Academic journal article Journal of Criminal Law and Criminology

Fifth Amendment - Responding to Ambiguous Requests for Counsel during Custodial Interrogations

Academic journal article Journal of Criminal Law and Criminology

Fifth Amendment - Responding to Ambiguous Requests for Counsel during Custodial Interrogations

Article excerpt


In Davis v. United States,(1) the United States Supreme Court resolved how law enforcement officers should respond during custodial interrogation of a suspect, when that suspect makes an ambiguous or equivocal request for counsel. The Court held that, after suspects knowingly and voluntarily waive the rights articulated in Miranda v. Arizona,(2) law enforcement officers may continue questioning them until and unless they clearly request an attorney.(3) The Court in Davis believed that the suspect's remark, "Maybe I should talk to a lawyer," was not a clear request for counsel and, thus, held that the law enforcement officers did not violate the suspect's Fifth Amendment privilege against compulsory self-incrimination by continuing to question him.(4)

This Note first addresses Supreme Court precedent safeguarding the Fifth Amendment and then explores the three approaches to ambiguous requests for counsel that state and circuit courts developed prior to Davis. This Note then argues that the Court's ruling ignores the central precepts of the Miranda case law and fails to provide adequate measures to counter the realities of custodial interrogations. Additionally, this Note argues that the Court should have promulgated a rule that obligates law enforcement officers to clarify any ambiguity before further questioning suspects. To effectively safeguard suspects' privileges under the Fifth Amendment, this obligation to clarify should prohibit law enforcement officers from badgering suspects into converting their previously ambiguous request for counsel into a clear waiver of the right to counsel. If any ambiguity remains, the officers should consider the request an invocation of the right to counsel.


The Fifth Amendment to the United States Constitution guarantees to all people the privilege to be free from compulsory self-incrimination.(5) Since 1966, Miranda has served as the touchstone for the exploration of the scope of that privilege during a period of custodial interrogation.(6) To safeguard the Fifth Amendment privileges, Miranda specifically requires at the outset that authorities clearly inform persons in custody that they have the right to remain silent, that anything they say can and will be used against them in court, that they have the right to consult with an attorney and to have an attorney with them during the interrogation, and that if they cannot afford an attorney, the court will appoint an attorney to represent them.(7) After receiving these warnings, they may "voluntarily, knowingly, and intelligently" waive these rights.(8) However, if the individual "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him."(9)

Prosecutors cannot use statements obtained from a suspect in custody against the suspect in court unless the prosecution demonstrates that authorities effectively applied the Miranda procedural safeguards to preserve the suspect's Fifth Amendment rights.(10) The Court in Miranda created these procedural safeguards to adequately ensure that the accused know their rights and that the police honor them.(11) The Court clearly recognized that "[a]n individual swept from ... familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to ... techniques of persuasion ... cannot be otherwise than under compulsion to speak."(12) Without such safeguards, the "inherently compelling pressures" of custodial interrogations will undermine suspects' resistance and compel them to speak where they would otherwise remain silent or request the assistance of counsel.(13)

In Edwards v. Arizona,(14) the Court fine-tuned the application of Miranda. The Court in Edwards held that when an accused invokes the right to counsel, all questioning must cease until counsel arrives or until the accused initiates further conversation. …

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