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'Maybe I should talk to a lawyer': ambiguous invocations of Miranda.



Virtually every television viewer, let alone every lawyer, knows that Miranda v. Arizona Miranda v. Arizona, U.S. Supreme Court case (1966) in the area of due process of law (see Fourteenth Amendment). The decision reversed an Arizona court's conviction of Ernesto Miranda on kidnapping and rape charges.  requires police to administer constitutional rights warnings to people under arrest before questioning them. (384 U.S. 436 (1966).) But what happens after the warnings are given? In Miranda the Court addressed three possibilities.

First, the suspect might waive the rights. "Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence." (Id. at 478.)

Second, the suspect might indicate a wish to remain silent and not request counsel. "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation interrogation

In criminal law, process of formally and systematically questioning a suspect in order to elicit incriminating responses. The process is largely outside the governance of law, though in the U.S.
 must cease." (Id. at 473-74 (footnote omitted).)

Third, the suspect might invoke the right to counsel. "If the individual states that he wants an attorney, the interro-gation must cease until an attorney is present." (Id. at 474.) A request for counsel is a showstopper showstopper - A hardware or (especially) software bug that makes an implementation effectively unusable; one that absolutely has to be fixed before development can go on. Opposite in connotation from its original theatrical use, which refers to something stunningly *good*.  because, under Edwards v. Arizona and its progeny, the police may not resume questioning after a suspect has asked for counsel even after a passage of time and a repeat of the warnings. (451 U.S. 477 (1981).)

But the Miranda Court did not anticipate every scenario. The suspect may say something equivocal like "Maybe I ought to talk to a lawyer" or "I'm beginning to think I shouldn't talk to you much longer." The suspect may even ask the police for advice. In Davis v. United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. , the Court took up "ambiguous or equivocal references to counsel during custodial interrogation Questioning initiated by law enforcement officers after a person is taken into custody or otherwise deprived of his or her freedom in any significant way, thus requiring that the person be advised of his or her applicable constitutional rights. ." (62 U.S.L.W. 4587, 4588 (U.S. June 24, 1994).)

Robert Davis Robert Davis can refer to:
  • DJ Screw, influential rap DJ and inventor of "Screwed" music.
  • Robert Davis (New Orleans), who was beaten by three police officers in New Orleans shortly after Hurricane Katrina
  • Robert Davis (inventor), inventor of the oxygen rebreather
 and Keith Shackleford served in the Navy at Charleston, South Carolina South Carolina, state of the SE United States. It is bordered by North Carolina (N), the Atlantic Ocean (SE), and Georgia (SW). Facts and Figures


Area, 31,055 sq mi (80,432 sq km). Pop. (2000) 4,012,012, a 15.
, where Shackleford lost a $30 wager to Davis over a game of pool. Shackleford refused to pay, and later he was found beaten to death with a pool cue. Witnesses told agents of the Naval Investigative Service that Davis had made statements implicating im·pli·cate  
tr.v. im·pli·cat·ed, im·pli·cat·ing, im·pli·cates
1. To involve or connect intimately or incriminatingly: evidence that implicates others in the plot.

2.
 himself in the murder.

When agents interviewed Davis, they administered Miranda warnings. Davis agreed to speak and executed a written waiver. Roughly 90 minutes into the interview, Davis said, "Maybe I should talk to a lawyer." (Id. at 4588.)

The agents responded by indicating that Davis had the right to a lawyer, that they would cease talking to Noun 1. talking to - a lengthy rebuke; "a good lecture was my father's idea of discipline"; "the teacher gave him a talking to"
lecture, speech

rebuke, reprehension, reprimand, reproof, reproval - an act or expression of criticism and censure; "he had to
 him if he wanted to consult with counsel, and that they weren't going to pursue the matter until they could clarify whether he was asking for a lawyer or just making a comment about a lawyer. Davis then said, "No, I'm not asking for a lawyer" and "No, I don't want a lawyer." (Id.) The agents then took a break. When the questioning resumed, they again advised Davis of his rights. The interrogation went on for another hour at which time Davis said, "I think I want a lawyer before I say anything else." (Id.) The questioning then ceased.

At Davis's trial, he moved to suppress statements he made during the time between his first reference to a lawyer and his ultimate request for one. The trial court denied his request, and Davis appealed. The U.S. Court of Military Appeals steered a middle course between a rule requiring that interrogation cease at any mention of counsel and one permitting the agents to continue questioning after an equivocal reference to a lawyer. The court said, "Not every vague reference to counsel requires termination of the interrogation. An ambiguous reference to counsel must, however, be clarified before interrogation may continue." United States v. Davis, 36 M.J. 337, 341 (C.M.A. 1993).) Because the interrogating agents had complied with this standard in exemplary fashion, the appellate court A court having jurisdiction to review decisions of a trial-level or other lower court.

An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed.
 affirmed.

Duty to Clarify?

The Supreme Court also affirmed, agreeing that Davis had not triggered the Edwards rule by his first mention of counsel. But the Court rejected the reasoning of the Court of Military Appeals. Rather than casting the burden of clarification on the questioning officers, the majority imposed that burden on the suspect, who "must unambiguously request counsel." (62 U.S.L.W. 4587, 4589.)

Writing for five justices, Justice Sandra Day O'Connor Sandra Day O'Connor (born March 26 1930) is an American jurist who served as the first female Associate Justice of the Supreme Court of the United States from 1981 to 2006. She was considered a strict constructionist.  reasoned that imposing a duty to clarify on the police would neglect "the other side of the Miranda equation: the need for effective law enforcement." (Id.) The lower court's rule would force police 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." (Id.) As for the suspect's rights, "the primary protection afforded suspects to custodial interrogation is the Miranda warnings themselves." (Id.)

Clarification, the Court noted, "will often be good police practice." (Id. at 4590.) Nevertheless, "unless the suspect actually requests an attorney, questioning may continue." (Id.) Applying this rule to the facts, the agents "were not required to stop questioning petitioner, though it was entirely proper for them to clarify whether petitioner in fact wanted a lawyer." (Id.)

Justice David Souter wrote a concurring opinion Noun 1. concurring opinion - an opinion that agrees with the court's disposition of the case but is written to express a particular judge's reasoning
judgement, legal opinion, opinion, judgment - the legal document stating the reasons for a judicial decision;
 joined by Justices Harry Blackmun Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an Associate Justice of the Supreme Court of the United States from 1970 to 1994. He is best known as the author of the majority opinion in the 1973 Roe v. , John Paul Stevens John Paul Stevens (born April 20, 1920) is currently the most senior Associate Justice of the Supreme Court of the United States. He joined the Court in 1975 and is the oldest and longest serving incumbent member of the Court. , and Ruth Bader Ginsburg Ruth Joan Bader Ginsburg (born March 15 1933, Brooklyn, New York) is an Associate Justice on the U.S. Supreme Court. Having spent 13 years as a federal judge, but not being a career jurist, she is unique as a Supreme Court justice, having spent the majority of her career as an . Justice Souter agreed that the agents had the right to ask clarifying questions, but he said they had not just the right but the constitutional duty to clarify the suspect's wishes.

In Souter's view, the majority's approach threatens the Miranda rights Miranda rights (Miranda rule, Miranda warning) n. the requirement set by the U. S. Supreme Court in Miranda v. Alabama (1966) that prior to the time of arrest and any interrogation of a person suspected of a crime, he/she must be told that he/she has: "the right to  of suspects either too timid or too inarticulate inarticulate /in·ar·tic·u·late/ (in?ahr-tik´u-lat)
1. not having joints; disjointed.

2. uttered so as to be unintelligible; incapable of articulate speech.
 to demand a lawyer. "When a suspect understands his (expressed) wishes to have been ignored (and by hypothesis, he has said something that an objective listener could 'reasonably,' although not necessarily, take to be a request), in contravention A term of French law meaning an act violative of a law, a treaty, or an agreement made between parties; a breach of law punishable by a fine of fifteen francs or less and by an imprisonment of three days or less. In the U.S.  of the 'rights' just read to him by his interrogator, he may well see further objection as futile and confession (true or not) as the only way to end his interrogation." (Id. at 4593 (Souter, J., concurring) (footnote omitted).)

The concurrence CONCURRENCE, French law. The equality of rights, or privilege which several persons-have over the same thing; as, for example, the right which two judgment creditors, Whose judgments were rendered at the same time, have to be paid out of the proceeds of real estate bound by them. Dict. de Jur. h.t.  endorsed the clarification duty announced by the appellate court. It "would relieve the officer of any responsibility for guessing 'whether the suspect in fact wants a lawyer even though he hasn't said so.'" (Id. (quoting slip op. at 9).) Although this approach might cause a suspect not to confess, that price "is one that Miranda itself determined should be borne." (Id.)

Questionable Approach

Indeed, the majority's approach is questionable even when considered purely from the standpoint of law enforcement. If police continue questioning in the face of an unclear reference to counsel, they take the risk that a court will determine that the suspect's statement was clear enough to trigger the Edwards rule.

In at least some of these cases, however, clarifying questions may show that the suspect was in fact willing to continue talking without consulting counsel. The result will be the needless suppression of any evidence police obtain after failing to clarify the suspect's wishes. Both the Justice Department and law enforcement groups like the International Association of Chiefs of Police
For other uses of the acronym IACP, please see the IACP disambiguation page.


The International Association of Chiefs of Police (IACP) was founded in Chicago in 1893 as the National Chiefs of Police Union.
 have endorsed the clarification approach. (See id. at 4591 n.2 (Souter, J. concurring).)

Ambiguity is common in statements made by suspects during interrogation. In one case, the suspect responded to the admonition Any formal verbal statement made during a trial by a judge to advise and caution the jury on their duty as jurors, on the admissibility or nonadmissibility of evidence, or on the purpose for which any evidence admitted may be considered by them.  that he had the right to a lawyer by saying, "Uh, yeah, I'd like to do that." (Smith v. Illinois, 469 U.S. 91 (1984) (per curiam [Latin, By the court.] A phrase used to distinguish an opinion of the whole court from an opinion written by any one judge.

Sometimes per curiam signifies an opinion written by the chief justice or presiding judge; it can also refer to a brief oral announcement
).) In another, the words were, "I do want an attorney before it goes very much further." (Oregon v. Bradshaw Oregon v. Bradshaw, 462 U.S. 1039 (1983), applied the rule first announced in Edwards v. Arizona, and clarified the manner in which a suspect may waive his right under Miranda v. , 462 U.S. 1039 (1983).)

In Davis itself, the suspect's second reference to counsel was a little clearer than the first. Davis first said, "Maybe I should talk to a lawyer"; his second statement was, "I think I want a lawyer before I say anything else." (62 U.S.L.W. 4587, 4588 (emphasis added).)

Under Davis, a court passing on a suppression motion must determine whether the suspect "unambiguously" requested counsel. Reasonable people will disagree about when statements like those made in Bradshaw, Smith, or Davis are ambiguous or not. For example, the interrogators in Davis terminated the interview after Davis said, "I think I want a lawyer," but not after he said, "Maybe I should talk to a lawyer." It seems likely that well-trained police officers will follow the clarification approach even though it is not constitutionally required.

That is exactly what the Naval Investigative Service agents did in Davis. Given the closely divided Court, one wonders what the result would have been if the police actually did what the majority says they have the right to do--ignore or disparage dis·par·age  
tr.v. dis·par·aged, dis·par·ag·ing, dis·par·ag·es
1. To speak of in a slighting or disrespectful way; belittle. See Synonyms at decry.

2. To reduce in esteem or rank.
 a suspect's ambiguous reference to counsel. If the agents had responded to "Maybe I should talk to a lawyer" by saying "Maybe you should tell us what really happened, pal," the consequences of the majority's approach would have been more obvious. In the majority's view, the suspect would still be free to invoke the right to counsel with definite language. But would that be so from the suspect's point of view?

Precisely because the agents carefully clarified Davis's first reference to counsel, the majority's rejection of the duty to clarify is, technically speaking, mere obiter dictum [Latin, By the way.] Words of an opinion entirely unnecessary for the decision of the case. A remark made or opinion expressed by a judge in a decision upon a cause, "by the way", that is, incidentally or collaterally, and not directly upon the question before the court or . No doubt the members of the majority would adhere to thier view in a fairly sanitary case of actual disregard for an ambiguous reference to counsel. Nor will the appointment of Stephen Breyer (whatever his views may be) change the judicial arithmetic in such a case because retiring Justice Blackmun joined Souter's concurrence.

But a case of disregard for an ambiguous invocation may not have such sanitary facts. Suppose, instead of seeking clarification, the police attempt to dissuade the suspect from clearly asking for a lawyer. After a suspect says what Davis said--"Maybe I should talk to a lawyer" --suppose the police reply, "Of course you have the right to a lawyer just as soon as you say you really want one. But you know how that would look to us. If you were on my side of the desk, what would you think about a guy who thinks he needs a lawyer?"

Or suppose the police respond by saying (falsely), "A lawyer can't help you because we found your fingerprints all over the job." Affirmative efforts to dissuade the suspect from invoking the right to counsel might be a different matter from the purely passive failure to clarify.

In short, Davis addressed the police response to a suspect's ambiguity on a hypothetical basis. And the majority never considered the variety of potential police responses to an unclear reference to a lawyer. Which goes to show that even the Supreme Court can have trouble speaking unambiguously.
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Author:Dripps, Donald A.
Publication:Trial
Date:Sep 1, 1994
Words:1746
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