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17 Hamline Law Review 307 (1993)


It is the thesis of this Article that the cases on which the Minnesota Supreme Court in Lefthand relied and the policy concerns that motivated the court suggest that the rule of Lefthand should apply to any suspect who has asserted her right to counsel, regardless of whether that suspect is in custody, formally charged, or formally represented by counsel. If the court's ruling in Lefthand is carried to its logical scope, law enforcement officers and prosecutors in Minnesota may find that very early in the criminal justice process they are precluded from obtaining waivers of the right to counsel from suspects in order to obtain a statement, unless the suspect's attorney is present or has been notified prior to any interrogation.

This Article first briefly reviews the current law regarding right to counsel under the Fifth and Sixth Amendments to the United States Constitution. It demonstrates that in the factual setting of the Lefthand case and similar cases, these federal rights are not violated when the police obtain a waiver of the right to counsel from the suspect without counsel being present or having been notified, and subsequent statements are admissible under federal law.

This Article then examines the right to counsel provided suspects under Minnesota state law. In particular, the Article focuses on the Lefthand case and the cases to which the Lefthand court referred as giving "notice of our 'strong[] disapprov[al]' of the practice engaged in by the government. The Article argues that these cases, especially when read in the context of the Minnesota Supreme Court's history of "jealously guard[ing]" the right to counsel, require the court to apply the right recognized in Lefthand to all suspects who have asserted their right to counsel, regardless of whether they are within the narrow fact situation at issue in Lefthand.s As demonstrated below, such a rule is necessary to protect adequately the right to counsel so highly valued by the Minnesota Supreme Court.

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