Limitation of the Article I, Section 11 Right to Counsel to Formal Charges: Precharging Interrogation Excluded—State v. Kilby

Introduction

In State of Oregon v. Randall Richard Kilby (373 Or 557, May 1, 2025), the Oregon Supreme Court addressed whether a suspect’s right to counsel under Article I, section 11, of the Oregon Constitution is triggered at the moment of arrest and pre-charge custodial interrogation (outside the DUII context), or only upon the initiation of formal charges. Randall Kilby had been arrested on an unrelated homicide investigation but was already represented by counsel for an earlier, uncharged death investigation (of DB). Despite his attorney’s clear instruction that all questions about DB be routed through counsel, Kilby was warned of his Miranda‐style rights and then questioned about DB without counsel present. The Deschutes County Circuit Court suppressed those statements under Article I, section 11. On direct appeal, the state urged that the Article I, section 11 right to counsel attaches only with formal charging—except for the narrow breath‐test context of DUII (per Spencer)—and that Kilby’s pre-charge interrogation did not trigger that right. The Supreme Court agreed, reversed the suppression order, and remanded for trial.

Summary of the Judgment

Chief Justice Flynn, writing for a unanimous court, held that:

Article I, section 11 (“In all criminal prosecutions, the accused shall have the right … to be heard by himself and counsel”) does not confer a right to counsel prior to formal charging, except in the specific DUII breath‐test context recognized in Spencer.
Once a prosecution has formally commenced, the right to counsel attaches and protects all custodial interrogations related to the charged offense—requiring counsel’s presence whether or not requested by the defendant.
Kilby’s interrogation about DB occurred before any criminal prosecution of him for DB’s death. Therefore, the circuit court erred in suppressing his statements under Article I, section 11.
The Court declined to consider an unpreserved alternative argument under Article I, section 12 (the right against self‐incrimination and derivative right to counsel), leaving that issue for further proceedings if properly raised below.

Analysis

1. Precedents Cited

State v. Davis (350 Or 440 (2011)): Held that the Article I, section 11 right to counsel “attaches” only upon initiation of a criminal prosecution (formal charges), with a thorough analysis of text, history, and case law.
State v. Craigen (370 Or 696 (2023)): Confirmed the scope of Article I, section 11 once it attaches—defendants have the right to counsel present at any related interrogation, regardless of request, and cannot waive that presence without consulting counsel.
State v. Sparklin (296 Or 85 (1983)): Described the value of counsel at interrogation but limited the right to the “criminal episode” for which the defendant had been charged.
State v. Spencer (305 Or 59 (1988)): Recognized a narrow pre-charge right under Article I, section 11—that an arrested DUII suspect is entitled, upon request, to a reasonable opportunity to consult counsel before deciding on a breath test.
State v. Swan (363 Or 121 (2018)): Reaffirmed that Spencer’s pre-charge right is limited to DUII breath tests.
State v. Vondehn (348 Or 462 (2010)): Outlined the Article I, section 12 requirement of Miranda‐style warnings and the prohibition on continued interrogation once counsel is requested.
State v. Turnidge (359 Or 364 (2016)): Clarified that any equivocal request for counsel during custodial interrogation must be treated as invoking the right and interrogation must cease.

2. Legal Reasoning

The Court’s analysis proceeded in two stages:

Commencement (“Attachment”) of the Article I, section 11 Right:
- Examining the plain text—“in all criminal prosecutions, the accused shall have the right … to be heard by himself and counsel”—the Court concluded that “criminal prosecution” connotes formal prosecutorial action (e.g., indictment or charge), not mere custodial interrogation.
- A historical survey demonstrated that, at the time of adoption (1857), “criminal prosecution” referred to the trial or preparatory steps following formal charging. Subsequent expansions of the right to pretrial events (e.g., line-ups, psychiatric exams) similarly occurred only after a formal charge, except for the DUII‐breath‐test exception.
- The sole exception is Spencer’s narrow holding that DUII suspects facing a breath‐test decision are “ensnared in a prosecution” by the “full legal power of the state,” justifying a limited pre-charge right to consult counsel.
Scope of the Right Once Attached:
- Drawing on Craigen, the Court reiterated that, once charged, a defendant has a categorical right to have counsel present at any interrogation concerning the charged crime, whether or not the attorney is affirmatively requested.
- The Court declined to extend Spencer’s breath‐test‐only right to other pre-charge interrogations, noting that ordinary custodial interrogation is governed by Article I, section 12—requiring Miranda‐style advisements and immediate cessation if counsel is requested—rather than by Article I, section 11.

3. Impact and Implications

State v. Kilby cements a clear boundary in Oregon practice and constitutional law:

Police Procedure: Police may continue to question a suspect about uncharged matters without counsel present, provided they issue Miranda‐style warnings. Officers need not notify or await the suspect’s attorney unless the interrogation concerns a formal charge or the narrow DUII‐breath‐test context.
Criminal Defense Strategy: Defense counsel must be aggressive in seeking suppression under Article I, section 12, or in securing formal charging in order to invoke the broader Article I, section 11 protections. Attorneys should explicitly raise Article I, section 12 waiver arguments at suppression hearings.
Judicial Review: Courts will apply the two-pronged framework: first determining attachment under Article I, section 11, then, if attached, enforcing counsel‐presence rights at interrogation.
Future Litigation: Challenges to pre-charge interrogations will turn on Article I, section 12 grounds (self-incrimination/derivative counsel), not on Article I, section 11, except in DUII breath‐test scenarios.

Complex Concepts Simplified

Attachment vs. Scope of the Right: “Attachment” asks when the state’s obligation to provide counsel begins. “Scope” asks what protections counsel provides after that point.
Article I, Section 11 (Right to Counsel in “Criminal Prosecutions”): Applies only once formal charges are filed—guaranteeing counsel’s presence at all interrogations about the charged offense.
Spencer Exception: A DUII suspect, arrested and facing a breath‐test choice, is effectively in a “prosecution” and therefore entitled, upon request, to a brief but reasonable opportunity to consult counsel before deciding on the test.
Article I, Section 12 (Right Against Self-Incrimination): Applies to all custodial or similarly compelling contexts. Requires Miranda‐style warnings and immediate cessation of questioning if counsel is requested.
“Miranda‐Style” Advisements in Oregon: Under Article I, section 12, officers must inform suspects that they have the right to remain silent, the right to consult counsel, and that any statements may be used against them.

Conclusion

State v. Kilby clarifies and confines the Article I, section 11 right to counsel to the period after formal charging—except for the narrowly defined DUII breath-test context of Spencer—and reaffirmed that counsel’s presence at interrogation is inviolable once that right attaches. Pre-charging custodial interrogations regarding uncharged offenses remain subject only to Article I, section 12 protections (Miranda-style warnings and cessation upon counsel invocation). The decision guides police practice, prosecutorial charging strategy, and defense counsel’s approach to suppression motions, and sets the stage for further exploration of Article I, section 12 waiver issues in the trial court.