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IT'S NOT EASY BEING GREEN: THE SCOPE OF THE FIFTH AMENDMENT RIGHT TO COUNSEL

NCJ Number
146087
Journal
American Criminal Law Review Volume: 31 Issue: 1 Dated: (Fall 1993) Pages: 145-167
Author(s)
J E Richardson
Date Published
1993
Length
23 pages
Annotation
Right to counsel in custodial interrogation is analyzed.
Abstract
The U.S. Supreme Court in United States v. Green, 113 S.Ct. 1835 (1993), was presented with the question of whether the Fifth Amendment bars the government from questioning a suspect without the suspect's attorney present, when the suspect invoked his right to counsel during a custodial interrogation on an unrelated offense 5 months earlier and remained in custody for the entire period. The case, which was rendered moot due to the untimely death of Mr. Green, resulted in the Court vacating its order granting certiorari. This Note outlines the facts and procedural history of the case, traces the history of the Court's treatment of the Fifth Amendment right to counsel and attempts to place Green in its historical context, analyzing the arguments which the government presented in its brief to the Court. Further, the Note argues that the presumption set forth by the Court in Edwards v. Arizona -- that any statements a suspect makes after requesting counsel are coerced -- should not end until a suspect is released from custody. Mr. Green, once in custody, invoked his right to counsel, thus triggering the Edwards presumption. For the entire 5 months after Mr. Green asked for the assistance of counsel, he remained in custody. This Note argues that the incriminating statement that Mr. Green made at the end of those 5 months, without the presence of his lawyer, was coerced in violation of his Fifth Amendment rights. Had the Court not dismissed Green, the author argues that it should have affirmed the decision below and not admitted his confession. When presented with a case raising issues similar to Green in the future, the Note concludes that the Court should hold that neither the passage of time nor the entering of a guilty plea should end the Edwards presumption arising from a request for counsel. The only "significant event" that should end the Edwards presumption is the release of a suspect from custody.