Criminal procedures and legal processes

¶ … defendant is found guilty and appeals. The element used for appeal rests in the fact that an undercover officer visited the convicted felon after he was arrested and incarcerated for the charge and the prosecution used conversations that occurred during those visits to help convict. The undercover officer never identified himself as a cop and it was before the trial which meant the officer questioned the defendant after arrest, after being represented by an attorney but before the trial which infringed on the defendant's right to be represented during all questioning.

The issue in this case will revolve around the fact that Art went to visit Bob after Bob was indicted and never identified himself as an undercover cop. In the beginning of the scenario Art was under no obligation to let Bob know that he worked with law enforcement as it was an undercover set up. Bob actually asked Art to help him build the bomb and to kill Carl and at that point, because he had not been arrested or charged with the crime of attempted murder Art was free by law to take the action that he took to help gather evidence that would allow Bob to be arrested and charged with the crime.

Once that arrest took place however and Bob was then indicted by the court system and the grand jury Bob was represented by an attorney of record. The law is very clear on the questioning of a person who is represented by an attorney. The issue surrounding the possible appeal of this case is the fact that Art did not at anytime identify himself as a cop during the visits to the jail following the indictment. There may also be some argument and merit to the fact that Art secretly taped the conversations that he had with Bob as in many states the taping of a conversation is illegal unless both parties are aware of the taping, however, there are some states, Tennessee for example, that allow taping if only one party is aware that the taping is occurring. Because the scenario does not discuss the state that this crime took place in it is wise to only argue the merit of Art visiting Bob and in that visit gathering information to use against him at his trial when he did not have an attorney present. At that point the argument is also valid that Art did not identify himself as a police officer thereby violating Bob's right to have counsel present during the visits or to even make the educated decision as to whether or not he wanted Art to visit him.

RULE

The rule of law that applies is extremely simple. It is that part of the Miranda right where the suspect or defendant is told:

You have the right to remain silent and refuse to answer questions. Anything you do say may be used against you in a court of law. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. If you cannot afford an attorney, one will be appointed for you before any questioning if you wish.

The Miranda rights are very clear and they are for the purpose of protecting a client or defendant from making self-incriminating statements to law enforcement because he or she is not aware of the law or how it works (Marcus, 1990).

High courts have ruled that inmates have the right to have counsel present during questioning just like non-incarcerated people have the right to do.

In a Maryland case in which an inmate was accused of murdering another inmate on a prison bus his attorney instructed authorities not to question him with the attorney present (Klein, 2005).

That request was upheld by court even though conversations that took place on the bus before the attorney was apprised of the new situation could have been very damaging to the suspect.

In a Colorado Supreme Court case, Adkins vs. Colorado he was read his rights and asked why he didn't have an attorney yet, and was told he would probably get one in the morning. He was then questioned before that time. The court ruled he had the right to have an attorney present therefore anything he said during the questioning had to be left out of evidence at his trial (Abbott, 2005).

APPLY

In this case of Bob trying to kill Carl with a bomb attached to his car the police officer went to visit Bob after Bob was incarcerated, charged and had already been indicted. This means that Bob had an attorney listed as the attorney of record and the officer had no right to question him without going through his attorney first. The fact that Art did not identify himself as a law enforcement officer during the visit to Bob makes it even more suspicious. During those visits Bob made several self damaging statements and those statements should be ruled as not able to be used foe evidence during Bob's trial.