Pretrial Right to Counsel

Author:by Major John F. Christensen

    A person who expects to be charged with a crime, or who has been indicted but not yet arrested, has complete freedom to seek the advice of a lawyer. The lawyer, in addition to advising him of his rights, may properly advise his client to remain silent after his arrest.' Thus even though the right to consult with counsel prior to appearance before the magistrate has not generally been recognized, there are a certain number of cases where prosecuting officials are powerless to prevent the accused from receiving ad-vice from his counsel.


    If a person is lawfully arrested with or without a warrant he must be taken without unnecessary delay before the nearest available United States commissioner? Appearance before the commissioner may be delayed for routine administrative procedures such as booking and fingerprinting, but may not be further delayed to permit interrogation by the police.' The police certainly have no duty to delay the ordinary administrative steps because the accused asks to have an opportunity to call hia counsel to the police station. His rights are protected by prompt appearance be- * This artieic warn adapted from a theiis prenented b The Judge Adroeate GeneraI'm School, U.S. Army, Charlotteidlie, Virpinia, while the author was a member of the Eleventh Career Course. The opinion# and eenelvaioni presented herein 818 those of the author and do not neeniarliy repmient the views of The Judge Advoeate General's School or any other governrnsntai.gBnq..

    **JAGC. US. Army; OWce of the Chief of Legidstiw Lisiion-3W~e of the SecretPry of the Army; LL.B.. 1860. Unirerdtp of San Franeileo; Member of the BPT of the State of California and of the United Stltes Supreme Court, the United Stltea Court of AppeaI~(, Ninth Circuit, the United States District Court. Northern Diatriet of Caiiiornia. and the United States

    fore Che magistrate. The lawyer who accompanies the accused to the police station may be prevented, despite the accused's abjection, from being present during the simple administrative procedures' even though incriminating statements made during this period have been held admissible at the trial.& The justification far exclusion of counsel at this time is that the arrest and subsequent administrative actions are in no way proceedings against the accused. He is not entitled to impose upon the government the burden of assuring that he has a continuous chaperone.

    There are situations where the appearance before the commissioner is delayed beyond the time required far normal administrative procedures. The delay need not necessarily result in an illegal detention if no commissioner is immediately available' nor if the police are merely verifying a story volunteered by the accused.' The delay will result in illegal detention if the police deliberately delay in order to interrogate the accused.'

    If the limitation on police detention imposed by Rule 5a is strictly observed, there is little opportunity for interrogation of a suspect before he is warned of his rights by a commissioner. However, in addition to interrogating a 8uspect during the judicially sanctioned delays after arrest,' the police commonly question individuals without making an "official" arrest.1° A person who accompanies a police officer upon request and voluntarily submits to questioning is not under arrest." On the other hand, a person who has been detained for questioning against his will is under arrest, no matter what it might be called.12 In the absence of statutela the police are not authorized to detain a person for interrogation without arrest. In Culombe v. Connecticut," Mr.

    4 Cf. notes 30-32 infm and text aeeompanymg.


    See Heideman V. United States, 259 F.2d 943 (D.C. Cir. 1958). cwt. denied, 368 U.S. 858 (1968).

    6 Porter V. United States, 258 F. 2d 686 (D.C. Cir. 1958). cw1. denied, 360 U.S. 806 (1969).

    7 Mallom 7. Unrted States, 354 U.S. 449, 455 (1957) (dictum) : Goldsmith Y. United States, 177 F.2d 335, 343 (D.C. Cir. 1960) (dletum), o w l drdcd, Carter Y. United Statea, 364 U.S. 863 (1860).

    8 Maliory V. United States, 354 U.S. 449 (1967).

    9 See esies cited, ~upra, notes 6, 7.

    10". ,

    . Arrests 'on w~picion' where there ii no spemfie charge, ~iieillwithout bookmg, and roundups of auapleioun characters 01 individuals with prior arreet records are very common. . . ." TAPPAN, CRIME, JUSTICE ANDCORRECTIONS 283 (1960).

    11 Williamsv. United Statea, 189 F.2d 698 (D.C. Cir. 1951). 1

    Compare Bennett 7. UnitPd Statal, 104 F.2d 209 (D.C. Cii. 1939). See d.0 DGYLIN, TBE CRlMlNUl PROBECUTION rN ENDLA.*MI. 68 (1960).lii There is no federal statute authoridng detention for iaseatigntion.sei u s 671 (1861).1 A M


    Justice Franldurter wrote: ". , . In the United States 'interrogation' has become B police technique, and detention for purposes of interrogation is a common, although generally unlawful, practice.

    , , Although Cdombe was a state prosecution, the opinion ranges widely and cover8 federal criminal practice. Mr. Justice Douglas believes that federal officers violate the prompt appearance rule: "While the McNabb rule is ideal, it is, I fear, not greatly respected in practice. Detention of suspects for secret interrogations continues both at the federal and the state level.""


    1. Habeas Corpus.

    Assuming there is detention without interrogation, does the accused have the right to call a lawyer and then to speak to him when he arrives at the jail? This involves one aspect of the problem of whether the accused can be held incommunicado." The United States Constitution provides, "The privilege of the Writ af Habeas Corpus shall not be suspended. , . ."18 Habeas corpus is the procedure by which an accused tests whether his arrest and detention is based upon probable cause as required by the Fourth Amendment. An accused who is held incommunicado cannot assert his right to habeas corpus--as to him the privilege of the writ is for all practical purposes suspended while he is so held, The right tn test the legality of the detention being B constitutional gumantee which is violated by delay, the accused must be permitted to institute habeas corpus proceedings at the earliest moment practicable after arrest. In order effectively to sue for a writ, he must be allowed to see his counsel at the police station. The right to counsel for this purpose must not be thwarted by invoking what at another time would be a reasonable limitation on the right to have visitors.

    While the protection of the Writ of Habeas Corpus carries with it the right to the assistance of counsel at the first opportunity after arrest or detention, there is the problem of finding an effective remedy. There is no reported case holding that charges must be dismissed because of denial of the right effectively to test the

    IsId., at 57273, authorities cited at 573, n.5. See also, Fa&, Safsguarda 3% the Low of Ameat, 62 Nw. U. L. RN. 16, 20 (1951); Plaseowe, A Modem Law of Awe~t,

    39 MINN. L. RE". 473 (1865) i Wsite, The Law 01 Ameat, 24 Tm. L. REV. 279. 298 (1945).


    156 (1958).17 "Incammumeado" 81- InvoIves the coercive &eat of interrogation without the ivpport of COYII~OI. See eases cited infm, note 20.

    18 Art. I, B 9, Clause 2.*Go 0148 a

    legality of the detention. A civil cause of action for money damages would seem to be available but this remedy has generally proved ineffective.10

    The incursion of individual civil liberties encompassed by the phrase "being held incommunicado" has not been directly condemned, but has increasingly come under fire by the Supreme Court in the collateral matter of whether the accused's confession meets due process standards of the FourteenthDenial of counsel has been treated as one factor tending to show coercion. No case has yet held that being held incommunicado is alone sufficiently coercive to render a statement inadmissible.

    2. Trial Preparation.

    The Sixth Amendment gqarantee of assistance af eaunsel for the defense of a criminal charge has been held to include a reasonable opportunity to consult with counsel and prepare for trial.21 No point in the pretrial proceedings has been specified as the time when counsel may first consult with the accused in order to begin his trial preparation. Logically, preparation for trial might begin immediately after arrest. If the accused is merely waiting in a detention cell there is no reason to say that he is not available for consultation. To deny him the assistance of counsel to prepare his defense while police investigation continues must be held to violate the Sixth Amendment. In most cases demonstrable prejudice to the accused's ability to prepare for trial will not be shown by denial of the assistance of counsel far a short time at this early stage. It is unlikely that the Supreme Court will reverse in this situation without testing for prejudice.12


    1. Police Questioning Generally.

    Wholly apart from the right to the assistance of counsel on general grounds, the right may arise because the suspect is personally involved in the investigative process. In the course of an

    19 See Foole, Tort R m d i s s 107 Paiiro Violation at lNiivdvol Righte, 1MINN. L. Rm.

    493 (1956).

    PO See *.I. Fibs Y. Alabama, 552 U.S. 191 (1967); Turner V. Pennsyivanil, 888 U.S: 62 il84sl; Harris V. South Carolina. 358 U.S. 65 (19491.

    11 SOB Chandler V. FretPg, 348 U.S. S, 10 (1954); Powell s. Alabama, 281 US. 46 (18321. See dso Crwker Y. Cslifarnis, S67 U.S. 455, 441 (1958) (dissenting opinionl.

    9nCi. Hamilton s. Alabama, 308 U.S. 62 (19611. Compare Croaker s. Cdifomia, 557 US

    455 (18581.


    investigation he may be requested or told to perform a variety of acts. For example he may be asked to answer questions, requested to provide...

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