Tuesday, March 30, 2010

Cops Have No Duty to Clarify Suspect's "Vague" Request for an Attorney

Officer:  "I want you to write out a statement regarding what you know about the robberies."

Suspect:  "Maybe I should get an attorney for this."

Officer: ...(nothing spoken, but likely thinking to himself - "Hmm, if I don't say anything, maybe he'll forget about the attorney and give us the statement" - according to me).

Well, the Government Agent was right.  The suspect entered a written confession and his statements were later used against him in his trial (and conviction) for multiple counts of bank robbery in United States District Court for the Northern District of Texas.  On 26 March, the 5th Circuit upheld the admissibility of his written confession and affirmed the conviction.  See U.S. v. Montes.

In a concise statement of law, the 5th Circuit ensured law enforcement officers that they have no duty other than to give the minimum warnings required by Miranda:

It is black letter law that when a suspect who is subject to custodial interrogation exercises his right to counsel, law enforcement officers must cease questioning until counsel is made available to him, unless the accused himself initiates further communication, exchanges or conversations with the officers. Edwards v. Arizona, 451 U.S. 477, 485-86 (1981). Generally, an invocation by a suspect of his right to counsel that is ignored by law enforcement officers requires that the suspect’s statements made after the request be excluded by the trial court. Id. If a suspect, however, makes an ambiguous or equivocal reference to an attorney there is no requirement that law enforcement cease questioning. See Davis v. United States, 512 U.S. 452, 459 (1994) (holding that an ambiguous reference to counsel does not invoke the right to an attorney); see also United States v. Scurlock, 52 F.3d 531, 535-37 (5th Cir. 1995). Further, the investigator conducting the questioning has no obligation to attempt to clarify the ambiguous comment of the accused. Davis, 512 U.S. at 461. Thus, “law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.” Id.
I guess if you really think about it - why would we ever want a suspect to really know what his rights are or how he can invoke them? (Insert sarcasm here).  I understand that law enforcement officers are out to catch the bad guys, so naturally I would not expect them to want to assist a suspect in this area, but couldn't it be a sign that the prior Miranda warnings were not given effectively if the suspect indicates a lack of understanding?  

The officers in this case testified unequivocally that the request for an attorney was “vague” and “wasn’t a demand;” [the suspect] never “affirmatively sa[id] he wanted an attorney.” Despite the suspect's contrary testimony, the district court found that since he did not clearly invoke his right to counsel, as required, his post-arrest statements made after his ambiguous request for an attorney were admissible.

Seriously, how hard would it have been for the officers to clarify whether the suspect was asking for an attorney?  If you'll indulge me, let's see:

Officer:  When you say that 'Maybe you need an attorney,' are you asking for an attorney?

Suspect:  No (probably).

Wow, that didn't take long.  After that exchange, there would be no issue at trial (or on appeal).  In my mind the government should not only seek justice, but it should seek to maintain the appearance of justice.  Allowing officers to simply disregard a comment by a suspect about his right to an attorney because (in the officer's mind) the statement is "vague" misses the mark on the appearance of justice.