NCJ Number
57993
Journal
Fordham Law Review Volume: 47 Issue: 5 Dated: (APRIL 1979) Pages: 810-840
Date Published
1979
Length
31 pages
Annotation
CONTRARY TO THE DECISION OF THE U.S. SUPREME COURT IN KIRBY V. ILLINOIS (1972), THIS LAW REVIEW ARTICLE ADVOCATES THE PROVISION OF LEGAL COUNSEL FOR DEFENDANTS BEFORE THE START OF JUDICIAL HEARINGS.
Abstract
WITHOUT THE ASSISTANCE OF LEGAL COUNSEL, AN ACCUSED MAY BE CONVICTED ON THE BASIS OF UNTRUSTWORTHY TESTIMONY OR MAY BE SUBJECTED TO UNSUPERVISED INTERROGATION TACTICS. ONLY BY THE PRESENCE OF ADEQUATE COUNSEL AT ALL PRETRIAL INVESTIGATORY PROCEDURES CAN UNDESIRABLE RESULTS BE AVOIDED. FURTHERMORE, THERE ARE NO SUBSTANTIAL COUNTERVAILING CONSIDERATIONS AGAINST REQUIRING THE PRESENCE OF COUNSEL IN ALL SITUATIONS AT THE EARLIEST POSSIBLE TIME. MANDATING SUCH A SAFEGUARD WOULD NOT OBSTRUCT THE PROCESSES OF IDENTIFICATION AND LEGITIMATE INVESTIGATION. THE PRESENCE OF APPOINTED OR RETAINED COUNSEL PREVENTS THE USE OF TAINTED EVIDENCE AND ADDS CREDENCE AND RELIABILITY TO THE POLICE PROCEDURES. THE U.S. SUPREME COURT HAS RECOGNIZED THAT THE FIFTH AMENDMENT PROTECTION AGAINST SELF-INCRIMINATION REQUIRES THE PRESENCE OF COUNSEL DURING PRETRIAL CUSTODIAL INTERROGATIONS OF SUSPECTS. IN THE CASE OF KIRBY V. ILLINOIS (1972), HOWEVER, THE HIGH COURT DECIDED NOT TO EXPAND THE RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT BEYOND SUCH INTERROGATIONS. THE DUE PROCESS SAFEGUARDS RELIED ON BY THE KIRBY COURT ARE INADEQUATE FOR THE PROTECTION OF THE SUSPECT'S RIGHTS. BECAUSE COUNSEL PROTECTS SUBSTANTIALLY SIMILAR INTERESTS UNDER THE FIFTH AND SIXTH AMENDMENTS, THE SIXTH AMENDMENT RIGHT TO COUNSEL SHOULD ATTACH AS EARLY AS THE FIFTH AMENDMENT RIGHT TO COUNSEL DURING 'CRITICAL STAGES' OF A CRIMINAL PROSECUTION. THE DEVELOPMENT OF THE 'CRITICAL STAGE' STANDARD AND THE RENAISSANCE OF THE MIRANDA AND WADE RATIONALES ARE EXAMINED. FOOTNOTES ARE PROVIDED, (TWK).