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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 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 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 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, the Court took up "ambiguous or equivocal references to counsel during custodial interrogation." (62 U.S.L.W. 4587, 4588 (U.S. June 24, 1994).)

Robert Davis and Keith Shackleford served in the Navy at Charleston, South Carolina, 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 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 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 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 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 joined by Justices Harry Blackmun, John Paul Stevens, and Ruth Bader Ginsburg. 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 of suspects either too timid or too inarticulate 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 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 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 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 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).) In another, the words were, "I do want an attorney before it goes very much further." (Oregon v. Bradshaw, 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 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. 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.
Date:Sep 1, 1994
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