Miscellaneous Interrogation Issues

by James P. Manak, AELE Amicus Counsel

E-mail: lelp@xnet.com (Jim Manak)

The Problem of Ambiguous or Unclear References to the Right to Counsel by Suspects.

I. Introduction

When an accused has invoked his right to have counsel present during custodial interrogation all interrogation must stop, and a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. This was established by the U.S. Supreme Court in Edwards v. Arizona, 451 U.S. 477 (1981). Once an accused has expressed his desire to deal with the police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.

The Court said it was inconsistent with Miranda [v. Arizona, 384 U.S. 436 (1966)] for the authorities to question an accused in custody if he has clearly asserted his right to counsel.

The problem for interrogators is how to determine whether a suspect in custody has invoked his right to counsel. We all know that many suspects use inarticulate and often ambiguous language in referring to counsel after they have been given their Miranda rights.

II . The Supreme Court Rule

The Supreme Court addressed suspects ambiguous references to counsel in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). Davis, while in custody, was interviewed by agents of the Naval Investigative Service (NIS) concerning a homicide. The court described the events as follows:

About an hour and a half into the interview, petitioner said, Maybe I should talk to a lawyer. According to the uncontradicted testimony of one of the interviewing agents, the interview then proceeded as follows: [W]e made it very clear that were not here to violate his rights, that if he wants a lawyer, then we will stop any kind of questioning with him, but we werent going to pursue the matter unless we had it clarified is he asking for a lawyer or is he just making a comment about a lawyer, and he said, []No, Im not asking for a lawyer, and then he continued on, and said, No, I dont want a lawyer. After a short break, the agents reminded petitioner of his rights to remain silent and to counsel. The interview then continued for another hour, until petitioner said, I think I want a lawyer before I say anything else. At that point, questioning ceased.

At Davis general court-martial, his statements during the questioning were admitted and the United States Court of Military Appeals affirmed.

The Supreme Court also affirmed, stating as follows:

The applicability of the rigid prophylactic rule of Edwards requires courts to determine whether the accused actually invoked his right to counsel. To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.

Rather, the suspect must unambiguously request counsel. As we have observed, a statement either is such an assertion of the right to counsel or is not. Smith v. Illinois, 469 U.S. 91 (1984) at 97-98 ... Although a suspect need not speak with the discrimination of an Oxford don, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officer stop questioning a suspect.

We decline petitioners invitation to extend Edwards and require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney. The rationale underlying Edwards is that the police must respect a suspects wishes regarding his right to have an attorney present during custodial interrogation. But when the officers conducting the questioning reasonably do not know whether or not the suspect wants a lawyer, a rule requiring the immediate cessation of questioning would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, because it would needlessly prevent the police from questioning a suspect in the absence of counsel even if the suspect did not wish to have a lawyer present. Nothing in Edwards requires the provision of counsel to a suspect who consents to answer questions without the assistance of a lawyer ... .

In considering how a suspect must invoke the right to counsel, we must consider the other side of the Miranda equation: the need for effective law enforcement. Although the courts ensure compliance with the Miranda requirements through the exclusionary rule, it is police officers who must actually decide whether or not they can question a suspect. The Edwards rulequestioning must cease if the suspect asks for a lawyerprovides a bright line that can be applied by officers in the real world of investigation and interrogation without unduly hampering the gathering of information. But if we were to require questioning to cease if the suspect makes a statement that might be a request for an attorney, this clarity and ease of application would be lost. Police officers would be forced to make difficult judgment calls about whether the suspect in fact wants a lawyer even though he hasnt said so, with the threat of suppression if they guess wrong. We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.

Of course, when the suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. That was the procedure followed by the NIS agents in this case. Clarifying questions help protect the rights of the suspect by insuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspects statement regarding counsel. But we decline to adopt a rule requiring officers to ask clarifying questions. If the suspects statement is not an unambiguous or a unequivocal request for counsel, the officers have no obligation to stop questioning him.

III. Lower Court Reaction

The lower courts have been quite liberal in interpreting Davis-type situations.

For example, in Clark v. Murphy, 2003 WL 187215 (9th Cir. 2003), the court held that neither a defendants statement, made during a custodial interrogation in which he had been read his Miranda rights, that I think I would like to talk to a lawyer, nor his subsequent question to the police detective during the interrogation, should I be telling you, or should I talk to an attorney? constituted an unambiguous and unequivocal request for counsel so as to preclude further questioning without an attorney present. It said the defendant failed to articulate his desire to have counsel present sufficiently clearly that a reasonable police officer would have understood the statement to be a request for counsel.

A reasonable police officer in that situation may or may not have understood defendant to be asking for a lawyer, and the likelihood that a suspect would wish counsel to be present is simply not the proper test. The court said that if a questioning officer is reasonably unsure as to whether or not the suspect wants a lawyer, then to require cessation of questioning would transform the Miranda safeguards into irrational obstacles to legitimate police investigative activity.

See also, State v. Payne, 833 So.2d 927 (La. 2003), where a court held that a defendants questions to a police detective may I call a lawyer-can I call a lawyer were too ambiguous and equivocal to be considered a sufficient invocation of the Miranda right to counsel.

And in State v. Barnes, 572 S.E.2d 165 (N.C. App. 2002), the court ruled that a defendants statement, in which he asked whether or not he needed an attorney, was not sufficient to constitute an invocation of the right to counsel that would require a police officer to cease questioning of the defendant.

The court said:

In this case, defendant merely asked whether he needed an attorney, not that he actually wanted an attorney. Defendants ambiguous statement fails to meet the bright line test established by Davis as a guide for police in investigation and interrogation. Since defendant did not invoke his right to counsel, his answers to officer Millers questions were admissible. The trial court concluded defendant was not in custody. Defendant was subjected neither to a formal arrest nor to a restraint of freedom of movement to a degree associated with a formal arrest. Defendant did not unambiguously express his intent to have the aid of counsel. Therefore, he did not invoke his right to counsel, thereby requiring that the questioning cease.

IV. A Practical Approach

In light of Davis, the authors of Inbau, Reid, Buckley & Jayne, Criminal Interrogation and Confessions (4th Ed. 2001), pp. 499-500, . . . suggest that the prudent course for an interrogator to follow after receiving an ambiguous request for counsel is to say to the suspect, Its up to you; do you want a lawyer or not? If the suspect responds with a Yes, that will preclude any interview; if he says no and also acknowledges a willingness to talk, the interrogator may proceed to inquire about the matter under investigation. This approach, suggested (although not mandated) by the Court in Davis, will help to avoid claims by defendants that an interrogator ignored his attempt to exercise his right to counsel.