LEGAL BRIEF: THE DAVIS RULE

What should you do when a suspect who waived his Miranda rights says he might want a lawyer? This is the question that the US Supreme Court recently ruled on.

WHILE I AM PRESENTING THE FACTS ACCORDING TO THE US SUPREME COURT RULING, THIS IN NO WAY IS MEANT AS A GUIDE IN A FLORIDA STATE COURT! ALWAYS REFER TO YOUR DEPARTMENT'S LEGAL BUREAU, OR THE SA's OFFICE FOR PARTICULAR RULINGS. THIS IS MEANT FOR THE FURTHERANCE OF THE INVESTIGATORS LEGAL KNOWLEDGE!

A fairly common scenario, you obtain a valid Miranda waiver from a suspect in custody and begin interrogation. Part way through your questioning, the suspect begins to feel uneasy about going forward and says something about remaining silent or talking to a lawyer. What then? Must you stop interrogating? Do you need to clarify his wishes, or can you keep talking? The US Supreme Court gave the answers in Davis v. U.S. The Supreme Court acknowledged its earlier ruling in Edwards v. Arizona that a statement obtained through police custodial interrogation will not be admitted to prove guilt at trial if it resulted from questioning that continued after the suspect's request for an attorney. But where it is not necessarily clear that a suspect who has already waived his rights is asking for an attorney, the court declined to place burden of resolving the ambiguity on the police. If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. Rather, the suspect must unambiguously request counsel. He must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Finding that the statement, "Maybe I should talk to a lawyer," was not an unequivocal, unambiguous invocation of the right to counsel, the court upheld the admission of Davis's statements and unanimously affirmed his conviction and sentence. The five-member majority held that it is not necessary for officers to stop an interrogation when the suspect makes an ambiguous reference to invoking his rights.
There are no magic words that a suspect has to use to constitute a clear and unambiguous invocation of Miranda. Certainly a statement such as "No more questions", or "I want a lawyer" are unambiguous. Wishy-washy qualifications such as "I think" or "Maybe I should" would normally be ambiguous enough to come within the Davis rule that there is no need to clarify the suspect's wishes and no need to stop questioning. It is further noted that the Davis ruling only applies where the suspect initially gave a clear, unambiguous waiver when given his Miranda rights. Once he has waived, the burden shifts to him to clearly, unambiguously assert his rights if he wants questioning to cease. For example, if the suspect responds to the Miranda admonishment by saying something like, "I think maybe I should get a lawyer," you should not proceed without clarifying whether or not you have an invocation of counsel. It's only after a clear waiver has been obtained that the Davis rule kicks in. NOTE: Not all states follow the US Supreme Court rulings on exclusionary issues. States are free to interpret their own constitutions as providing greater protection to criminals than the US Constitution provides. Where do you suppose Florida falls?