Do you know how to invoke your right to an attorney when being questioned by the police? Maybe not.
“You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney, if you cannot afford an attorney, one will be appointed for you.“ That is the standard Miranda warning you probably know by heart thanks to TV shows like Law & Order. From these TV shows, you may also have learned that the police must stop questioning you when you ask for a lawyer, known colloquially as “lawyering up.” But lawyering up isn’t as easy as the TV shows make it seem.
As the result of a string of United States Supreme Court and Pennsylvania Supreme Court cases, your request for an attorney will only be honored if it is clear and unambiguous. This isn’t as easy as it seems, especially when you’re in a stressful situation, confronted with authority and maybe even trying to be polite. In fact, being polite is actually very ambiguous. Take the simple example of needing a glass of water while in police custody. You don’t demand the police bring you a glass of ice water. Instead, you ask, “is there any water around?” To any normal person, that is clearly a request for a glass of water. But both the U.S. Supreme Court and the Pennsylvania Supreme Court would say that was an ambiguous request. The same result would occur if you politely asked, “is there any lawyer available?” You would assume you’ve invoked your right to counsel and the police should stop questioning you; after all, you’ve asked for a lawyer. But according to the courts, you haven’t clearly and unambiguously invoked your right to counsel. All of the following requests have been determined ambiguous requests for an attorney and not invocations of the right to counsel:
- Where is the attorney?
- Maybe I should talk to an attorney.
- I guess you better get me a lawyer.
- Could I call my lawyer?
- I might want to talk to an attorney.
- Do you think I need a lawyer?
- What time will I see a lawyer?
- I might have to get a lawyer then, huh?
- I can’t afford a lawyer, but is there any way I can get one?
- I guess this is where I stop and ask for a lawyer.
So how do you invoke your right to have a lawyer? Unlike Miranda warnings, there are no boilerplate templates on how to invoke your right to counsel. The best way to invoke the right to counsel and stop being questioned by police is to state clearly and unambiguously that you want your attorney present. If you in any way phrase your request for a lawyer as a question, or a request for advice from the police, you haven’t invoked your right to counsel and police can still question you.
One clear phrase that always seems to work is: “I am not talking and I want to speak with my lawyer.” Don’t have one? Not a problem! Call us at Mudrick & Zucker.
