1.12 - B. Request By Suspect For Counsel

JurisdictionNew York

B. Request by Suspect for Counsel

A request for counsel must be unequivocal. It is a mixed question of law and fact.27 Divination may be difficult.28 When a suspect, in custody or not in custody, in any manner,29 informs law enforcement that he wants a lawyer, all questioning must stop. If the suspect, in the presence of police, asks a third party to obtain counsel for him, the same rule applies.30 Where a minor has not requested an attorney, but the police have effectively cut off the minor’s access to persons who might seek representation for him, a subsequent statement will be suppressed.31 If, after requesting representation, a suspect in custody changes his or her mind and announces he or she will answer questions without an attorney present, the original request for counsel must still be honored, since once a suspect initially invokes his or her right to counsel no valid waiver of that right can take place except in the actual presence of counsel.32 Thus, in New York, a person in custody is adequate to the task of deciding when to tell police he has or wants a lawyer for purposes of invoking his or her state right to counsel, but not vice versa. A person who is not in custody—while still not in custody—may change his or her mind and waive the presence of counsel.33


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Notes:

[27] . People v. Edwards, 14 N.Y.3d 733, 899 N.Y.S.2d 65 (2010).

[28] . People v. Pacquette, 17 N.Y.3d 87, 926 N.Y.S.2d 856 (2011).

[29] . Smith v. Illinois, 469 U.S. 91, 93 (1984) (“[Y]eah. I’d like to do that” after being told, “You have the right to consult with a...

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