concurring in result.
I respectfully concur in result. As stated by the United States Supreme Court in McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), the Sixth Amendment right to counsel “does not attach until a prosecution is commenced, that is, ‘at or after the initiation of adversary judicial criminal proceedings— whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” Id. at 175, 111 S.Ct. 2204 (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)).1 *128Indiana case law following Kochersperger continues to acknowledge that the right to counsel does not attach until the initiation of criminal proceedings. See Cox v. State, 854 N.E.2d 1187, 1195 (Ind.Ct.App.2006) (“It is well settled that the Sixth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against the defendant.”) (quoting Dullen v. State, 721 N.E.2d 241, 242 (Ind.1999), cett. denied, 531 U.S. 847, 121 S.Ct. 118, 148 L.Ed.2d 73 (2000)); Ackerman v. State, 774 N.E.2d 970, 977 n. 9 (Ind.Ct.App.2002) (noting the “long recognized right of an accused in this state to have counsel at all critical stages following the point of arrest”); Badelle v. State, 754 N.E.2d 510, 537-38 (Ind.Ct.App. 2001) (noting that although an accused has a right to counsel under both the Sixth Amendment and Article I, section 13 of the Indiana Constitution at critical stages of the proceedings, “[w]e find no support for the assertion that the right to counsel can attach earlier than the initiation of criminal proceedings.”) (quoting Callis v. State, 684 N.E.2d 233, 238 (Ind.Ct.App.1997)).
As a concurring judge in Kochersperger, I continue to believe that the right to counsel does not attach until criminal proceedings are initiated by the filing of an information or indictment. 725 N.E.2d at 923-24. I therefore cannot agree with the majority’s conclusion that Caraway found himself at a critical stage when presented with the polygraph stipulation prior to any charges being filed against him. Nonetheless, Caraway should have been advised that he was entitled to the presence and advice of counsel for the Fifth Amendment purpose of avoiding self-incrimination during any custodial interrogation by police. Unlike the defendant in Kochersperger, Caraway was not so advised prior to signing the stipulation that he would take a polygraph examination and that the results could be used at trial. See Kochersperger, 725 N.E.2d at 922-23 (“Kochersperger was fully advised of his right to counsel prior to executing the stipulation ... and waived such right by signing the advice of rights form”) (emphasis added). The timing of the advice of rights is an important distinction between Kochersperger and this case. On the basis that Caraway was not advised of and did not waive his right to counsel before signing the stipulation, rather than on the basis of the Sixth Amendment, I agree that the trial court should have granted Caraway’s motion to suppress, and I therefore concur in result.
. As the Court in McNeil made clear, there is a difference between the Sixth Amendment *128right to counsel, which does not attach until “after the adverse positions of government and defendant have solidified,” id. at 177-78, 111 S.Ct. 2204 (quotation and citation omitted), and the Fifth Amendment interest guaranteed by Miranda, which “attaches whether or not the 'adversarial relationship' produced by a pending prosecution has yet arisen,” id. at 178, 111 S.Ct. 2204.