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THE CHAIRMAN: Are you ready for the
question ?
(Call for the question.)
The Clerk will ring the quorum bell.
The question arises on the adoption of
Amendment No. 11. A vote Aye is a vote in
favor of the amendment. A vote No is a
vote against. Cast your votes.
Has everybody voted. Does any delegate
desire to change his vote?
(There was no response.)
The Clerk will record the vote.
There being 109 votes in the affirmative
and 2 in the negative, the motion is carried.
The amendment is adopted.
For what purpose does Delegate Winslow
rise ?
DELEGATE WINSLOW: Mr. Chairman,
may I ask the Chairman of the Committee
a question about this section?
THE CHAIRMAN: Delegate Kiefer, will
you take the floor and yield to a question?
DELEGATE KIEFER: Yes, sir.
THE CHAIRMAN: Delegate Winslow.
DELEGATE WINSLOW: In line 6, Dele-
gate Kiefer, there is a statement, "to have
the assistance of counsel for the defense."
At what point does this right appear?
THE CHAIRMAN: Delegate Kiefer.
DELEGATE KIEFER: Delegate Win-
slow, this is a matter of many court deci-
sions, and this would occur after his arrest.
THE CHAIRMAN: Delegate Winslow.
DELEGATE WINSLOW: How soon after
his arrest?
THE CHAIRMAN: Delegate Kiefer.
DELEGATE KIEFER: I yield to Dele-
gate Willoner.
Maybe he knows more specifically.
THE CHAIRMAN: Delegate Willoner.
DELEGATE WILLONER: The counsel
will be provided before the confession is
obtained. Assuming there is no confession
of the defendant, counsel would only be re-
quired in Maryland at the time of arraign-
ment. Thereafter it is not required at pre-
liminary hearing because that is not an
essential state of .the proceedings. But if
you are going to get a confession, he has
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to at least be informed of counsel and the
rights provided in the Miranda case before
a confession could be obtained.
THE CHAIRMAN: Delegate Winslow.
DELEGATE WINSLOW: Then, Mr.
Chairman, this then is subject entirely to
court interpretation.
THE CHAIRMAN: Delegate Willoner.
DELEGATE WILLONER: Yes, this pro-
vision is subject to court interpretation. It
is challenged to some extent by what hap-
pened in the White Case, but in the White
case the defendant pleaded guilty. In that
proceeding, the guilty plea was used against
him in the trial. The court said at that stage
he must have counsel before that plea of
guilty at preliminary hearing was used
against him. If he stands mute and nothing
happens at the preliminary hearing, except
the determination of whether or not there
is probable cause to hold him for the grand
jury, counsel is not required at that stage.
Counsel is required at the present time at
the first time of arraignment and, of course,
during the trial itself and then again as
you receive evidence, you require counsel.
THE CHAIRMAN: Delegate Willoner,
the Chair is a bit puzzled. I had been under
the impression that the decisions to which
you refer, as to the right of one to the
assistance of counsel, arose under the due
process clause rather than under clauses
similar to this. I also understood that this
particular clause related only to the assist-
ance of counsel for his defense, which would
come at a later stage.
Is the Chair clear on that?
DELEGATE WILLONER: I hope the
Chair is right on that. It comes under the
Fifth Amendment, with the right to protec-
tion, and the right to remain silent. It is
discussed in Miranda case and to assure
this right to protection the court says that
you must have counsel or be advised of
your right to counsel. I assumed that to be
what he was getting at. However, if he is
talking about the mere assistance of counsel
with trial purposes the first time it is re-
quired is at arraignment.
THE CHAIRMAN: Delegate Kiefer.
DELEGATE KIEFER: May I make one
point clear? This is merely a restatement of
what is presently in the declaration of
rights now and what is also in the Sixth
Amendment of the federal Constitution.
We have no intention to add to or detract
from what is the present status of law.
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