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Is the right to counsel invoked under the 6th Amendment when a suspect speaks to the police when their lawyer cannot be reached?

We are familiar with Miranda Rights-the preventive criminal procedure rule that law enforcement is required to dictate to suspects in custody before interrogation. The Miranda warning protects the individual in custody from self-incrimination, protecting their 5th amendment rights. Typically, when law enforcement fails to administer Miranda Rights, anything said by the suspect in custody cannot be used at a criminal trial. However, what happens when a suspect has been read their Miranda Rights, attempts to contact counsel, but when they are not successful at reaching their attorney- continues to answer police interrogations without them?

In the recent case of Berghuis v. Moore, a suspect asked a police officer to call an attorney listed on a business card. The officer called the number but reached an answering machine, not the attorney. However, after this attempt, the suspect did not refuse to speak to police without their counsel present. In fact, the suspect signed a Miranda waiver and then proceeded to confess to a brutal murder.

However, before trial, the defendant sought to have his statement to law enforcement suppressed as involuntary, even though he agreed to speak without counsel after the officer attempted to contact his attorney, and even though he signed a Miranda waiver. The trial court ruled that the defendant had validly waived his rights, and denied the motion to suppress. A jury then convicted the defendant to first-degree premeditated murder. The defendant appealed, arguing that the trial court erred in denying his motion to suppress. The Michigan Court of Appeals affirmed the trial court decision, ruling there was no error. The defendant sought review by the Supreme Court, contending his fifth amendment rights were violated.

Historically, the courts have ruled “an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him. ” (Edwards v. Arizona, 1981). Yet, courts are split over issues concerning statements such as, “I think I should call my lawyer” or as in Berghuis, when an attorney’s business card is presented. If a suspect says an ambiguous statement such as, “I think I need a lawyer” three circuits (the fourth, Seventh, and Ninth) all treat it as a request that does not prohibit police questioning. However, the Second, Sixth, and Eleventh circuits treat such statements as a request that would prohibit further questioning.

The Miranda Right to counsel is meant to protect the right to remain silent. Yet, even though a suspect may articulate they “may need an attorney” without the presence of counsel, they must clearly demonstrate an unwillingness to speak without counsel present. In this case, the defendant did not show an unwillingness to speak to police. When police told defendant they were unable to reach his attorney he said that was “Okay” and he continued to speak anyway, voluntarily telling his story. While the defendant argues his request for counsel demonstrates his unwillingness to speak, the Michigan Trial and District courts disagreed because the defendant continued to speak when his counsel could not be reached.

Apparently, the Supreme Court agrees as well. On May 13, 2013, the Supreme Court denied the defendant’s Petition for Certiorari.

If you have any questions about Miranda Rights and police interrogations, do not hesitate to contact Attorney Michael Delsignore. Attorney Michael Delsignore is a dedicated and experienced criminal defense attorney who frequently handles cases concerning issues surrounding Miranda Rights. Additionally, for further information on Miranda Rights and police interrogation, check out the following blogs:

New Mexico v. Herring may clarify law on waiver of Miranda rights for Massachusetts criminal attorneys

Confessions in Massachusetts criminal cases and violation of Miranda rights

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