Are Courts Pulling Back the Right to Counsel in Wisconsin?

September 27, 2012 (Press-News.org) If you've ever watched a police procedural show on television, or if you've had a personal encounter with law enforcement, you're probably somewhat familiar with the Miranda Warning. The Miranda Warning is a listing of rights afforded to the accused, and police must deliver it before diving into any line of questioning once a suspect is in custody.

One of the most important rights mentioned in the Miranda Warning is the right to an attorney. But, a series of recent court opinions seem to indicate that this important procedural safeguard may be eroding for those arrested in Wisconsin.

Supreme Court Overrules Jackson Case, Calls Into Question Wisconsin Policy

The right to legal counsel for those accused of a crime comes from the Sixth Amendment to the U.S. Constitution. The right to a lawyer is also enshrined in Wisconsin's own state constitution. Essentially, it is a buffer against the power of the state in the investigation of a crime; an individual suspect is unlikely to be equipped to counter the resources and sophistication of law enforcement agents or to fully understand the legal implications of talking to the police. With an attorney to advise a suspect of his or her rights, there is less of a chance that police will be able to elicit an incriminating statement through tricks or coercive behavior.

For many years, once a suspect had requested legal counsel at an arraignment or similar court proceeding, police were prohibited from questioning the suspect about the charged offense unless the suspect's attorney was present. This was the standard established by the U.S. Supreme Court in the case Michigan v. Jackson.

However, in a 5-4 vote, a recent Supreme Court case overruled Michigan v. Jackson. In the new case Montejo v. Louisiana, the Court ruled that law enforcement officers may initiate interrogation of a criminal defendant outside the presence of his or her legal counsel even if the officers know the defendant has secured legal representation.

Wisconsin courts have been slow to adopt Montejo; some judges have ruled that the Wisconsin Constitution may provide a greater level of protection than its federal counterpart, and therefore the old rule prohibiting law enforcement interrogation after a formal request for counsel may still stand. However, since the Wisconsin Supreme Court Case that originally established this rule in the state partially relied on the now overruled Jackson, the boundaries of the right to counsel in Wisconsin are currently on shaky ground.

Bottom Line: Stand Up For Your Rights and Call a Wisconsin Lawyer

For those accused of a crime, the bottom line is that you will still receive a Miranda Warning, you still have the right to legal counsel and the right to remain silent, and you should exercise both of these rights. But, considering the recent confusion about the exact extent of the right to counsel's ability to completely bar questioning, you may have to be more proactive about asserting your rights.

If you've been accused of a crime, politely but firmly tell officers you'd like to exercise your right to counsel. Remember, you are not obligated to talk to police after you've been arrested. Then get in touch with a Wisconsin criminal defense attorney as soon as possible for further advice.

Article provided by Courtney & Molter, S.C.
Visit us at www.courtneyandmolter.com