About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


56 N.D. L. Rev. 259 (1979-1980)
Criminal Law - Failure to Request Counsel; Waiver - Miranda Per Se Exclusion of Confessions Obtained in Absence of Counsel No Longer Applicable: Waiver of Counsel Determined on Basis of Totality of Circumstances

handle is hein.journals/nordak56 and id is 263 raw text is: RECENT CASE CRIMINAL LAW - FAILURE TO REQUEST COUNSEL; WAIVER MIRANDA PER SE EXCLUSION OF CONFESSIONS OBTAINED IN ABSENCE OF COUNSEL NO LONGER APPLICABLE: WAIVER OF COUNSEL DETERMINED ON BASIS OF TOTALITY OF CIRCUMSTANCES. After being placed under arrest and given his Miranda rights,t the respondent made incriminating statements to the arresting officers.2 Respondent subsequently made a motion to suppress these statements on the ground that he had not waived his right to the assistance of counsel at the time the statements were made.3 This motion was denied by the trial court and respondent was subsequently convicted.4 Adopting a per se rule, the North Carolina Supreme Court reversed respondent's conviction.5 Based on its reading of Miranda, the court refused to admit into evidence any statement made by a person under custodial interrogation and without counsel unless, at the time the inculpatory statement was made, the suspect had explicitly waived the right to counsel.6 The 1. Miranda v. Arizona, 384 U.S. 436 (1966). The Coiurt stated as follows: Prior to any ucsl I'll Ing. the person rmust be warned that he has a right to remain silent, that any statement he Ies make may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed. -d. at 444. 2. North Carolina v. Butler. - U.S. - __-, 99 S. Ct. 1755, 1756 (1979). When asked if he understnod his rights respondent replied that he did. The respondent refused to sign the waiver at the bottonm of the F.B.I.'s Advice of Rights form. He was told that he need neither speak nor sign the form. but that the agents would like to talk to him. The respondent replied, I will talk to you but I am not signing any form. He then tmade inculpatory statements. Id. Respondent said nothing when advised of his right to the assistance ofa lawyer. At no time did the respondent request counsel or attetipt to stop the agent's questioning. Id. 3. Id. 4. Id. 5. State v. Butler, 295 N.C. 250. - 244 S.E 2d 410. 413 (1978). The North Carolina Supreme Court stated that the holding in Miranda v. Arizona, 384 U.S. 436 (1966) provides that unless and until a suspect is warned of his rights cinder Miranda and the suspect's specific waiver of these rights is demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. 295 N.C. at , 244 S.E.2d at 413. 6. 295 N.C. at __, 244 S.E.2d at 413. The court stated that the holding in Miranda provides