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. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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