In light of the ubiquity of cell phones, the admissibility of a defendants consultations with counsel prior to arrest is an issue that is likely to occur more often than in the past.
Unfortunately, the courts discussion of pre-arrest consultation of counsel has potential to be a trap for the unwary attorney.
The court declined to decide the merits of the issue, and suggests that it is one of first impression in the circuit. However, there is one case that does discuss the issue in dicta, which parties should be aware of when the issue arises again. Dean v. Young, 777 F.2d 1239 (7th Cir. 1985).
In Dean, the sister of a homicide suspect arranged for him to have counsel, and counsel advised him not to speak to police. At trial in state court, the prosecutor elicited substantive evidence of both Deans silence and his representation by counsel.
After conviction and affirmance in Wisconsins appellate courts, Dean sought habeas corpus in federal court. The Seventh Circuit held that the admission of the evidence of Deans representation by counsel did not violate his due process rights.
However, it only did so, because of the context of that particular case. Because counsel was retained by his sister, and the attorney advised him not to speak to police, the court concluded that the reference to counsel helped Dean, by providing a good reason for his silence and blunting the prosecutors effort to use his silence as evidence of guilt. Dean, 777 F.2d at 1242.
In other contexts, however, the court opined that it could violate due process to present evidence that a defendant consulted counsel.
The court wrote as follows: A reference to a suspects decision to retain counsel also draws into question rights secured by the due process clause of the fourteenth amendment. If the prosecutor had argued to the jury something along the lines of: The defendant went right out and got a lawyer, so you can be sure he knew he was guilty, Dean would have a strong argument. (We need not decide if it would be powerful enough.) Id.
Thus, there is some prior Seventh Circuit precedent on the issue of pre-arrest consultation with an attorney, albeit not much.
The particular facts of this case raise another interesting question the court does not address. Muhammads action in calling an attorney after the Juarez sisters could be interpreted in two ways: he was consulting counsel for legal advice; or he was arranging counsel to represent the sisters.
It is a plausible argument that that the due process clause would render admission of the call to counsel inadmissible under the first interpretation, but not the second.
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David Ziemer can be reached by email.