The routine seems so simple, as does the proper way of dealing with it, provided you don’t want to find out later you slit your own throat by being too smart by half. Ask a half-interested person what to do when confronted by the police, and chances are pretty good that their answer will be, “say nothing.” Or, the less sanitized version of the advice, shut the fuck up.
That, of course, is right, but wrong. Refuse to give pedigree and you’ll sit in a cell forever. Failure to respond to a question can sometimes be used against you, and end up being the very proof that nails you to the wall. Miranda warning are only required for custodial interrogations, but what’s custody is a moving target these days. The rule ought to be clear, easy enough for a non-lawyer to follow and apply without needing a lawyer to explain how not to incriminate oneself. No such luck.
But at least there’s the second prong of invocation, which is even better than the simplistic advice so many offer. Ask for a lawyer. Not whether you ought to have a lawyer, or that you think a lawyer might help, but just that you want your lawyer. Even if you don’t have a lawyer, it doesn’t matter. Just utter the words. Not only does that require the police to cease interrogating you, but it has the secondary benefit of being unwaivable except in the presence of a lawyer.
If you invoke your right to remain silent, assuming you do it properly and at the right time, and in light of inculpatory questions, you can still blow it by waiving that right by speaking. That’s right, you wise asses who feel compelled to mutter some snarky comment after invoking, you blew it. But if the right you invoke is counsel, you can’t undo it without a lawyer.
Except when you can. In Commonwealth v. Bland, the Supreme Court of Pennsylvania held that a written invocation of the right to counsel was really cool, and nonetheless worthless.
In Bland, the defendant was arrested in Florida on a warrant for homicide that occurred in Philadelphia. After Bland was in custody, Bland’s lawyers had Bland sign a form, then given to the police in Philadelphia, that said the following:
PLEASE BE ADVISED THAT I DO NOT WISH TO SPEAK WITHOUT AN ATTORNEY PRESENT.
I WISH TO BE REPRESENTED BY A LAWYER. UNTIL SUCH TIME AS I HAVE AN OPPORTUNITY TO FULLY DISCUSS THE DETAILS OF MY CASE WITH MY LAWYER, I STATE THE FOLLOWING TO YOU: I DO NOT WISH TO BE QUESTIONED OR HAVE ANY DISCUSSION WITH THE POLICE. I DO NOT WISH TO SPEAK TO YOU WITHOUT MY ATTORNEY PRESENT.
I WILL NOT WAIVE OR GIVE UP ANY OF MY RIGHTS UNDER MIRANDA V. ARIZONA, NOR WILL I GIVE UP ANY OF MY PENNSYLVANIA OR FEDERAL CONSTITUTIONAL RIGHTS EITHER ORALLY OR IN WRITING WITHOUT THE PRESENCE OF MY LAWYER.
Bland was then brought from Florida to Pennsylvania to face charges. Six days after he had signed the form expressing his wish to assert his right to counsel, Bland was questioned about the crime without a lawyer present. He was first given his Miranda warnings and waived his rights, despite what the earlier form had said about his demand to see a lawyer. The questioning led to a confession, raising the issue of whether the confession was admissible.
In writing. Clear as can be. In hand delivered. What more could he have done? Well, he could have refused to answer questions, or invoked his right to counsel again when he was interrogated in Pennsylvania, but that’s pretty much the point of invoking counsel versus just the right to remain silent. Bear in mind, defendants are presumed innocent, not intelligent.
But then, it’s not enough to merely assert the right, but the assertion must be “valid”:
To have the full effect of asserting the right to counsel, the court held, “an invocation of the Miranda-based right to counsel must be made upon or after actual or imminent commencement of in-custody interrogation.” You can’t invoke the right long ahead of time.
To the degree that a further cost-benefit assessment on our part is appropriate for purposes of federal constitutional law, we agree with the Commonwealth that the burden of invoking the right to counsel in close proximity to custodial interrogation is outweighed by legitimate law-enforcement objectives.
And is there any more “legitimate law-enforcement objective” than to undermine constitutional rights to obtain a confession? Orin Kerr explains that there is caselaw support for the sophistry behind this decision:
On one hand, this new decision isn’t a big surprise. The majority’s approach is consistent with what other courts have been doing for a long time. See, e.g.,Alston v. Redman, 34 F.3d 1237 (3d Cir. 1994). Still, I think it’s an interesting issue.
“Interesting” isn’t the word that comes to my mind. The court’s rationale, a survey of excuses to make a bright-line test dimmer until it fades to black, is the height of absurdity. The purpose of constitutional rights isn’t to provide a starting point to develop a laundry list of excuses for law enforcement to circumvent them.
While the court pays lip service to the notion that Miranda offered no exception to accommodate cops getting a mulligan on interrogation if they only wait a few days and try again, magically making all invocation of rights disappear and getting a fresh try at the defendant (although the Supreme Court held that even a valid invocation expires after 14 days).
It can’t be this hard. It can’t be this complicated, this riddled with exceptions, so that an ordinary person is incapable of invoking his constitutional rights. That caselaw foreshadows a never-ending stream of exceptions is no excuse. If an ordinary person cannot, without the aid of counsel, figure out how to invoke his rights, then he has no rights. That cannot be.
Why is it the only time you flirt with “advice” it’s so depressing?
Cheer up Dire Straits and Metallica are definitely not going to produce an off broadway play.
It’s a character flaw. I can’t help it.
This does not auger well for members of the deaf and/or mute community.
Nothing abut the system augers well for members of the deaf and/or mute community.
Especially the deaf, since they tend to get beaten/shot for failure to comply with verbal commands.
Well, the good news is that they have fewer interrogation issues. The bad news is that it’s because they’re already dead.
As the sages Al Burton, Gloria Loring, and Alan Thicke once said: “You take the good, you take the bad, you take them both and there you have the facts of life.”
Haven’t commented in a while, SJ. But, what the hell…
Perhaps the dissent addressed this (it’s not part of the opinion linked to, for some reason), but this is formalism at its highest. Because this teenager hadn’t been formally charged, he was relying solely on the Miranda-Edwards fifth right to counsel, which has some vague temporal requirement. Had the warrant been issued pursuant to a complaint, Bill, or indictment, the case would have had to be decided differently, or on different grounds (assuming the 17 year old wasn’t screaming of his desire to initiate a conversation with the cops after extradition). The PD clearly took on representation as soon as the fax went through. The sixth has no temporal requirement, yet.
As to the facts here, the fact that the “imminent custodial interrogation” requirement is not met is ridiculous. Murder + extradition = imminent interrogation in the receiving jurisdiction, whether that night or six days later. It’s going to happen. This isn’t someone that has been released for months and held on to this note the whole time, and when finally approached by officers through it in their faces. Everyone knew what was going to happen.
The decision stinks of “well, he confessed, this our mental gymnastics to make it stick.” Next kid, different facts, not a murder, hey it’s distinguishable! When the police left the card in the door, clearly they wanted to speak to him.
We, as lawyers, have this tendency to indulge in our reasoning (i.e., “Because this teenager hadn’t been formally charged, he was relying solely on the Miranda-Edwards fifth right to counsel, which has some vague temporal requirement.”) that may make some lawyerly sense, but misses the point. Rights are invoked by people, not criminal law experts, and must be capable of being invoked without parsing caselaw. What use is the right to counsel if it requires counsel’s specialized knowledge to validly invoke it?
I don’t disagree at all… and to further emphasize the point you make: This kid actually had a lawyer assisting in the invocation that turned out insufficient.
“What use is the right to counsel if it requires counsel’s specialized knowledge to validly invoke it?”
It is a travesty that this question had to be asked by a lawyer in response to something that happened in this country. At what point do we just abandon the Constitution as a whole because it makes it far too difficult to get a conviction?
I know! I know!
The answer is “none”
But now that I think about it, I sense that was a rhetorical question. . ..
Our latest professional norm
Means if you find our questions too warm
While you are our guest,
Make a lawyer request:
Just fill out this triplicate form!
Of course Orin Kerr would find this development “interesting.” It represents precisely his view of how constitutional rights ought to work: “When changing technology or social practice makes evidence substantially harder for the government to obtain, the Supreme Court generally adopts lower Fourth Amendment protections…”
See Orin S. Kerr, An Equilibrium–Adjustment Theory of the Fourth Amendment, 125 Harv. L.Rev. 476, 490 (2011)
While I’m not a fan of his theory, I think this can be chalked up to a much simpler explanation.