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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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