Law enforcement officers engage discursively with suspects and other lay persons, because of the potential to obtain meaningful information that will assist them in the investigation of a crime. The interrogators’ ability to question suspects, however, is limited by the law. Judicial rulings regarding suspects’ rights during custodial interrogation, such as the right to counsel, provide a window into how the United States federal court system, led by the main court of the land, the Supreme Court of the United States, views suspects’ constitutional rights, on the one hand, and the societal benefit of police officers being able to conduct criminal investigations, on the other.

This chapter discusses the evolution of the right to counsel in the federal courts, since the seminal Miranda v. Arizona (1966) ruling, and the insights this history provides in framing the law as a facilitator or, alternatively, a deterrent to suspects invoking their Miranda protected rights, specifically the right to counsel, during custodial interrogation. This analysis of opinions from the Court, circuit courts, district courts, and a few military courts, that make up the corpus, will shed light on how judges have viewed the role of police in society through time, and whether some in the judiciary consider the Miranda ruling as overreaching in its “intended” constitutional protections: that is, constitutional law versus the Court’s law.

2.1 Pre-Miranda: The Fifth and Sixth Amendments and Police Interrogation

The Fifth and Sixth Amendments provide protections to those who will undergo custodial interrogation. While sometimes overlapping, there are several differences between these rights. The Sixth Amendment right to counsel attaches once criminal proceedings against an individual, such as an arraignment, indictment, and post-indictment interrogation, begin. The Fifth Amendment protects persons against self-incrimination. Under Fifth Amendment protections a person does not have to answer official questions in any proceeding, civil or criminal, formal or informal, in which the statements might incriminate the person. The right to silence as a protection against self-incrimination is part of the Fifth Amendment. Now, the right to silence in custodial settings, as the right to counsel, were recognized as part of the Court’s ruling in Miranda v. Arizona (1966). The Court instituted the prophylactic provision of the Miranda warnings to protect persons from the pressures of custodial interrogation.

Prior to the institution of the Miranda warnings confessions needed only be voluntary on the part of the suspect. Historically, and at present, the Court has often ruled on the involuntariness of a statement if there is “genuinely outrageous conduct by the government” (Reference MarcusMarcus, 1993, p. 98), such as beatings and deprivation of food or water, as well as other egregious inhumane behavior. Other less obvious forms of coercion that may render a suspect unable to provide a voluntary statement during custodial interrogation are less defined. Hence, the law requires that confessions be voluntary, yet “answering the voluntariness question requires making assumptions that transform the decision maker into as much psychoanalyst as fact finder” (Reference SundbySundby, 2020, p. 125). As Sundby notes, justices have historically framed the matter of voluntariness with two (divided) characterizations of a suspect being interrogated: the “rugged individual” and the “susceptible individual.” The former “will be able to withstand the pressures inherent to interrogation, and any confession will be presumed voluntary absent either extreme techniques or particular individual vulnerabilities” (p. 136). The latter, on the other hand, “is someone who when faced with the inherent authority of the police in an interrogation atmosphere is likely to be vulnerable to either threats or promises of hope – even if innocent” (p. 141). This characterization at its peak gave us the landmark Miranda decision, which, through time, has been mostly replaced by the “rugged individual” perspective.

As with the notion of voluntariness, the application of Miranda and its effectiveness in protecting suspects’ right to counsel, in practice, is still debated in the courts. The lack of clarity as to what constitutes an unequivocal, voluntary, invocation for counsel in Miranda set the stage for a longstanding legal debate on the concept of unequivocalness and the voluntariness of a suspect’s confession. This debate split between incorporating human nature (Miranda) and placing the onus on the “rugged individual.” The Miranda ruling, which some justices refer to as “our decision” rather than a “Constitutional command,” shows the division of the Court on the need for suspects to be protected against coercive interrogation practices, on the one hand, and police interrogators’ ability to investigate crime, on the other. The justices’ views, some concurring and others dissenting, have shaped lower court rulings and, in many regards, gave us the current and established “Miranda divide” in the federal court system.

2.2 Miranda v. Arizona (1966): A Prophylactic Rule Riddled with Dissent

In Miranda, the defendant (Ernesto Miranda) was arrested by the Phoenix Police Department, on kidnapping and rape charges of an eighteen-year-old woman. Police officers interrogated Miranda for two hours. Afterward, he signed a confession to the rape charge. Prior to the start of the interrogation, Miranda was not informed of his right to counsel. At trial, when prosecutors offered Miranda’s written confession as evidence, his court-appointed lawyer objected on the grounds that the confession was not voluntary and should be suppressed. Based on his confession and other corroborating evidence, Miranda was convicted of rape and kidnapping. Miranda appealed to the Arizona Supreme Court. The Arizona Supreme Court affirmed the lower court’s decision to admit the confession. The case was subsequently appealed and, ultimately, reviewed by the Court. The basis of the case is “the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself” (Miranda v. Arizona, 1966, p. 440).

Miranda set a precedent for protecting persons’ rights during police questioning and defining what constitutes custodial interrogation. Chief Justice Warren, who delivered the majority opinion of the Court, addressed both key matters in his ruling:

The ruling emphasizes the risks inherent in a police-dominated atmosphere and the need for individuals to be informed of their right to silence and be advised by counsel.

The Court also made a point to address the recurrent argument that the need for interrogation outweighs the privilege. The Court points to the way law enforcement agencies, such as the Federal Bureau of Investigation (FBI), who conducted interrogations in this case, advise any suspect or person under arrest: “A letter received from the Solicitor General in response to a question from the Bench makes it clear that the present pattern of warnings and respect for the rights of the individual followed as a practice by the FBI is consistent with the procedure which we delineate today” (Miranda v. Arizona, 1966, p. 484). The responses provided in the letter indicate that the “warning may be given to a person arrested as soon as practicable after the arrest, … but in any event it must precede the interview with the person for a confession or admission of his own guilt” (p. 485). These guidelines are per the passage of the Criminal Justice Act of 1964, which provides free counsel for federal defendants who are unable to pay. The responses also include the statement that if a person indicates that they wish to speak to counsel prior to providing statements, the interview is terminated unless the person is indecisive in their request for counsel. The Court argues that the practice of the FBI can readily be followed by state and local law enforcement agencies. Of note, it is important to highlight that the undefined, indecisive requests for counsel noted in the “letter” are in contrast with Justice Warren’s majority opinion about invoking counsel which emphasizes that an individual who indicates in any manner that they wish to consult with counsel cannot be questioned by police. This issue is not clarified or overtly addressed in the ruling.

Another consistent theme in the Court’s Miranda opinion is the need to protect persons from law enforcement’s potentially deceptive practices that may lead them to waive their rights. To this end, Justice Warren provided extensive background of past and present interrogation techniques. He discussed the Reid technique, which he refers to as the “manuals,” and the police officers’ responses when suspects express a wish to speak to a relative or an attorney. He states:

Justice Warren’s opinion reflects his view of the constitutional foundation underlying the privilege: “To maintain a ‘fair state-individual balance,’ to require the government to shoulder the entire load” (Miranda v. Arizona, 1966, p. 460). For the Court, the warnings provide suspects who are subject to custodial interrogation a protection that takes speculation out of the interrogation room:

The Court specified that the right to counsel “does not mean, as some have suggested, that each police station must have a ‘station house lawyer’ present at all times to advise prisoners” (Miranda v. Arizona, 1966, p. 474). The warnings, however, place a heavy burden on the government to demonstrate suspects have knowingly and voluntarily waived their rights to self-incrimination and to counsel.

The dissenting opinions on the Court’s majority ruling include applying the equal protection rule of the Fifth Amendment and the due process “voluntariness” test under the Fourteenth Amendment (Justice Clark), rather than “extending the Fifth Amendment’s privilege against self-incrimination to the police station” (Justice Harlan joined by Justice Stewart and Justice White). For the dissenting justices, extending the Fifth Amendment to include the right to counsel provision to the police station is a “dubious” application of constitutional law. They note that coercion in the traditional due process sense is not at question in the case, but solely a lack of counsel or lack of reading of the warnings. Justice Clark opined that he was unable to join the majority:

Justices Harlan, Stewart, and White also chimed in noting that the majority’s opinion was “poor constitutional law” (Miranda v. Arizona, 1966, p. 504) and the creation of new constitutional law. They, as Justice Clark, also argued that “the Court has given ample recognition to society’s interest in suspect questioning as an instrument of law enforcement” (p. 509). The justices opine that reminding suspects of their right to silence and that their confession may be used in court are “minor obstructions” (p. 516). But to require “an express waiver by the suspect and an end to questioning whenever he demurs must heavily handicap questioning. And to suggest or provide counsel for the suspect simply invites the end of the interrogation” (p. 517). These statements reflect the justices’ differing views on how much, and which type of, constitutional oversight police questioning requires. As the justices’ opinions in Miranda show, the Court has been consistently divided on this issue. Subsequent rulings reflect the Court’s stance on this longstanding “fight” (see Oregon v. Elstad, 1985, which stresses Miranda’s prophylactic purpose and its origin in the Court rather than in the Constitution).

Since the Miranda decision, the Court has narrowed the scope of Miranda guarantees. This is partly due to the ruling being “riddled with exceptions and strapped with limitations” (Reference MarcusMarcus, 1993, p. 94). The ambiguities in Miranda, rather than the sentiment of the majority opinion of the Court, opened the door for continued debate as to what constitutes an unequivocal invocation for counsel. A debate that, predominantly, has two sides: one that places a higher burden on the suspect to invoke counsel and the other that places a higher burden on police investigators to observe individual rights. The next sections will explore post-Miranda rulings that have shaped the invocation for counsel discussion. These rulings will be divided into three key (legal) periods in the invocation for counsel debate: post-Miranda and Edwards, post-Edwards and Davis, and post-Davis to present-day law.

2.3 1966–1981: Post-Miranda and Edwards

The discussion on Miranda guarantees, such as the right to counsel, unequivocalness of an invocation for counsel, voluntariness, and what constitutes custodial interrogation are at the center of four defining post-Miranda rulings (1979–81): Fare v. Michael C. (1979), Nash v. Estelle (1979), Rhode Island v. Innis (1980), and Edwards v. Arizona (1981).

In Fare v. Michael C. (1979), the Court reviewed en banc whether the California Supreme Court erred in finding that the respondent’s request for his probation officer was a per se invocation of his Fifth Amendment rights under Miranda and whether the statements obtained during the defendant’s subsequent interrogation after he requested to see his probation officer were admissible. The Court also addressed whether the defendant voluntarily and knowingly waived his rights and consented to continued interrogation after denial of request to consult with his probation officer.

The interrogation occurred after the respondent, Michael C., who was a juvenile at the time (sixteen and a half years of age) and implicated in a murder, was read his Miranda rights at the police station. The question regarding the right to counsel prompted the following exchange, as shown in Excerpt 2.1.

The exchange continued for a short period with the police officer providing responses consistent with redirecting the respondent to respond specifically as to whether he wanted to talk to them (the police) without an attorney present and waive his rights or not say anything. The respondent chose to talk to the police: “A. Yeah I want to talk to you.”

The Supreme Court of California ruled that the respondent’s request to see his probation officer at the onset of the interrogation indicated his unwillingness to discuss his case with the police and, thus, he invoked his Fifth Amendment privilege. The court opined that a minor’s request for a probation officer was akin to requesting to see a parent during interrogation, and thus, under the Burton rule, constituted an invocation of the minor’s Fifth Amendment rights. On appeal, the Court disagreed. The Court’s ruling states that the California court “significantly has extended this rule by providing that a request by a juvenile for his probation officer has the same effect as a request for an attorney” (Fare v. Michael C., 1979, p. 719). The Court opined that the Supreme Court of California erred in ruling that the police needed to cease interrogating the respondent, after he asked to speak with a probation officer, and that the statements he made during interrogation should have been suppressed.

Two points are particularly salient in the Court’s ruling. First, the Court discusses the notion of the Miranda per se rule, which the Court argues lies with an attorney and should not be extended to other persons: “we decline to find that the request for the probation officer is tantamount to the request for an attorney” (Fare v. Michael C., 1979, p. 724). Of note, the Court does not address what constitutes an unequivocal invocation for counsel within the Miranda per se rule. This matter will continue to be argued and debated by the courts. Second, the Court’s analysis on the voluntariness of a juvenile’s statements and the role of the police in the interrogation provides insights into how the Court and, in its application, the federal court system, assesses juveniles, persons who commit crimes, and police conduct during an interrogation (i.e., the context discussion). In this case, the Court argues that “the interrogation reveals that the police officers conducting the interrogation took care to ensure that respondent understood his rights” (Fare v. Michael C., 1979, p. 726). The Court adds that the respondent, despite his age and the circumstances that may disadvantage minors, voluntarily waived his rights and continued the interrogation:

The notion that a person’s criminal record adds to their sophistication when navigating police interrogation and the criminal justice system is a common theme among federal court rulings in the corpus. In these rulings, the judiciary considers experience with the criminal justice system as being directly correlated with suspects’ ability to engage in a police interrogation and knowingly and voluntarily waiving their rights. In Fare, the fact that the suspect’s background knowledge and experience was mostly in institutional settings supervised by probation authorities, however, is not considered a significant factor in the suspect’s thought process when invoking counsel during custodial interrogation.

In Nash v. Estelle (1979), the Fifth Circuit argued further on the Miranda per se rule. The court’s analysis specifically raised the question of equivocalness when invoking counsel. In Nash, the defendant who was arrested for murder, was brought before a magistrate judge and informed of his Miranda rights. The dispute lies on whether the district attorney (Files) violated Nash’s right to the presence of counsel during the course of their initial June 2 conversation. The dialogue is lengthy. The interrogation includes the reading of the rights, obtaining oral acknowledgment of the rights as read, and the signing of the Miranda waiver form. Excerpt 2.2 shows where Nash’s, at question, invocation for counsel occurs:

The district court held that Files had no doubt that Nash wanted an attorney and, without holding an evidentiary hearing, granted Nash’s petition for a writ of habeas corpus on the grounds that a written confession introduced against Nash had been obtained in violation of his Miranda rights. The majority opinion of the circuit court disagreed with this ruling.

The court cites one of its own rulings, United States v. Priest (1969), to address the question of whether Nash voluntarily waived his right to counsel. In Priest, the court ruled that if there is a request for an attorney prior to any questioning “a finding of knowing and intelligent waiver of the right to an attorney is impossible” (p. 493). Furthermore, if the request is not observed and statements are given these must not be construed as the result of a voluntary waiver. The Nash court notes: “We construe Priest to bar inquiry as to waiver when, prior to any questioning, the suspect makes an unequivocal request for an attorney’s presence, as was done in Priest, and when the request is disregarded and the questioning proceeds” (p. 517). The court argues that unlike Priest the defendant did not invoke counsel unequivocally. On the contrary, Nash was informed of his rights and responded with both a desire for counsel and a desire to continue talking with police without the presence of counsel: “Where the suspect’s desires are expressed in such an equivocal fashion, it is permissible for the questioning official to make further inquiry to clarify the suspect’s wishes” (p. 517). The court argues that Miranda also contemplated a suspect’s indecisiveness regarding the presence of an attorney: “If [a suspect] is indecisive in his request for counsel, there may be some question on whether he did or did not waive counsel. Situations of this kind must necessarily be left to the judgment of the interviewing Agent” (Nash v. Estelle, 1979, p. 517, citing Miranda v. Arizona, 1969, p. 485). In Nash, the court opines that although a suspect has the right to terminate an interrogation, some suspects may want to confess their crimes and others may want to assess their options. Citing Michigan v. Mosley (1975): “[A] blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests” (Nash v. Estelle, 1979, p. 517). In Nash, the per se precedent of Priest does not exclude police seeking clarification. Yet, the circuit court warns that police interrogators cannot use clarification as a guise to coerce or intimated the suspect.

The circuit court’s conclusion in Nash is that the suspect never requested an attorney during questioning and merely sought assurances. The court disagreed with the inferences drawn by the district court and concluded that Nash never requested an attorney’s presence during questioning, and Files’ responses were not subtle attempts to dissuade Nash from invoking his right to counsel. The court adds that Nash’s use of the word “lawyer” is not endowed with talismanic qualities, hence the questioning did not have to cease. This would have denied Nash his desire to continue questioning. The court concludes that “considering the actors and the setting, the exchange is not infected with a sinister undertone. Files did not violate any right accorded Nash by Miranda or Priest. The district court erred in granting the writ” (Nash v. Estelle, 1979, p. 520).

The majority opinion of the circuit court in Nash is not supported entirely by the court with some of the judges concurring in part and others dissenting in part. All the judges who dissented agreed that the majority ruling “creates precedents that endanger the right of those suspected of crimes to be free from coercive interrogations” (p. 521). One of the most significant points in the dissent is captured in the characterization and potential effect of the ruling on custodial suspects’ rights:

The latter is a powerful argument that expresses concern on the legal precedent that Nash creates, such as establishing an exception based on the equivocalness of the invocation, and the “motivations” of public officers that conduct interrogations:

The dissenting judges also cast doubt on the need for clarification after Nash asked “If I want a lawyer present, I just put down here [on the waiver form] I want him present?” They argue that the alleged need for clarification arose from interrogation that continued after it should have ceased. The notion of “equivocalness” created by continued interrogation after an unambiguous, unequivocal request for the presence of counsel cannot serve as the basis for an exception to the Priest per se rule. The judges add that the creation of an equivocalness exception, which is susceptible to a clear definition, may create a context in which the officers are able to find or create “equivocalness where there is none and in so doing force the suspect constantly to reassert his right to counsel” (p. 526). When the interrogator gets to decide what the suspect truly intends a shift in control from accused to interrogator may occur. Removing the bright-line rule of stopping an interrogation when the suspect requests counsel may benefit the interrogator and facilitates postponing the supply of counsel after a request. For the dissenting (in part) judges there is no doubt that Files understood that Nash wanted an attorney and that the alleged equivocation occurred after continued questioning: “Attempts by interrogators to persuade the suspect that he does not need an attorney present are nothing more than attempts to get the suspect to accept the untruth that the interrogators are ‘acting solely in [the suspect’s] best interest’” (p. 524).

The judges’ dissent in Nash also addresses Nash’s alleged intellectual limitations and impaired cognitive skills:

The Nash ruling puts a spotlight on the possible pitfalls of creating an arbitrary standard of “equivocalness” and police interrogators using clarifications to resolve alleged equivocal/ambiguous requests for counsel. On the issue of invocation, Nash relies on a portion of the majority opinion in Miranda that deals with a suspect being indecisive (undefined) in a request for counsel. Reflecting on Miranda, this portion of the ruling does not represent the general spirit of the Court in protecting suspects from coercive police interrogation tactics, often requiring a broad interpretation of suspects’ invocations for counsel. This aspect of Miranda is lost in Nash’s majority opinion but is consistent with the conflicting views of many in the judiciary on the issue of unequivocalness, voluntariness, and custodial interrogation. The legal standing of these matters is examined further in Rhode Island v. Innis (1980).

A suspect’s invocation for counsel, per Miranda, attaches once a suspect is under custodial interrogation. In Rhode Island v. Innis (1980), the Court qualified the definition of Miranda as “any words or actions on the part of the police other than those normally attendant to arrest and custody that the police should know are reasonably likely to elicit an incriminating response from the suspect” (p. 292). The Court added that courts must consider the circumstances of each case when making a determination of custody. The Court ruled that questioning aimed at gathering background biographical data does not constitute interrogation. This created a booking exception to Miranda. In this sense, if a suspect is not under custodial interrogation, Miranda does not limit the use of a suspect’s statements. This includes scenarios in which a suspect has requested counsel and provided statements during the booking phase of police interrogation (see Reference MasonMason, 2013).

The Court’s majority opinion was supported in concurring opinions by Justice Burger, who opined that the results of the ruling were not inconsistent with Miranda, and Justice White. The dissenting opinion of Justice Stevens, however, highlights the perspective of some justices that the term “interrogation” in Miranda should be interpreted broadly. Justice Stevens noted that the Innis ruling narrows the definition of interrogation in a manner inconsistent with the rights protected in Miranda:

To this statement, Justice Stevens adds:

This opinion exemplifies the view of some Court justices of the need to broadly apply Miranda guarantees in order to ensure suspects’ rights are observed during all stages of custodial interrogation, including the booking phase. This perspective is further captured in the Court’s Edwards v. Arizona (1981) ruling. The Court’s subsequent attempt at addressing Miranda protections almost two decades later.

In Edwards, the petitioner (Edwards) was arrested and taken to the police station where he was read his Miranda rights. He stated that he understood his rights and was willing to talk to the police. At some point in the interrogation, he is informed that another suspect in custody has implicated him in the crime. Edwards denied the accusation and tried to “make a deal.” The detectives informed Edwards that they didn’t have the authority to make a deal but wanted a statement from him. After, Edwards made a phone call to a county attorney, but hung up without talking to counsel. Edwards then said: “I want an attorney before making a deal.” At that point, the detectives ceased the interrogation and Edwards was taken to the county jail. The next morning the detectives went to the jail and asked to talk to Edwards. Edwards told the detention officer that he did not wish to talk to them. The guard told him he “had” to talk to the officers and took him to see them. Edwards was re-Mirandized. After listening to the tapes in which another suspect implicates Edwards, he replied to the officers: “I’ll tell you anything you want to know, but I don’t want it on tape. He thereupon implicated himself in the crime” (p. 479).

The majority Court ruled: “We think it is clear that Edwards was subjected to custodial interrogation on January 20 within the meaning of Rhode Island v. Innis and that this occurred at the instance of the authorities. His statement made without having had access to counsel, did not amount to a valid waiver and hence was inadmissible” (p. 487). The justices ruled to reverse the judgment of the Arizona Supreme Court. The concurring judgments of Justices Burger, Powell, and Rehnquist, albeit are supportive of the reversal of the state court judgment, provide insights into another important aspect of case law: the concept of “initiation” after a suspect’s invocation for counsel.

Justice Burger opines that although he concurs with the judgment, he does not agree with the notion that a “special rule” is needed for protecting a custodial suspect from being “free from interrogation” (p. 488). Justice Burger argues that: “The extraordinary protections afforded a person in custody suspected of criminal conduct are not without a valid basis, but, as with all ‘good’ things, they can be carried too far” (p. 488). He adds: “The notion that any ‘prompting’ of a person in custody is somehow evil per se has been rejected” (p. 488). For Justice Burger, the legal standard should be whether the resumption of an interrogation is the result of a knowing and voluntary waiver.

Justice Powell, with whom Justice Rehnquist joins, concurs with the ruling. However, they, as Burger, expressed concerns over the Court’s emphasis on “initiation.” Justice Powell argues that the ruling is unclear: “If read to create a new per se rule, requiring a threshold inquiry … as to precisely who opened any conversation between an accused and state officials, I cannot agree. I would not superimpose a new element of proof on the established doctrine of waiver of counsel” (p. 490). Justice Powell adds that police may inquire whether suspects have changed their minds about speaking to them without the assistance of counsel: “It is not unusual for a person in custody who previously has expressed an unwillingness to talk or a desire to have a lawyer to change his mind and even welcome an opportunity to talk. Nothing in the Constitution erects obstacles that preclude police from ascertaining whether a suspect has reconsidered his original decision” (p. 490). Justice Powell refers to this as a “paternalistic rule” consistently rejected by the Court protecting a suspect from making a knowing and voluntary waiver:

Justice Powell concludes that he hesitated to join the opinion of the Court precisely due to the undefined emphasis on “initiation.” The element of “initiation,” coupled with the equivocalness standard, will challenge what some justices later refer to as the “bright-line” Edwards’ rule.

2.4 Post-Edwards to Davis: 1981–1994

One of the first post-Edwards’ rulings in the corpus that address the (un)equivocalness of an invocation for counsel is United States v. Prestigiacomo (1981). In Prestigiacomo, a ruling of the United States District Court, E. D. New York, the defendant (Prestigiacomo) was arrested on drug related charges. The defendant was a native speaker of Italian and required the aid of an interpreter. A senior customs inspector, Frank Giordano, was asked to serve as an interpreter. He would also conduct the interrogation. While in custody, Prestigiacomo was Mirandized, and Giordano informed the defendant that he was going to ask him some questions. In response, the defendant said the cans contained olive oil and had been given to him by somebody named Finazzo. After he mentioned the name of Finazzo the defendant said: “Maybe it would be good to have a lawyer.” Giordano made no attempt to clarify the defendant’s intent or get him a lawyer: “[i]t was up to him to request one” (p. 682). Giordano continued the interrogation after asking the defendant whether he was willing to continue answering questions, to which the defendant replied in the affirmative.

The defendant argued that his statement “Maybe it would be good to have a lawyer” constituted an unequivocal request for counsel, hence all questioning should have ceased until an attorney was present. In its review of the case, the court argues:

The court also notes that the defendant was not a native speaker of English and was unfamiliar with United States law – factors that should be considered. Furthermore, there was no significant amount of time between the defendant’s statement “Maybe it would be good to have a lawyer,” and Giordano’s initiation of questioning. The court ruled that the defendant did not make an intelligent and voluntary waiver of his Miranda rights.

The Prestigiacomo case exemplifies how some lower district courts have applied legal precedence after Edwards in cases that deal with questions such as: (1) what constitutes an invocation for counsel per Miranda?; (2) is clarification needed or suggested after a potentially equivocal invocation for counsel?; (3) does the bright-line rule of Edwards apply to all suspect “initiations” (later addressed in the Court’s Shatzer’s (2010) ruling regarding the two-week Miranda break in custody)?; and (4) should the role of individual factors, such as a person’s understanding of English, United States law, level of education, and intellectual/cognitive abilities be considered when examining a suspect’s invocation for counsel and waiving of rights? Lower courts’ interpretation of these queries must not contradict Court precedence, but as the cases in the corpus show an interpretation of undefined legal questions, such as what constitutes an unequivocal invocation for counsel, is often “left” to the lower courts to interpret without specific guidance from the Court.

Smith v. Illinois (1984), also cited as Smith I, is one of those seminal cases in which the Court takes on the question of unequivocalness, but without providing a definition for equivocal/unequivocal invocations for counsel. In Smith I, the petitioner (Smith), who was eighteen years old, was arrested and read his Miranda rights. When the police interrogator asked him whether he understood his right to consult an attorney, Smith responded “Uh, yeah. I’d like to do that” (p. 93). Prior to this, the defendant expressed concerns as to whether the police would “railroad” him. The police interrogation continued after his response to securing counsel and Smith provided incriminating statements.

To address Smith’s invocation for counsel, the Court took an approach that departed from the per se standard and adopted instead the “threshold of inquiry.” The latter approach is moored in the broad interpretation of Miranda guarantees. The Court argued that an accused’s request for counsel may be ambiguous or equivocal: “As the majority and dissenting opinions below noted, courts have developed conflicting standards for determining the consequences of such ambiguities … We need not resolve this conflict in the instant case” (p. 96). For the Court, if an accused expresses the desire to have legal representation during custodial interrogation, and where there is nothing about the request for counsel to render it ambiguous, questioning must cease. The Court also made a clear distinction between invocation and waiver:

In a per curiam decision, the Court granted the appeal, reversed the judgment of the Illinois Supreme Court, and remanded the case for further proceedings. The dissenting opinion of Justice Rehnquist, joined by the Chief Justice and Justice Powell, however, shows a different perspective of the role police interrogators play in interpreting a suspect’s invocation for counsel. The dissenting judges argue that the Court assumes that there is no equivocation in Smith’s statement: “Uh, yeah. I’d like to do that.” The justices remind the Court that: “As the Illinois Appellate Court observed, the officer reading petitioner his rights did not understand the statement as a clear request. After first reading petitioner the fourth Miranda right, he immediately sought clarification by asking petitioner pointedly, ‘Do you wish to talk with me at this time without a lawyer being present?’” (p. 101). For the dissenting justices, the Court has erroneously concluded that Smith made a clear request for counsel and the police interrogators’ subsequent behavior was coercive and aimed at badgering and tricking the petitioner into waiving his rights. In the justices’ opinion, the police interrogators behaved within clearly established case law.

Smith I, and its dissenting opinion, raises some important points moving forward: (1) the interpretation of Edwards, specifically the effect of an absent Edward’s bright-line rule when a suspect requests counsel; (2) the importance of assessing, through context, whether a request for counsel is ambiguous (albeit without defining it); (3) the Court’s differing views on what constitutes a suspect being “badgered” to speak to police, (for some) absent a bright-line rule; and (4) the notion, and applicability, of “police overreaching.” These concepts in practice and at the discursive level are often intertwined, adding to the complexity of the Court’s perception of the role of police interrogators in interpreting and giving (or not) discursive relevance to a suspect’s invocation for counsel. The police interrogators’ use of follow-ups to “clarify” a suspect’s equivocal/ambiguous invocation for counsel and/or to initiate talk after an invocation is also at the center of post-Edwards rulings.

In United States v. Fouche (1987), often cited as Fouche II, the Ninth Circuit reviewed Fouche’s claim that interrogators did not clarify his equivocal request for counsel, which violated his Miranda rights and rendered his statements inadmissible. The exchange in question occurs shortly after the defendant was Mirandized. The defendant asked to call an attorney: “[he] might want to talk to a lawyer” (p. 1286). The agent left the room and the defendant called his wife instead. When the agent returned, he reread the defendant his Miranda rights. The defendant told the agent that he had not called an attorney but had called his wife and she had told him to do whatever he wished. He then asked the agent, “What should I do?” (p. 1290). The agent told him he wasn’t an attorney, and he couldn’t give him advice. The agent then asked him, “Do you want to make a statement?” (p. 1291) and the defendant said he did. The court held that the defendant had made an equivocal request for counsel, and his Fifth Amendment rights had not been violated. The court reasoned that the agent’s failure to specifically ask the defendant if he wanted a lawyer was not error, in that the Nash decision does not require a “mechanical and talismanic repetition of the word lawyer when Miranda warnings have been given twice in great detail and the suspect has understood his rights” (p. 1289). The court ruled that the agent sufficiently clarified Fouche’s equivocal request for counsel, the interrogation did not violate Miranda, and Fouche’s confession was legally obtained. The court affirmed the decision of the lower court on these grounds. The court’s opinion, however, is not unanimously shared.

The dissenting opinion in Fouche II offers a different perspective to Fouche’s invocation for counsel that is more consistent with prior rulings anchored on the per se standard of Miranda. In Judge Ferguson’s dissenting opinion, he argues that the exchanges that followed Fouche’s first request for counsel “he might want to talk to a lawyer” did not serve to clarify and added to the uncertainty of the request. The judge argues that Fouche was requesting legal advice and the agent should have asked him whether he wanted an attorney, rather than respond that he was not a lawyer and could not advise him on legal matters. The judge adds that Fouche’s second request for legal advice to the agent, “what should I do?,” may constitute a second equivocal request for counsel following Miranda: “The Supreme Court stated in Miranda that a suspect invokes his right to counsel when he ‘indicates in any manner and at any stage of the process that he wishes to consult an attorney’” (United States v. Fouche, 1987, p. 1290). The judge notes that although the Court has not defined what constitutes an unequivocal assertion of the right to counsel, other courts have found an equivocal assertion of counsel to be sufficient to invoke Miranda rights. Following this reasoning, Fouche’s statements were inadmissible.

In Connecticut v. Barrett (1987), the question before the Court is whether a broad application of Miranda applies to a suspect in custody who indicates a willingness to respond to questions orally but refuses to make a written statement without an attorney present. This case shows the continuous unsettled debate in the courts, post-Miranda, regarding the validity of broad versus (more) narrow interpretations of Miranda invocations.

In Barrett, the respondent (Barrett) was read his Miranda rights three times and each time he stated that “he was willing to talk about [the incident] verbally but he did not want to put anything in writing until his attorney came” (p. 523). Barrett provided a confession after making these statements. The Supreme Court of Connecticut reversed the conviction and held that Barrett had invoked his right to counsel when he refused to make written statements without an attorney present. In the court’s view, “Barrett’s expressed desire for counsel before making a written statement served as an invocation of the right for all purposes” (p. 523). The lower court based its decision, in part, on the broad interpretation of Miranda invocations for counsel: “No particular form of words has ever been required to trigger an individual’s fifth amendment protections; nor have requests for counsel been narrowly construed” (Connecticut v. Barrett, 1987, citing State v. Barrett, 1985, p. 527). The Court, which reviewed the case on appeal, disagreed.

Chief Justice Rehnquist, who delivered the majority opinion for the Court, argued that the lower court’s judgment was erroneous, since Barrett made it clear to the police interrogators that he was willing to talk to them about the crime for which he was accused. As the trial court found, there was no evidence that the interrogators coerced or tricked the suspect into waiving his rights. Rehnquist adds that Barrett’s statement that he will not put anything in writing without the presence of counsel is not an ambiguous interpretation that requires a broad interpretation, which the Chief Justice notes is a settled approach: “we do not denigrate, nor the distinction between written and oral statements which are irrelevant and do not interfere with the suspect’s voluntariness” (Connecticut v. Barrett, 1987, citing Michigan v. Jackson, 1986, p. 530). Justice Stevens, with whom Justice Marshall joins, dissented. The justices raise two questions: “why did the Court decide to exercise its discretion to grant review in this case?” (p. 536) and “why was respondent’s request for the assistance of counsel any less ambiguous than the request in Edwards v. Arizona?” (p. 537). For the justices, the Court’s inconsistent treatment of Barrett and Edwards – making Barrett’s request for counsel less than Edwards – “is not adequately explained in the Court’s opinion” (p. 537).

In Smith v. Endell (1988), also cited as Smith II, the Ninth Circuit tackled the legal assessment of invocations for counsel that are (newly) deemed “conditional,” an outcome of the more prevalent debate on the unequivocal–equivocal invocation for counsel continuum. The court also revisited the role of clarifications with invocations that fall short of being unequivocal/unambiguous. In Smith II, the defendant (Smith) who had been Mirandized and had waived his rights talked to the police interrogators. After an hour of interrogation, Smith made the following request for counsel: “Can I talk to a lawyer? At this point, I think maybe you’re looking at me as a suspect, and I should talk to a lawyer. Are you looking at me as a suspect?” (p. 1529). The interrogators engaged Smith and did not cease the interrogation. Smith and the police interrogators continued their back and forth regarding Smith being considered a suspect. At one point the police reminded him of his rights, including the right to an attorney. Here, Smith’s defense alleges he made his second attempt at requesting counsel: “I don’t know if I need one or not. That’s why I’m trying to make my mind up, if I need to go that route for myself, you know” (p. 1530). The Superior Court denied Smith’s motion to suppress, on the grounds that Smith’s two references to counsel: “was merely underscoring the fact that he has a right to counsel … He’s undecided whether he needs one and elects to go forward” (p. 1530). The Alaska Court of Appeals affirmed the lower court’s decision. The magistrate judge found Smith’s first request for counsel, conditional, and the police interrogators’ behavior, albeit fell short of asking for clarification, constitutional. The Ninth Circuit found the magistrate judge’s analysis flawed. The court ruled that although Smith’s request for counsel was conditional, it was not ambiguous and questioning should have stopped. The court adds that even if the request was ambiguous or equivocal the police interrogators should have limited their questions to clarification and to providing a direct response as to whether he was a suspect. Circuit Judge O’Scannlain’s dissent provides another perspective.

Judge O’Scannlain argues that Smith never invoked counsel, was merely “thinking out loud,” and the police clarified Smith’s statements regarding counsel. For Judge O’Scannlain, Smith’s alleged requests for counsel were ambiguous-equivocal:

The dissenting opinion, as the majority ruling of the court, provides no clear definition for these categories of invoking counsel and, ostensibly, uses equivocal and ambiguous interchangeably.

The next case, Owen v. Alabama (1988), also addresses the issue of clarification raised in Smith I and Fouche II, but with the added caveat of “harmless error.” For context, shortly after the Miranda ruling, the Court decided in Michigan v. Tucker (1974) that it was permissible to use against the defendant the testimony of a witness who was discovered because of statements obtained from the defendant in violation of Miranda. This also applies if a defendant’s testimony is inconsistent with prior statements to police. The prior illegally obtained statements may also be admissible to show the inconsistency and impeach the defendant’s testimony. Thus, a court may rule that the introduction of statements at trial is/was “harmless error,” even if the statements were obtained in violation of Miranda. The legal definition of “harmless error” may have significant repercussions for a suspect who may have invoked counsel unequivocally, but due to the continuation of the police interrogation provided incriminating statements that were entered as evidence at trial.

In Owen, the defendant, a former police officer, while being read his Miranda rights interrupted the police interrogators and said: “I know my damn rights” (p. 537). Later at the police station, the police officers reread Owen his Miranda rights. When the police officers informed Owen that he had the right to an attorney, the defendant said: “I think I’ll let ya’ll [sic.] appoint me one” (p. 537). The police officers continued to read Owen his Miranda rights. He refused to sign the waiver of rights form. Owen was interrogated and he confessed to the crime of murder of which he was accused. The police interrogator testified that the defendant said something like “can I call my lawyer now” or “I want my lawyer now” (p. 538). At this point, questioning stopped. Owen argued that his confession should be suppressed, since it was obtained in violation of Miranda. The Eleventh Circuit affirmed the district court’s ruling granting the writ of habeas corpus.

Judge Johnson, who delivered the opinion of the court, argued that the facts in Owen were very similar to those in Smith I. The judge states that: “The settled approach to questions of waiver requires courts ‘to give a broad, rather than a narrow interpretation to a defendant’s request for counsel’” (p. 539). The judge adds that even if Owen’s statement was not unequivocal, it was at a minimum an equivocal request for counsel. In such situations: “This Court employs an equally ‘rigid prophylactic rule.’ When a defendant makes an equivocal request for an attorney during a custodial interrogation: the scope of that interrogation is immediately narrowed to one subject and one only. Further questioning thereafter must be limited to clarifying that request until it is clarified” (p. 539). Judge Johnson points that the fact that Owen was a former police officer should not cast doubt on his request for an attorney, because it was formulated equivocally. As the Court ruled in Smith I: “post request responses to further interrogation cannot be used to cast doubt on the clarity of the initial request” (cited in Owen v. Alabama, 1988, p. 538).

The subsequent, and noteworthy point, addressed in this case is whether the State’s failure to suppress the defendant’s confession constitutes harmless error: “The failure to suppress statements obtained in violation of Miranda can be harmless error” (p. 540), per Cape v. Francis (1984). To qualify as harmless error, the error in admitting a confession cannot contribute to the defendant’s conviction. To determine this, the court must review the facts and the effect of unlawfully admitted evidence. In Owen’s trial: “The Court must consider ‘whether absent the so-determined unconstitutional effect, the evidence remains not only sufficient to support the verdict but so overwhelming as to establish the guilt of the accused beyond a reasonable doubt’” (p. 540). The circuit court ruled that Owen’s confession constituted significant evidence. Hence, the introduction of Owen’s confession at trial was not harmless error. Furthermore, the police did not seek clarification when Owen made, at a minimum, an equivocal request for counsel and continued the interrogation, in violation of the Eleventh Circuit’s precedents. This opinion reiterated several key points: (1) the conflicting and varied interpretations of what constitutes an invocation for counsel (not yet defined); (2) the need for police to clarify equivocal invocations; and (3) the harm of not suppressing an illegally obtained confession in the outcome of a trial. As the chapter shows, judges have disparate views of the role of confessions in shaping the trajectory and outcome of a trial.

The next case, Robinson v. Borg (1990), a ruling of the Ninth Circuit, exposed the relationship between a suspect’s invocation for counsel, police follow-ups, and making a knowing and voluntary waiver. Robinson claimed that he did not make a knowing and voluntary waiver and that prior to making incriminating statements he unequivocally invoked his right to counsel when he stated: “I have to get me a good lawyer, man. Can I make a phone call?” (p. 1390). The circuit court agreed with Robinson and reversed and remanded the district court’s denial of Robinson’s petition for habeas corpus relief. Circuit Judge Reinhardt, who delivered the opinion of the court, argued that the rigid prophylactic rule of Edwards applied in this case. He stated, reiterating case law, that a suspect’s requests for counsel are to be given broad effect, doubts need to be clarified, and post responses cannot be used “to cast retrospective doubt on the clarity of the initial request itself” (p. 1391). For Judge Reinhardt “the simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly” (p. 1392). The judge noted that the State’s contention that Robinson did not invoke counsel because he was not attempting to invoke at the moment he made the request is inconsistent with case law: “we take a defendant’s words ‘understood as ordinary people would understand them’” (see Connecticut v. Barrett, 1987). Furthermore, the Court does not impose a “magical formulation” when invoking rights. A suspect only needs to clearly express the desire to consult with counsel.

Circuit Judge Trott offered a dissenting opinion. Judge Trott’s opinion raises several points regarding the treatment of ambiguous invocations for counsel. The judge argues that the suspect’s statement: “I have to get me a good lawyer man. Can I make a phone call?” requires interpretation in context, due to its potential ambiguity. The judge notes that Robinson’s statements were preceded by a waiver and continued interrogation where he expressed the desire to speak to police without the presence of counsel. For judge Trott, the court’s ruling on Robinson may constitute overreaching: “the distinction between rights themselves, on the one hand, and suggested safeguards … not intended to ‘create a constitutional straitjacket,’ on the other … is one of considerable substance” (p. 1399). This view that Miranda is not a “Constitutional command” is noted in Miranda’s dissenting opinion, as well as post-Miranda main opinions, and persists until present, showing the divide among some in the judiciary about the interpretation (broad versus narrow) and application of Miranda guarantees.

The broad approach to interpreting Miranda warnings takes a different turn in United States v. Lux (1990). In this Tenth Circuit ruling, the court reviewed Lux’s contention that her statements to police during custodial interrogation were not provided freely or voluntarily and she had requested an attorney. The court found no error with the trial court’s decision. The court determined that Lux had been advised of her Miranda rights, she acknowledged the rights and voluntarily waived them, and her “request” for an attorney “by asking how long it would take if she wanted a lawyer and if she would have to stay in jail while she waited for a lawyer” (p. 1382) did not constitute a clear or even equivocal invocation for counsel. The court also finds that the police interrogators’ behavior and alleged false promises/lies were neither egregious nor coercive to support Lux’s claim that her free will had been overborne by the police interrogators’ tactics. This ruling, unlike others discussed previously in this chapter, is limited in its application of case law. The court takes a more succinct interpretation that relies on examining the “facts” of the case, which support the court’s assessment that the suspect did not invoke counsel, even equivocally. This ruling does not adopt a broad interpretation of Miranda invocations, as many prior rulings, and reiterated the notion that not all statements that include the word lawyer (the “talismanic” effect argument) are invocations for counsel. The court also stresses the lawful use of interrogation tactics that include lying to the suspect: a not uncommon practice in police interrogation and often considered legal if the suspect provides a voluntary waiver of rights.

Cannady v. Dugger (1991), a highly cited Eleventh Circuit ruling, considers invocations for counsel that include hedges, such as “think,” and the discursive context in which this type of invocation occurs. In Cannady, the appellant (Cannady) made incriminating statements after he was read his Miranda rights and questioned on several occasions. At one of his initial interrogations, the police interrogator asked Cannady whether he killed the victim. Cannady responded at some point after the question: “I think I should call my lawyer” (p. 754). The interrogator continued questioning Cannady and asked him “if he wanted ‘to talk about it’” (p. 754). At this point, Cannady broke down and provided a confession of the crime. Judge Dubina ruled that Cannady’s statement to the police officer, “I think I should call my lawyer,” was an unequivocal request for counsel, and the police officer violated Cannady’s Miranda rights when he continued the interrogation by asking “would you like to talk about it?” and did not attempt to clarify the request for counsel (yet, “pushed the phone toward Cannady and waited for him to make the call”; p. 755). The court argues that the police interrogator’s actions were in violation of Edwards and Miranda. The context and the police interrogator’s verbal and nonverbal actions in response to the defendant’s request for counsel were essential to the court’s ruling and reversal of this case. Of note, it is unclear given the (yet) lack of definition of what constitutes an unequivocal invocation for counsel, whether Cannady’s invocation for counsel would have been ruled unequivocal, if the police officer had behaved differently and had not pushed the phone toward the appellant.

The context and discursive exchange, particularly the police interrogators’ use of clarifications, was also highlighted in United States v. De La Jara (1992). Here, the Ninth Circuit reviewed whether de la Jara’s statement to the police interrogator should have been suppressed after he invoked the right to counsel: “debo yo llamar a mi abogado.” The district court denied the court’s motion on the grounds that de la Jara’s invocation was “ambiguous and equivocal.” Furthermore, the district court argued that the police interrogators attempted to clarify the “equivocal” request and de la Jara waived his right to counsel.

The De La Jara case raises an important question: How significant is context in determining the unequivocalness of a suspect’s invocation for counsel? Although this case involves an L2 speaker of English – these types of cases will be discussed further in a separate section of the chapter – it is important to include De La Jara in this section due to the court’s “common sense” approach at determining the most probable intent of the appellant’s invocation for counsel.

In the review of the case, the Chief Judge of the Ninth Circuit, Judge Poole, notes that “de la Jara testified that he had requested to speak to his attorney several times, saying ‘I should have my lawyer present.’ He also testified that he had told his secretary, Rose Alvarez, to call his attorney, but that she said she was not able to do so” (p. 751). Alvarez corroborated the appellant’s version of events at the suppression hearing. The police report on the day of de la Jara’s arrest also provides context to de la Jara’s claims of requesting counsel. One of the arresting police officers stated that he heard (through a door that was slightly ajar) de la Jara say in Spanish that he wanted to call his attorney. The officer informed another agent “that it sounded like de la Jara was invoking his rights because he just asked to call his attorney. The agent asked me if that’s what I heard and I said ‘yes’” (p. 751).

The circuit court’s review also looked at de la Jara’s request formulated in Spanish, noting the complications the Spanish language interpretation raises:

The judge notes that the different interpretations carry varying legal connotations, from a clear invocation for counsel (“Can I call my lawyer?” or “I should call my lawyer”) to a question that may not rise to an equivocal invocation (“Should I call my lawyer?”). As with prior cases reviewed by the Ninth Circuit and the Court, the court opts for a “common sense” application (see Barrett), arguing that: “We conclude that de la Jara’s words understood as ordinary people would understand them, and as Officer Perez did understand them, clearly invoked the right to counsel” (p. 752). The court argues that de la Jara’s statements should have been suppressed, per Miranda and Edwards. The court also ruled that the introduction of de la Jara’s statements at trial was not harmless error: “the appellant may not have been convicted of any of the counts absent the evidence” (p. 752). The court ruled to reverse his conviction.

In United States v. March (1993), the Tenth Circuit took a similar approach to De La Jara, but the outcome of the review was very different. Here, the court examined the matter of equivocalness, specifically emphasizing the difference between questions that (may) ask for counsel versus those that ask for information. The court also reviewed the importance of police officers requesting clarification and the harmlessness of introducing evidence that is the result of an equivocal–ambiguous request for counsel.

In March, the defendant (March) was read his Miranda rights and he signed the waiver of rights form. The interrogators (FBI agents) asked several background questions. The defendant was questioned for about twenty to thirty minutes, and he provided incriminating statements. Shortly after, he requested an attorney. One of the agents provided the following testimony, illustrated in Excerpt 2.3, regarding March’s request for counsel:

The defendant argues that the question he asked the agents (“Do you think I need an attorney?”) constituted a request for counsel. The circuit court, in reviewing the district court’s denial of the defendant’s suppression motion, opined:

The circuit court’s perspective on this case shows a departure from a common previously held view of understanding invocations for counsel (as “ordinary people would”), albeit with little guidance from the Court, to a narrower interpretation that attempts to establish a “minimum” standard for a suspect’s expression of a desire for counsel. This is further argued in the court’s assessment that the defendant’s question “Do you think I need an attorney?” does not rise to the level of clarity that other past cases have argued, as for example Cannady, Robinson, and Smith II. The court, hence, makes a distinction between the defendant’s question as an equivocal request seeking advice from the police officers and a request that clearly invokes counsel. Here the court states:

The arguments laid out in March are significant, because they put forth a change in the court’s perspective as to how broadly invocations for counsel should be interpreted. Reminiscent of past rulings, however, the court hedges:

In this case, the court rules that the police interrogators did their due diligence when the defendant asked an ambiguous request for counsel by ceasing the interrogation and asking clarification. The court ruled that the introduction of the defendant’s confession was harmless error, a stance often taken in later rulings in our corpus, and the district court properly denied the defendant’s motion to suppress his legally obtained confession.

The Fourth Circuit case, Poyner v. Murray (1992), is another example of the shift between broad interpretations of suspects’ equivocal or ambiguous requests for counsel and the police interrogators’ (seeming) “due diligence” in asking clarification when these types of requests are made. Poyner also reiterates the view of some in the judiciary that suspects who have been through the criminal justice system “know better” when it comes to knowingly and intelligently waiving counsel. The role of the police’s mindset during custodial interrogation is also an important component of this ruling.

Poyner was read his Miranda rights prior to being questioned at the police station. Poyner indicated understanding of the rights. One of the police interrogators informed Poyner about the information they had about his involvement in the crime of which he was accused, to which Poyner responded: “Didn’t you say I have a right to an attorney?” The police interrogator responded: “Yes, you do, that is correct.” The police interrogators begin to rise from their seats after what they state was Poyner’s intent to invoke counsel. As the police interrogators began to rise from their seats and cease the interrogation, Poyner said “Let me tell you about the car” (p. 1409). The interrogation proceeded and Poyner provided incriminating statements about the abduction and murder of which he was accused.

Poyner contends that his statement “Didn’t you tell me I had the right to an attorney?” constituted a request for counsel per Miranda and Edwards and, hence, all interrogation should have ceased. In reviewing Poyner’s case de novo (or “anew”) and his claim that he invoked counsel, the circuit court argues: “It appears that neither the Supreme Court nor this court yet has had occasion to consider the effect of a suspect’s statement that, like Poyner’s, mentions the Miranda right to counsel without suggesting any desire to speak with an attorney at that moment” (p. 1411). The court points to United States v. Jardina (1984) where the court ruled that once a suspect makes an unequivocal request for counsel, interrogation must cease, except for clarifying questions regarding the desire for counsel, if needed. The court adds that in Poyner’s case, as in Jardina, “the suspect’s statement was not an equivocal request for an attorney; rather, it was not a request at all. Thus, continued interrogation did not violate the suspect’s Miranda rights. In so holding the court stated that [t]he word ‘attorney’ has no talismanic qualities” (p. 1411). The court further opines that Poyner’s statement was less asserting than Jardina’s.

The court also addressed a final argument that Poyner contends is supportive of his request for counsel claim. Poyner stated that the fact that the officers rose from their seats is indicative that they wanted to terminate the interrogation. The court does not support Poyner’s contention:

The court added that Poyner’s statement after his “nonrequest” for counsel does not violate Edwards, as Poyner argues. The court stated that Poyner reinitiated talk with the police officers and waived his rights freely and voluntarily. The court ruled that the lower, district, court did not err in denying Poyner’s petition and affirmed the ruling.

Poyner’s case puts forth an important notion that is carried over to future rulings. The notion that a police officer’s response to a suspect’s request for counsel, including the use of bodily actions (see Reference Johnson, Mason and RockJohnson, 2020), during custodial interrogation is irrelevant in the analysis of such invocation or, as in the Poyner case, merely erring on the side of excessive caution. This ruling, as previous ones, shows the gradual erosion of the bright-line rules of Miranda and Edwards, extending to the limitation of the broad interpretation of (undefined) equivocal–ambiguous invocations for counsel. Poyner also furthers the notion that some invocations for counsel are not even ambiguous/equivocal. They are simply not invocations at all, and as such do not require any effort to clarify from the police interrogators.

The Court tackles the invocation for counsel and clarification discussion once more in the seminal case of Davis v. United States (1994). This case erodes the last vestiges of broad or “ordinary” interpretations of invocations for counsel, and it removes the need for police clarification altogether. Parting from Davis, police interrogators are not required to clarify an invocation for counsel they deem ambiguous or equivocal.

In Davis, the petitioner (Davis), who was a member of the United States Navy, initially waived his Miranda rights when he was interrogated by Naval Investigative Service agents about the murder of a sailor. About an hour and a half into the interview, Davis said, “Maybe I should talk to a lawyer” (p. 466). The agents followed up by asking Davis if he was asking for a lawyer to which Davis replied that he was not. The interrogators took a short break and then reread Davis his rights and the interrogation continued for another hour. At this point, Davis asked to have a lawyer present: “I think I want a lawyer before I say anything else” (p. 466). The interrogation ended. The military court denied Davis’s motion to suppress statements made during the interrogation on the grounds that Davis’s mention of a lawyer was not a request for counsel. The Court of Military Appeals affirmed.

Davis is the first time the Court considered the degree of clarity needed for a custodial suspect to invoke counsel after a Miranda waiver. The Court’s ruling narrowed the scope in which a suspect can reasonably invoke legal counsel. In this ruling, invocations for counsel must be performed in a manner that a reasonable police officer deems unequivocal before they are given any legal effect. The ruling, as past ones, does not define what a reasonable police officer would understand as an unequivocal invocation for counsel. The Court stated simply that if a police officer believes that the suspect may not be invoking the right to counsel, the officer does not need to cease questioning. Justice O’Connor delivered the majority opinion for the Court:

O’Connor adds:

Justice O’Connor also reminds the Court that Miranda rejected the assumption “that each police station must have a ‘station house lawyer’ present at all times to advise prisoners” (p. 460). She reiterates that police officers must inform the suspects of their right to counsel and that they may not be questioned after such invocation is made, as long as the invocation is clear. If the suspect is “indecisive in his request for counsel” (p. 460), the police officers may not need to cease questioning.

In an attempt to address the limitations inherent in Davis, Justice Souter, who delivered the Davis concurrence, advocated for the clarification standard whenever the degree of clarity of a suspect’s invocation is at question. Souter argued that interrogators have the legal obligation to clarify a custodial suspect’s ambiguous statement if the statement could be interpreted as a desire to consult with legal counsel. This standard, according to Justice Souter, would ensure a suspect’s choice for counsel as well as address possible misunderstandings that may arise during custodial interrogation:

Souter adds:

Souter’s attempt to include real life (linguistic challenges) to the application of the law reflects some of the justices’ concerns for good police practices during custodial interrogation: “In the abstract, nothing may seem more clear than a ‘clear statement’ rule, but in police stations and trial courts the question, ‘how clear is clear?’ is not so readily answered. When a suspect says ‘uh, yeah, I’d like to do that’ after being told he has a right to a lawyer, has he ‘clearly asserted’ his right?” Souter also warns that the primary arbiters of “clarity” will be the police officers, who will be in a position of advantage, particularly “when an inculpatory statement has been obtained as a result of an unrecorded, incommunicado interrogation” (footnote 7, p. 475).

Souter’s opinion about the limitations inherent in the “threshold-of-clarity” standard, coupled with the lack of a definition for what constitutes an unequivocal invocation for counsel in Davis, opened the door for state and federal courts to utilize and apply, at their discretion, the clarification standard to post-waiver invocations. Notable (recent) cases in which the clarification standard was invoked include: United States v. Rodriguez (2008), United States v. Fry (2009), and State v. Blackburn (2009). In these cases, the courts ruled that the burden of obtaining clarification before proceeding with an interrogation lies with the interrogating officer(s) and not with the suspect(s). These rulings, however, are not in line with Justice O’Connor’s Davis opinion:

O’Connor’s majority opinion has legal standing. Justice Souter’s concurring recommendations do not. They are merely suggestions for good police interrogation practices.

The Davis ruling becomes the standard for courts to review and rule on the (un)equivocalness of a suspect’s invocation for counsel and the police’s behavior when suspects invoke counsel. The key points to take from this ruling include: (1) the treatment/analysis of invocations for counsel; (2) the clarification standard; and (3) the matter of “initiation” addressed in Edwards. Prior to Davis, the courts ruled that invocations for counsel should be interpreted as “ordinary people would,” and in cases in which the request for counsel may be equivocal allow for a broad interpretation. The police’s use of clarification was also encouraged with these types of invocations. In Davis, the courts leave it up to the police to determine whether the request for counsel is equivocal “as a reasonable police officer would understand it,” while also stating that police do not need to clarify equivocal or ambiguous invocations for counsel, albeit it may be good practice. The Court, as with prior rulings, does not define what constitutes an equivocal or ambiguous invocation for counsel. It simply leaves it as a judgment call of the police. The use of clarifications, also not defined, are encouraged, rather than expected, in the concurrent ruling. This is a recommendation, not a requirement or expectation, aimed at protecting the Miranda and Edwards “bright-line rules.”

In addition, the Davis ruling does not address how suspects know that they have invoked council unequivocally during a police interrogation. There are no provisions in the ruling (or other rulings for that matter) for suspects to be informed of the status of their invocations for counsel. This matter is highlighted in a prior Court ruling, whose majority opinion was also delivered by Justice O’Connor:

Of note, the dissenting opinion in Moran v. Burbine, delivered by Justice Stevens with Justice Brennan and Justice Marshall joining, shows the Court’s, then and still, differing views on Miranda, society’s interest in interrogating suspects, and suspects’ ability to make an informed invocation for counsel:

The debate in Davis raises important ethical and legal concerns. That is, if the police are not legally obligated to tell suspects they have or, alternatively, have not invoked counsel unequivocally, suspects may (and do) continue to talk to police (or as argued in Edwards “initiate talks with police”), after invoking counsel. Moreover, suspects who may be unaware of the effectiveness of their invocations may subsequently waive their rights and provide a statement, even if they were not overtly “tricked” or “coerced” into doing so:

The next section proceeds to examine a representative selection of federal court rulings post-Davis (1994–2021) that show the judges’ application of this case. The cases, which are part of the corpus, explore the legal standing of a suspect’s invocation for counsel as well as the effect of Davis on vulnerable populations (e.g., juveniles, persons with intellectual and/or cognitive disabilities) and L2 speakers of English. These populations and their potential inability to speak assertively due to being overwhelmed by the uncertainty of the situation are raised in Justice Souter’s concurring opinion, and other pre- and post-Davis rulings with concern.

2.5 Post-Davis to Present: 1994–2021

Cases in this section will explore the impact of the Davis ruling on judges’ assessment of a suspect’s invocation for counsel. These cases, which are representative of the corpus, will serve to illustrate the treatment of an invocation for counsel and its effect on other aspects of a case, such as the voluntariness of a suspect’s statement, the use of clarifications and follow-ups by police during interrogation, and the harmless error doctrine. In addition, a few of the cases will feature members of vulnerable populations (e.g., juveniles and L2 speakers of English) in order to assess how judges have incorporated these variables into their rulings on Miranda invocations for counsel.