The subject may sign another waiver of rights based on these curative warnings. This second waiver must meet
the tests we discussed earlier. Remember that tests for legal waiver of rights order that the subject waives his or
her rights--
o
Voluntarily.
o
Knowing and understanding the rights he or she is giving up.
Right to Counsel
Remember that a subject has the right to a lawyer prior to and during--
o
Any interrogation or questioning.
o
The identification process.
This right is founded on the Sixth Amendment. "In all criminal prosecutions the accused shall... Have the
assistance of counsel for his defense." The purpose of having a lawyer present is to ensure due process of law.
"Due process" means "fundamental fairness." For civilians, this right arises after legal proceedings have begun.
For military personnel, this right arises after--
o
Charges have been preferred.
o
The subject is in pretrial custody.
The difference between civilian and military law is based on MRE 321. In the military, due process is based on
the Sixth Constitutional Amendment and the Military Rules of Evidence.
Identification Process
Identification procedures can be part of the legal process. It is important that identification procedures:
o
Not be "suggestive."
o
Reduce the possibilities of misidentification.
There are various types of identification procedures. They are lineups, photographic arrays, and one-on-one
showings.
These procedures could lead to evidence that could result in an admission or confession. However, a subject's
right to have a lawyer present during an identification procedure is restricted. The courts feel that some
identification procedures permit manipulation of the circumstances. Other procedures permit a greater degree of
"suggestive characteristics." Examples of manipulation and suggestive characteristics will follow. These are the
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