1. Invoking the Miranda Right to Counsel: The Defendant's Burden
5. Endnotes

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.


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 must cease.

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.

Bright Line Rule

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

States Can Adopt Own Interrogation Policy

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 clarifying questions.

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 interrogation.

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.


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. Wisconsin.15

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:

Dear Sir:

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 tempers subside.

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 restrictions.

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.

8 Id.

9 Id.

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 parties.

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. 471 (1994).

27 United States v. Goodson, 22 M.J. 22 (1986).


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