Oregon Supreme Ct - April 7, 2016

by: Aalvarez • April 8, 2016 • no comments

Article I, Section 11 - Right to Counsel - Questioning an Already Represented Defendant

The Oregon Supreme Court sets forth a new test for determining the permissible scope of the questioning of a defendant who is represented by counsel on a criminal matter: Officers may not question a defendant who is represented by counsel on other matters without notifying counsel where it is objectively reasonably foreseeable that the questioning will lead to incriminating evidence concerning the offense for which the defendant. Whether the offenses are sufficiently related as to implicate the right to counsel will depends on the facts and circumstance of each case. The “reasonably foreseeability” test is an objective test and does not turn on the subjective impression or belief of the questioner.

Here, defendant was charged with sexually abusing a member of his family. While in jail and without notifying the defendant’s counsel on that case, the investigator also interviewed the defendant regarding abuse of two other young females – also family members. The Oregon Supreme Court held that this questioning was unlawful because it was reasonably foreseeable that the detective's questioning about the two other young females would elicit incriminating evidence about the charged abuse of the other family member. The alleged conduct in both cases occurred at the defendant’s home, against young females related to the defendant, and both sets of allegations were investigated by the same detective. Thus, it was reasonably foreseeable that questioning the defendant about the second set of allegations would incriminate him with regards to the case which he had obtained representation. State v. Prieto-Rubio, 359 Or. 16 (2016)