Caraway of his right to counsel regarding the polygraph examination. It wasn't until an Indiana State trooper read Caraway his Miranda warnings from a form - including the right to seek the assistance of counsel - right before Caraway was to take the test that he was made aware of that right.

The judges looked to previous caselaw and the federal and Indiana Constitutions to determine whether Caraway's motion should have been granted by the trial court. In Kochersperger v. State, 725 N.E.2d 918 (Ind. Ct. App. 2000), Kochersperger signed an agreement to undergo a polygraph examination after he was read his Miranda warning and was advised of his right to counsel. He later raised a motion to suppress the results of the polygraph test, which the trial court denied.

The Court of Appeals affirmed the denial because Kochersperger was fully advised of his right to counsel and waived that right. That panel also stated the filing of an indictment or information begins the formal criminal process, and because Kochersperger hadn't been arrested, arraigned or indicted during the polygraph test, those periods didn't constitute critical stages of criminal proceedings that required a right to counsel.

However, in the instant case, the majority disagreed with the Kochersperger court and other Indiana caselaw, and ruled the right to counsel can attach earlier than the initiation of criminal proceedings.

"In this case, the application of Kochersperger would derogate from the protections guaranteed by the Sixth Amendment and the Indiana Constitution," wrote Judge Patricia Riley for the majority. "... Although Caraway was not arrested, arraigned, or indicted at the time he stipulated to the polygraph, he waived any objection to the admission of an unreliable form of potentially incriminating evidence. This can be nothing less than a critical stage."

When a defendant finds him or herself in a critical stage, their right to counsel can't be denied simply because they haven't been formally indicted yet, she continued. As a result, the absence of Caraway's right to an attorney derogated his right to a fair trial and because he was never informed of his right to counsel before stipulating to the results of the polygraph test, he couldn't have waived it.

Judge Margret Robb concurred in result in a separate opinion but disagreed as to why the trial court should have granted Caraway's motion to suppress. As a concurring judge in Kochersperger, Judge Robb wrote she continues to believe the right of counsel doesn't attach until criminal proceedings are initiated by the filing of an information or indictment.

"The timing of the advice of rights is an important distinction between Kochersperger and this case," she wrote. "On the basis that Caraway was not advised of and did not waive his right to counsel before signing the stipulation, rather than on the basis of the Sixth Amendment, I agree that the trial court should have granted Caraway's motion to suppress, and I therefore concur in result."
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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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