The answer may not be known until the trial begins.
After hearing arguments Monday in the final hearing before a change of venue to Norman, District Judge Candace Blalock said she would issue her ruling on the taped confession "under seal.”
Prosecutors argue that the taped confession should be included because Underwood was not coerced and willingly made the confession to law enforcement. Defense attorneys argued the confession should not be part of the evidence because Underwood's constitutional rights were violated.
Prosecutors say Underwood's taped confession and the fruits of any search of Underwood's apartment should be allowed because the defendant willingly gave officers the confession and his consent to search the grounds to look for Jamie Rose Bolin.
Assistant District Attorney Susan Caswell said that after finding what was believed to be the victim's shirt, the FBI agent on the scene was within his rights to ask Underwood where the girl was before reading Underwood his rights. Under what is commonly referred to as the "rescue doctrine,” Caswell explained, the law allows for an exception in procedures when human life might hang in the balance.
As to allegations that police did nothing to secure an attorney for Underwood after he asked for one, Caswell said, police are not required to do anything of the sort.
"When a defendant requests an attorney, you don't have to get them one,” she said. "All that has to be done is to cease interrogation, and that was done.”
Defense attorneys for Underwood said that while issues themselves may seem to have an explanation, they urged Blalock to look at the whole picture, which they say combines to form a coercive situation.
While agents were not required to stop Underwood from talking about the crime after he asked for a lawyer, it does not mean that the testimony can be allowed in court, defense argued.
Defense attorneys argued that the environment surrounding Underwood was designed to break his will, citing these reasons:
•Not securing Underwood in a holding cell;
•Delays getting booked into jail and being arraigned;
•Asking Underwood to sign a search waiver after he asked for a lawyer.
Defense lawyers argue that when someone invokes their constitutional rights, that means officers can't question them any further and they can't ask the suspect for permission to search their house.
Jury selection in Underwood's capital murder trial will begin Feb. 19 in Cleveland County District Court in Norman, where the trial has been moved.
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