Introduction

Questioning After a Counsel Request

Introduction

A suspect sits in a police station, has been read his rights, and says he wants a lawyer. From that moment the officers face a series of decisions about whether, when, and how they may speak with him again, and each answer can determine whether a later confession ever reaches a jury. The starting command comes from Miranda v. Arizona: if a person in custody states that he wants an attorney, the interrogation must cease until an attorney is present, and he must then have the chance to confer with the lawyer and to have the lawyer present during any later questioning.¹ That command governs custodial interrogation, which Miranda defines as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.²

A request for counsel carries this much weight because of how Miranda treats custody itself. The Court concluded that custodial questioning exerts inherent pressure on a suspect, so statements taken in that setting are presumed to be compelled unless the suspect was warned of his rights and then validly waived them.³ A suspect who asks for a lawyer has told the police he does not intend to deal with them alone, and the lawyer's presence is the device that keeps what he says afterward from being a product of that same pressure. The difficulty is that custody does not end when the request is made. The suspect stays in the cell, the pressure continues, and officers have an obvious temptation to return and try again, which means the law needs a rule for the return visit. Edwards v. Arizona supplies it: a suspect who has invoked his right to counsel cannot be shown to have waived it merely by showing that he answered further police-initiated interrogation, and he is not subject to such interrogation until counsel has been made available to him, unless he himself initiates further communication with the police.⁴ Minnick v. Mississippi then fixes what "made available" requires, holding that police may not reinitiate custodial interrogation without counsel present even if the suspect has already consulted with an attorney.⁵ Courts must enforce these rules as constitutional law, because the Court has held that Miranda is of constitutional origin and has described the bar on police-initiated interrogation after a counsel request as a Fifth Amendment rule.⁶

The question this chapter answers is therefore a narrow one: when police come back to a suspect who asked for a lawyer, have they reinitiated interrogation without counsel? The answer has only a few exits. Officers may reengage when counsel is present, when the suspect himself reopens the conversation, or when the suspect has been released from Miranda custody and at least fourteen days have passed.⁷ The chapter works through that structure in order, beginning with what counts as an invocation, then the Edwards bar and Minnick's reading of it, then the accused-initiated gap, then how far the bar travels, and finally what follows when police violate it. Every one of those steps assumes that the suspect actually invoked his right to counsel during custodial interrogation, so the first task is to decide what a valid invocation looks like.