Be Explicit: Invoking Your Right to An Attorney

The right to have counsel is a fundamental constitutional right available to all criminal defendants and criminal suspects. While it has long been recognized in courts throughout the country, over the years the requirements for invoking your right to counsel have become more and more complex – creating new challenges for defendants.

Your Miranda Rights

Under the Fifth Amendment of the U.S. Constitution, all individuals have a constitutional right not to incriminate themselves. As part of protecting this right, courts have concluded that individuals who are in police custody must be given their Miranda warnings. These warnings include:

  • You have the right to remain silent.
  • Anything you say can be used against you.
  • You have the right to an attorney during police questioning and at future proceedings.
  • If you cannot afford an attorney, one will be provided to you.
  • If you want an attorney and request one, police may not continue questioning you until you have counsel.

The last of these rights is known as invoking your right to counsel, and it has been subject to much scrutiny over the years. While courts want to protect the right to counsel for criminal defendants, they also want to minimize the impact on important criminal investigations. For this reason, courts require that you request counsel unequivocally.

What Counts As Unequivocally?

Invoking your right to counsel unequivocally means doing so clearly and concisely. Police are not required to ask if you want a lawyer, or to stop their questioning to give you time to get a lawyer. Instead, you must affirmatively and deliberately ask for one. And you must do so in a very clear manner.

A recent case illustrates this point. In Louisiana, courts recently ruled that where a man told police “give me a lawyer dog,” this was not sufficient to invoke the right to counsel because police were not sure if the man wanted a lawyer, or a dog. As questionable as that outcome may seem, it illustrates the critical eye that courts take toward requests for counsel.

In order to protect your rights, it is important that you clearly state that you would like an attorney, without qualifiers or exceptions. Your request will only be held up in court if it is clear and unambiguous.

What to Do If Your Request Is Not Respected?

Despite the importance of respecting constitutional rights, some police are so eager to obtain information that they try to continue to force an individual to talk – even after he or she has requested counsel. This is improper questioning, and your answers cannot be used against you in court.

To protect your rights, however, it is important that you remain clear and committed to your request for counsel even in the face of continued police scrutiny. If the police continue to question you, make sure to repeat your demand for an attorney and state that you will not answer any further questions until your attorney has arrived. If you back down in the face of police pressure, it may ultimately compromise your request.

Trusted Iowa Criminal Defense Attorney Jonathan D. Schmidt Protecting Your Constitutional Rights

If you have been the victim of a police interrogation, or are facing pending criminal charges and believe that you were improperly questioned, it is important that you talk with a knowledgeable criminal defense attorney as soon as possible. Depending on what happened in the interrogation room, you may be able to get evidence against you excluded from trial. For more information, contact criminal law attorney Jonathan D. Schmidt online or at (319) 423-3031.