Fifth Amendment - responding to ambiguous requests for counsel during custodial interrogations.

AuthorLevenberg, Thomas O.
PositionSupreme Court Review - Case Note
  1. INTRODUCTION

    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.

  2. BACKGROUND

    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.(15) According to the Court in Edwards, the fact that suspects respond to additional policeinitiated questioning does not establish a valid waiver of their rights even though they had been advised of those rights.(16) The Court in Edwards emphasized that "it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel."(17)

    Miranda and Edwards clearly mandate that a custodial interrogation cease immediately when the suspect asserts the right to counsel. The assertion of this right is a "significant event" that calls for an end to the interrogation until an attorney is present.(18) Indeed, the Court described Miranda as a "rigid rule that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease"(19) and has recognized the "undisputed right" to remain silent and to be free from questioning "until he ha[s] consulted with a lawyer."(20)

    Before Davis, state and federal courts applied three different standards to determine whether a suspect's ambiguous or equivocal reference to an attorney invoked the right to counsel. Courts in some jurisdictions held that any reference to counsel by the accused, however ambiguous or equivocal, requires the immediate cessation of the interrogration.(21) Other jurisdictions required a suspect's mention of counsel to meet a "threshold standard of clarity,"(22) with comments falling short of the threshold not sufficient to invoke the right to counsel.(23) Still other jurisdictions held that all questioning must immediately cease in response to an ambiguous reference to counsel, but the interrogators may ask questions designed to clarify the individual's desires concerning counsel.(24)

    The Supreme Court had previously declined to promulgate a uniform rule with respect to a suspect's ambiguous or equivocal request for or reference to counsel.(25) In Smith v. Illinois,(26) a suspect had responded to Miranda warnings by stating to the police "Uh, yeah. I'd like to do that."(27) Concluding that this was an unambiguous request for counsel, the Court determined that it was unnecessary to formulate a rule to handle ambiguous statements.(28) In Connecticut v. Barrett,(29) the Court once again found that the defendant's statements did not represent an ambiguous or equivocal response to the Miranda warnings and thus, left open the question it finally addressed in Davis.(30)

    A. THE THRESHOLD OF CLARITY RULE

    The threshold of clarity rule required that suspect's mention of counsel meet a "threshold standard of clarity."(31) Under this approach, suspects would not invoke their right to counsel--and law enforcement officers would not be obligated to stop the interrogation or clarify the situation--if the assertion fell short of this threshold.(32) In People v. Krueger,(33) the leading case promoting the threshold of clarity rule,(34) the defendant had been convicted of murder and sentenced to serve twenty to fifty years in prison.(35) Prior to his trial, Krrueger moved to suppress inculpatory statements that he made to the police during a custodial interrogation.(36) Krueger had received his Miranda warnings at the start of the investigation, but subsequently waived his rights both orally and in writing.(37) The detectives began the interrogation with questions concerning unrelated burglaries.(38) When the detectives started to question him about the killing, Krueger said, "Wait a minute. Maybe I ought to have an attorney. You guys are trying to pin a murder rap on me, give me 20 to 40 years."(39) One of the detectives replied that the news media, not the police, were calling it murder and that only two people knew what really happened and one of them was dead.(40) Krueger then asked the officers how they knew the stabbing was not in self-defense.(41) The detectives said they did not know the circumstances and that was the reason they wanted to talk to him about it.(42) Krueger then signed a statement implicating himself in the murder.(43)

    The Illinois Supreme Court held that because Krueger's ambiguous request did not reach the threshold of clarity, interrogating officers did not violate his Miranda rights.(44) According to that court, "a more positive indication or manifestation of a desire for an attorney was required than was made here."(45) Although the court in Krueger acknowledged that the phrase "in any manner" asserted in the Court's holding in Miranda permits assertions of the right to counsel that are not unmistakably clear, the court did not read Miranda as requiring every reference to an attorney, no matter how ambiguous, to constitute an invocation of the right to counsel.(46)

    The court in Krueger noted that the defendant was not subjected to any coercion in excess of what is inherent in all custodial interrogations.(47) Furthermore, the court believed that the detectives apparently acted in good faith in not judging the defendant's statements to be a request for counsel.(48) While the court felt that is should not unduly emphasize the detectives' subjective beliefs, it recognized the importance of allowing law enforcement officials some discretion in this determination.(49) The court then found the officers' beliefs to be reasonable under the circumstances.(50) Because the defendant's manifestation of his right to an attorney failed to reach some requisite level of clarity, the court concluded that the police had not violated the defendant's Miranda rights.(51)

    B. THE PER SE RULE

    Under the per se rule, any reference to counsel in a custodial interrogation, without regard to its ambiguity or equivocality, precludes further questioning.(52) In Maglio v. Jago,(53) the leading case adopting this approach,(54) the Sixth Circuit, relying on both Miranda and Michigan v. Mosley,(55) held that the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT