THE FIFTH CIRCUIT COURT OF APPEALS IN UNITED STATES V. BROWN (1978) HELD THAT BECAUSE THE STATE'S INVESTIGATION OF A THEFT SHIFTED TO THE ACCUSATORY STAGE AT THE PRELIMINARY HEARING, THE SIXTH AMENDMENT RIGHT TO COUNSEL HAD ATTACHED, AND HAD NOT BEEN FULFILLED BY AN FBI AGENT'S REFERENCE TO BROWN'S RIGHT TO HAVE AN ATTORNEY PRESENT DURING QUESTIONING. HOWEVER, ON REHEARING EN BANC THE COURT REVERSED THE PANEL DECISION, AND REINSTATED BROWN'S CONVICTION ON THE GROUND THAT SHE HAD EFFECTIVELY WAIVED HER RIGHT TO COUNSEL THROUGH HER SIGNING OF A 'WAIVER OF RIGHT' FORM. THE COURT'S MAJORITY DECLINED TO CONSIDER WHETHER BROWN HAD A RIGHT TO COUNSEL AT THE TIME OF THE FEDERAL INTERROGATION, AND THE CONCURRING JUDGE STATED THAT BROWN'S STATE-APPOINTED ATTORNEY WOULD NOT HAVE BEEN ABLE TO FUNCTION AS HER COUNSEL DURING THE QUESTIONING BY THE FBI. ALTHOUGH A VALID WAIVER RENDERS MOOT THE QUESTION OF WHETHER THE RIGHT PURPORTEDLY WAIVED ACTUALLY EXISTED, THE NATURE OF THE RIGHT AFFECTS WHETHER THE WAIVER WAS VALID. AN EXAMINATION OF THE SIXTH AMENDMENT RIGHT TO COUNSEL INDICATES THAT A MORE COMPLEX WAIVER PROCEDURE MAY BE REQUIRED AT INTERROGATIONS. UNDER UNITED STATES V. WADE (1967) COURTS MUST SCRUTINIZE ANY PRETRIAL CONFRONTATION TO DETERMINE WHETHER THE PRESENCE OF COUNSEL IS NECESSARY TO PRESERVE THAT RIGHT. THEREFORE THE FEDERAL RIGHT TO COUNSEL SHOULD ATTACH AT THE SAME TIME AS THE STATE RIGHT TO COUNSEL. EMPIRICAL STUDIES SHOW THAT CONVENTIONAL MIRANDA WARNINGS DO NOT IMPART A LEVEL OF COMPREHENSION WHICH SATISIFIES THE BURDEN FOR FINDING A KNOWING WAIVER OF RIGHTS. INTERROGATION SHOULD BE PROHIBITED IN THE ABSENCE OF AN ATTORNEY UNLESS A SUSPECT REFUSES TO ALLOW AN ATTORNEY TO BE PRESENT. EVEN THEN, THE PROSECUTION SHOULD BE REQUIRED TO SHOW THAT A JUDGE OR MAGISTRATE HAD THOROUGHLY INFORMED THE SUSPECT ABOUT THE SERVICES WHICH AN ATTORNEY COULD OFFER AT THE INTERROGATION AND FOUND THAT THE SUSPECT UNDERSTOOD THE RAMIFICATIONS OF A WAIVER PRIOR TO QUESTIONING. FOOTNOTES ARE PROVIDED. (TWK)