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Right to Counsel in Prosecutorial Interrogations

NCJ Number
88224
Journal
Indiana Law Journal Volume: 57 Issue: 3 Dated: (1981-1982) Pages: 499-514
Author(s)
D E Serban
Date Published
1982
Length
16 pages
Annotation
The 5th amendment, through the holding in Miranda v. Arizona, and the due process clause of the 14th amendment require that a witness who is subpoenaed to answer a prosecutor's questions has the right to have counsel present during the interrogation.
Abstract
Although grand jury investigations and prosecutorial interrogations both carry the potential for abusive treatment of a witness, the two proceedings are not similar enough to deny the right to counsel at a prosecutorial investigation, despite the absence of any such right in grand jury investigations. Similarly, the differences between administrative interrogations and interrogations by a prosecutor mean that they should not be adjudicated by the same rule. However, prosecutorial and police interrogations are similar enough to require the extension of the Miranda right to counsel to prosecutorial interrogations. The fundamental fairness standard of the due process clause of the 14th amendment also provides a basis for a per se application of the right to counsel at prosecutorial interrogations. A total of 102 footnotes are provided.