The Right to Counsel and Former Justice Benjamin

As a West Virginian, you have two documents to protect you from the power of the state: the federal and state constitutions. The federal constitution sets a minimum standard of rights that the state cannot take away, but the state is free to give its citizens more rights than given by the federal constitution.

In both documents there exists the right to counsel. It is guaranteed by the Sixth Amendment to the federal constitution and Article III, Section 14 of the State Constitution. In short, you have a right to counsel whether you can afford it anytime you have been charged with a crime under these sections. There is, of course, the Fifth Amendment right to counsel as well that protects you from being forced to make a statement while in custody.

Justice Benjamin waded into the intricacies of the Sixth Amendment right to counsel with his decision in State v. Bevel (2013). In that case, William Bevel was originally charged with the sexual abuse of S.H. and requested that counsel be appointed at his initial appearance. Then, police interrogated him without his attorney present on the slightly different charge of sexual assault of S.H., where he made incriminating statements. This police action was fine and dandy under the federal constitution, but Justice Benjamin asserted that West Virginia would place higher standards on police and not allow this type of uncounseled interrogation.

Then, in State v. Bouie (2015), Justice Benjamin took away these additional protections without overruling State v. Bevel.

Even though Justice Benjamin claimed adherence to the doctrine of "stare decisis," a legal principle designed to give finality to points of law, his decision in State v. Bouie should leave doubts in the minds of West Virginians about the limits of police action.

If the police inform you that you are not free to leave and request that you waive your right to have an attorney present, then you should say no! Your rights under the Fifth Amendment are clear. If you do waive your rights and decide to make a statement, then the Sixth Amendment will not protect you if you incriminate yourself. It is unclear at this time if you still have protections under Article III, Section 14.