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Crafty Federal Investigators Get Help From the Courts: Suspects Must Remember to Keep Their Mouths Shut

Kish Law LLC

Federal agents who work for the FBI, DEA, ATF and the like can sometimes be very crafty in trying to get a suspect to make a statement that later will be used in court. There is an old saying in my business that it’s mighty hard to catch a fish that won’t open its mouth. A recent set of cases from the United States Court of Appeals for the Eleventh Circuit gives more power to federal agents when they are investigating suspects who are still in state custody. These decisions allow federal agents to basically ingore the Sixth Amendment rights of suspects who are in state jails while awaiting later federal charges.

The Sixth Amendment to the United States Constitution includes one of our most cherished personal rights. This amendment says that “in all criminal prosecutions the accused shall enjoy the right…to have the assistance of counsel for his defense.” However, over the past two decades the courts have been slowly but surely chipping away at our personal freedoms, and the Sixth Amendment’s promise of “the right…to have the assistance of counsel” is one more casualty in this process. One way that the courts have been restricting this right is by ruling that the Sixth Amendment is “offense specific.” Another method for restricting this right is when the courts have ruled that the right to counsel only starts at the “initiation of adversary judicial criminal proceedings”, which means that if the police want to speak to you before a criminal prosecution has begun, they basically can do so even if you have a lawyer already. However, once a case has started, and you have a lawyer, the police or investigators cannot talk with the defendant, and if they do, any statements are generally inadmissible in court.

In a recent decision, the Eleventh Circuit continued the unfortunate trend of chopping away at the right to counsel. The defendant was arrested by state authorities and charged with possession of cocaine. He hired a lawyer, thereby asserting his Sixth Amendment right to have an attorney whenever some agents wanted to question him. After he hired his lawyer, some federal agents went to visit this defendant at the jail, and they got him to confess. Later, federal prosecutors brought a case for the same incident, but charged it slightly differently. In the federal case, the defendant’s lawyer argued that the statement to the federal agents was obtained in violation of his client’s Siixth Amendment right, in that the defendant had already hired an attorney for the charges at the point when the federal agents went to the state jail.

The Court of Appeals ruled that this questioning by the federal agents was permissible, and therefore, that the confession could be used as evidence. They got around the Sixth Amendment by relying on the “dual sovereignty” fiction. It goes like this: the United States is made up of a single national government along with 50 separate state governments. Each government (the national one and each state) is a separate “sovereign”, just like a king back in the Middle Ages. Therefore, just because a person has exercised his right to have a defense lawyer fight against one sovereign, that person needs to again say he wants a lawyer when other investigators come to talk with him about a case that will be brought by a different government.

Obviously, this is merely a charade to let the police get around people’s right to defend themselves with the help of a lawyer. Courts regularly help the police, but they dress this help up in flowery language supposedly based on an “interpretation” of our Constitution. The bottom line is that people suspected of a crime should generally only speak with their lawyer about the facts, and should remember that they have the right to have their attorney with them whenever they are confronted by the police or investigators.

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