Saturday, August 2, 2008

Law and Argument

II. Law and Argument

There is a conflict of laws between Virginia and Pennsylvania. However, the issue of admissibility must be analyzed under Pennsylvania law even though the statements were elicited in Virginia because Pennsylvania has the greater state interest.

Under Pennsylvania law, the Sixth Amendment right to counsel attaches at arrest. Commonwealth v. Karash, 513 Pa. 6, 518 A 537, 541 (1986); Commonwealth v. Laney, 1999 Pa.Super68, 729 A.2d 598, 601 (Pa.Super. 1999); Commonwealth v. Richman, 458 Pa. 167, 320 A 351 (1974); Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970). Pennsylvania offers greater protection than federal law. Kerekes clearly invoked his right to counsel. See Report Exhibit 1. Corporal Hannon’s reading of the complaint and affidavit was the functional equivalent of an interrogation violating the Sixth Amendment right to counsel when viewed under Pennsylvania law. Because Kerekes was interrogated after he had invoked his right to counsel, the statements elicited must be suppressed as they were obtained in violation of Kerekes’ Sixth Amendment rights.

Should the Court disagree and find analysis appropriate under Virginia law, the statements should still be suppressed. Under Virginia law, the point of arrest does not attach Sixth Amendment rights. Virginia offers no greater protection than federal law. However, the defendant is still protected by his Fifth Amendment right to counsel. Because Kerekes unequivocally invoked his right to counsel and was in custody, any further questioning was prohibited by the Fifth Amendment. Therefore, the statements must be suppressed.