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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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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