Invoking The Miranda Right To Counsel: The Defendant's Burden
by Kimberly A. Crawford, J.D., March 1995.
[Special Agent Crawford is a legal instructor at the FBI Academy.]
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
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."9 The Court's decision in Davis clearly
puts the burden on custodial suspects to make unequivocal invocations of
the right to counsel.10 As a practical matter, however, law enforcement
agencies would be wise to continue a policy of encouraging interrogators
to ask clarifying questions when a suspect in custody makes an ambiguous
request for counsel.
Although the Court in Davis purported to adopt a bright line rule that
would save interrogators from making "difficult judgment calls" when
requests for counsel are equivocal, interrogators must still use their
judgment in determining whether requests are equivocal or not. The Court
in Davis recognized its bright line rule did not obviate the need for
interrogators to use discretion and offered the following advice:
Of course, when a suspect makes an ambiguous or equivocal statement, it
will often be good police practice for the interviewing officers to
clarify whether or not he actually wants an attorney....Clarifying
questions help protect the rights of the suspect by ensuring that he gets
an attorney if he wants one, and will minimize the chance of a confession
being suppressed due to subsequent judicial second-guessing as to the
meaning of the suspect's statement regarding counsel. But we decline to
adopt a rule requiring officers to ask clarifying questions.11 State law
enforcement agencies have additional incentive for adopting an
interrogation policy that encourages clarifying questions. Although the
Supreme Court has concluded that such questions are unnecessary under its
interpretation of the U.S.
Constitution, State courts are free to construe State constitutions in a
manner that holds their law enforcement officers to higher standards.12
It is reasonable to expect that some State courts, when interpreting
their own constitutions, will reject the Supreme Court's bright line rule
in Davis and will adopt the position that an ambiguous invocation of
counsel necessitates the asking of clarifying questions.
The Supreme Court of Hawaii adopted this position in State v. Hoey.13 The
defendant in Hoey was arrested and charged with burglary and kidnaping.
When advised of his right to counsel and to have counsel appointed, the
defendant stated, "I don't have the money to buy one." In response, the
officer conducting the interrogation asked the defendant if he thought he
needed an attorney at that time. When the defendant conceded that he did
not, the interrogation continued. The defendant challenged his subsequent
conviction on several grounds, one of them being that continued
interrogation was unlawful in light of his ambiguous request for counsel.
Agreeing with the defendant, the Supreme Court of Hawaii reversed the
conviction. In doing so, the court acknowledged that the defendant's
statement to the interrogating officer was an ambiguous request for
counsel that, according to the Supreme Court in Davis, requires no
However, the Supreme Court of Hawaii made a conscious decision to afford
its citizens broader protection under the State constitution.
Accordingly, the court held that an ambiguous or equivocal request for
counsel compels law enforcement officers in that State to either cease
all interrogation or resolve the ambiguity through clarifying
questions.14 Believing that the defendant's statement regarding his
inability to afford an attorney was indicative of a misunderstanding of
the right to appointed counsel that was not clarified by subsequent
questioning, the court in Hoey concluded that the interrogating officer
violated the defendant's State constitutional rights by continuing the
Assuming that the court's decision in Hoey is not an aberration, law
enforcement agencies can avoid similar decisions in their own State
courts by adopting interrogation policies that require clarifying
questions. By adopting such policies, agencies can decrease the
likelihood that courts will second guess interrogators' judgments that
invocations were ambiguous and forestall suppression of confessions based
on State courts' adoption of standards higher than those set by the
Supreme Court in Davis. Moreover, such policies have the added benefit of
ensuring the protection of individuals' constitutional rights.
INVOCATIONS MUST BE TIMELY
In addition to demanding that invocations be unequivocal, courts also
have begun to hold that invocations of the Miranda right to counsel must
be made in a timely manner. The genesis of the movement to compel timely
invocations can be traced to the Supreme Court's decision in McNeil v.
In McNeil, the Court was confronted with the question of whether an
invocation of the sixth amendment right to counsel encompassed an
invocation of the Miranda right to counsel as well. Holding that it did
not, a majority of the Court concluded that an invocation of the sixth
amendment right to counsel, which is crime-specific, did not preclude
government attempts to conduct subsequent custodial interrogations on
unrelated topics.16 Responding to the dissent's criticism that the
holding could be circumvented by an explicit invocation of Miranda rights
at a preliminary hearing, the Court made the following statement:
We have in fact never held that a person can invoke his Miranda rights
anticipatorily, in a context other than 'custodial interrogation'--which
a preliminary hearing will not always, or even usually involve. If the
Miranda right to counsel can be invoked at a preliminary hearing, it
could be argued, there is no logical reason why it could not be invoked
by a letter prior to arrest, or indeed even prior to identification as a
suspect. Most rights must be asserted when the government seeks to take
the action they protect against. The fact that we have allowed the
Miranda right to counsel, once asserted, to be effective with respect to
future custodial interrogation does not necessarily mean that we will
allow it to be asserted initially outside the context of custodial
interrogation, with similar future effect. 17
Although not binding precedent, this statement prompted several lower
courts to conclude that anticipatory invocations of the Miranda right to
counsel are ineffective. For example, in Alston v. Redman,18 the Court of
Appeals for the Third Circuit relied on the language in McNeil to hold
that a letter signed by a custodial defendant purporting to invoke the
Miranda right to counsel had no impact on the government's ability to
attempt subsequent interrogations.
In Alston, the defendant was arrested on charges of robbery and
conspiracy. Following a voluntary waiver of his Miranda rights, the
defendant was interrogated and confessed to several robberies. Three
days later, while still in custody, the defendant met with a
representative of the Public Defender's Office and signed a form letter
addressed to the warden of the facility where he was incarcerated. The
letter read as follows:
I am presently a detainee in this institution and I will not speak to any
police officer, law enforcement officers, their agents, or
representatives from the Department of Justice, or any jurisdiction,
without a Public Defender being present at such a meeting.
I further do not wish to be removed from my cell and brought to a meeting
with the above-mentioned officers for the purpose of discussing a waiver
of my constitutional rights in this regard. 19
Despite the letter, the defendant subsequently was interrogated by law
enforcement officers following an advice and waiver of Miranda rights.
The interrogation resulted in a second, more comprehensive confession,
which the defendant later tried unsuccessfully to suppress.
In his motion to suppress, the defendant argued that signing the form
letter was sufficient to invoke his Miranda right to counsel and to
"thwart any further police-initiated questioning." 20 However, after
reviewing the Supreme Court's decision in McNeil and revisiting the
underlying rationale in Miranda, the court rejected this argument.
Recognizing that the design of the rule in Miranda was to protect
individuals from the psychologically compelling effects of custodial
interrogation, the court determined that the rule served no purpose
unless the individual attempting to invoke it was in custody and being
subjected to interrogation at the time of the invocation. Because the
"interaction of custody and official interrogation"21 was absent, the
court concluded that the defendant's "Miranda right to counsel had simply
not attached when [he] signed the invocation form in his cell,"22 and
therefore, the attempted invocation was ineffective.
A similar result was reached by the Court of Appeals for the Ninth
Circuit in United States v. Wright.23 Again relying on the Supreme
Court's decision in McNeil, the court in Wright concluded that defense
counsel's request at a plea hearing to be present during any future
interrogation of her client was insufficient to invoke the defendant's
Miranda right to counsel. Rather, the court concluded that defense
counsel's statement served only to invoke the sixth amendment right to
counsel, which is crime-specific, and precluded only subsequent
interrogation regarding the crime charged.24 Government-initiated
interrogation pertaining to uncharged offenses, which was at issue in
this case, was not affected by counsel's attempted invocation.
Although not unanimous,25 an ever-increasing number of courts are
following the Supreme Court's recommendation in McNeil and holding that
anticipatory invocations of Miranda rights are ineffective.26
Law enforcement agencies that incorporate the prohibition against
anticipatory invocations into their interrogation policies realize a
distinct advantage. Such policies permit investigators to attempt
uncounseled government-initiated interrogations in situations where
custodial suspects have made untimely requests for counsel. Thus,
suspects' enraged demands for counsel that precede or follow closely on
the heels of custody will not preclude later interrogation attempts when
When formulating such interrogation policies, however, law enforcement
agencies should consider one caveat: Invocations of the right to counsel
are not likely to be deemed anticipatory if preceded by advice of rights.
Although not widely litigated, at least one court has held that once
custodial suspects are advised of their Miranda rights, subsequent
requests for counsel are timely whether they coincide with attempted
interrogations or not.27 Therefore, agencies that want to take advantage
of the courts' repudiation of anticipatory invocations should ensure that
suspects are not advised of their Miranda rights precipitously.
After years of allowing custodial suspects to avoid police interrogation
by invoking their Miranda rights, courts have begun to impose some
reasonable restraints on when and how those rights must be invoked. To
take full advantage of this new trend, law enforcement agencies must
craft their interrogation policies carefully to incorporate these
When formulating an interrogation policy, consideration should be given
to the following provisions:
1) Miranda warnings should not be given until the suspect is in custody
and interrogation imminent.
2) When a suspect makes an ambiguous request for counsel following an
advice of rights, interrogators should attempt to resolve the ambiguity
by asking clarifying questions.
3) Attempts by suspects to invoke the Miranda right to counsel prior to
an advice of rights should not preclude officers from proceeding with an
advice of rights and attempting to obtain a waiver.
4) Attempts by defense counsel to invoke anticipatorily the clients'
Miranda right to counsel are ineffective.
A well-crafted interrogation policy, if followed, will serve the dual
purpose of securing the admissibility of suspects' statements and
protecting individuals' constitutional rights. As with the formulation of
any policy, a competent legal advisor should be consulted to ensure
compliance with relevant legal principles.
1 384 U.S. 436 (1966).
2 Mississippi v. Minnick, 111 S.Ct. 486 (1990).
3 Courts also have begun to impose similar limitations on a suspect's
ability to invoke the right to silence. Coleman v. Singletary, 30 F.3d
1420 (11th Cir. 1994).
4 114 S.Ct. 2350 (1994).
5 Although Davis was not in custody at the time of the interrogation,
military law required that he be advised that he was a suspect and
informed of his Miranda rights.
6 The conviction was upheld by the U.S. Court of Military Appeals. 36
M.J. 337 (1993).
7 114 S.Ct. at 2356.
10 The Supreme Court recently reaffirmed its decision in Davis when it
vacated and remanded the Alabama Court of Criminal Appeals decision in
Brown v. State, 630 So.2d 481 (Ala.Cr.App. 1993). The custodial suspect's
statement at issue was, "Is it going to piss y'all off if I ask for my...
to talk to a friend that is an attorney." 115 S.Ct. 43 (1994). 11 114
S.Ct. at 2356.
12 Cooper v. California, 386 U.S. 58 (1967).
13 881 P.2d 504 (Hawaii 1994).
14 Id. at 523.
15 111 S.Ct. 2204 (1991)
16 Id. at 2209.
17 Id. at 2211 n.3 (citations omitted).
18 34 F.3d 1237 (3d Cir. 1994).
19 34 F.3d 1240.
20 Id. at 1241.
21 Perkins v. Illinois, 110 S.Ct. 2394, 2397 (1990).
22 34 F.3d at 1245.
23 962 F.2d 953 (9th Cir. 1992).
24 The court in Wright never addressed the issue of whether Miranda
rights can be invoked by defense counsel on behalf of the client.
However, in Moran v. Burbine, 106 S.Ct. 1135 (1986), the Supreme Court
held that Miranda rights are personal and cannot be invoked by third
25 See, e.g., United States v. Kelsey, 951 F.2d 1196 (10th Cir. 1991) and
State v. Torres, 412 S.E.2d 20 (N.C. 1992).
26 See also, United States v. Little, (unpublished) 9 F.3d 110 (table)
1993 WL 453396 (6th Cir. 1993), and United States v. Shroeder, 39 M.J.
27 United States v. Goodson, 22 M.J. 22 (1986).
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