Invoking the Miranda Right to Counsel: The Defendant's Burden

By Crawford, Kimberly A. | The FBI Law Enforcement Bulletin, March 1995 | Go to article overview

Invoking the Miranda Right to Counsel: The Defendant's Burden


Crawford, Kimberly A., The FBI Law Enforcement Bulletin


Beginning with the 1966 Supreme Court decision in Miranda v. Arizona,(1) law enforcement has endured three decades of court-imposed restraints on its ability to engage in custodial interrogation. The most significant of these restraints curtails law enforcement's ability to conduct custodial interrogation once the suspect invokes the right to counsel. The practical result of Miranda and its progeny is that a custodial suspect's invocation of the right to counsel effectively precludes any further government-initiated attempts at interrogation outside the presence of counsel.(2)

Because the invocation of Miranda rights, particularly the right to counsel, has such an onerous impact on law enforcement's ability to conduct interrogations, recent court decisions have begun to impose some limitations on a custodial suspect's ability to invoke that right.(3) Specifically, to ensure that a suspect's invocation of rights is not frivolous, the courts are requiring that the Miranda right to counsel be invoked unequivocally and in a timely manner.

This article reviews the recent court decisions and assesses their potential impact on the ability of custodial suspects to invoke the right to counsel. It then suggests ways in which law enforcement agencies can incorporate these new guidelines into their interrogation policies.

Invocation Must Be Unequivocal

In Davis v. United States,(4) the Supreme Court recently considered the degree of clarity necessary for a custodial suspect to invoke the Miranda right to counsel. The case arose when agents of the Naval Investigative Service (NIS) interrogated the defendant in connection with the beating death of a sailor.(5) Initially, the defendant waved his Miranda rights; but approximately 90 minutes into the interview, he remarked, "Maybe I should talk to a lawyer." At that point, the interrogation ceased long enough for the investigating agents to ask the defendant clarifying questions regarding his desire to consult with an attorney. When the defendant stated, "No, I don't want a lawyer," the interrogation continued and resulted in the elicitation of incriminating statements.

Prior to his court-martial, the defendant moved to suppress his statements on the grounds that the remark, "Maybe I should talk to a lawyer," was an invocation of his right to counsel and that further attempts by the government to interrogate him outside the presence of counsel violated his constitutional rights. The government, on the other hand, argued that the remark in question was, at best, an equivocal invocation and that the investigators were justified in asking clarifying questions. The government contended that once the defendant emphatically stated he did not want a lawyer, the subsequent interrogation was lawful. Agreeing with the government, the court denied the motion to suppress, and the defendant subsequently was convicted of murder.(6)

On review, the Supreme Court considered and rejected the defendant's argument that any mention of a lawyer, however ambiguous, is sufficient to invoke the right to counsel and that all further uncounseled interrogation necessarily must cease. Similarly, the Court declined to adopt the government's position that an ambiguous request for counsel constitutes an "equivocal invocation" that requires interrogators to seek clarification before further interrogation. Instead, the Court took a firmer stance and held that an equivocal request for a lawyer is insufficient to invoke the right to counsel and that there is no need for clarifying questions before proceeding with the interrogation.

In reaching its conclusion, the Court stressed the need for a "bright line"(7) rule that easily could be applied by law enforcement officers "in the real world of investigation and interrogation without unduly hampering the gathering of information."(8) To require interrogators to ask clarifying questions when an ambiguous request for counsel is voiced would obviate the "bright line" effect the Court was aiming for and force officers to "make difficult judgment calls about whether the suspect in fact wants a lawyer even though he hasn't said so, with the threat of suppression if they guess wrong. …

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