Confessions and the Fifth Amendment Right to Counsel
In 1966, the United States Supreme Court addressed the issue of confessions and the right to counsel under the Fifth Amendment to the United States Constitution in Miranda v. Arizona, 384 U.S. 436 (1966).
The prosecution may not use statements, whether exculpatory or inculpatory, that stem from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of their freedom of action in any significant way, unless the prosecution demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination. See Miranda v. Arizona, 384 U.S. 436, at 444-491 (1966).
The atmosphere and environment of law enforcement interrogation today is intimidating and undermines the privilege against self-incrimination. Unless adequate preventive measures are taken by law enforcement to dispel the compulsion to speak in custodial surroundings, no statement obtained from the defendant can truly be the product of the defendant’s free choice. See Miranda, at 445-458.
The privilege against self-incrimination under the Fifth Amendment of the United States Constitution, has a long and expansive historical development, and it is at the core of our adversary system and guarantees to the individual the "right to remain silent unless he chooses to speak in the unfettered exercise of his own will," during a period of custodial interrogation as well as in the courts or during the course of other official investigations. See Miranda, at 458-465.
The following procedures to safeguard the Fifth Amendment privilege must be observed: The person in custody must, before interrogation, be clearly informed that they have the right to remain silent, and that anything they say will be used against them in court; the person in custody must be clearly informed that they have the right to consult with a lawyer and to have the lawyer with them during interrogation, and that, if the person in custody is indigent, a lawyer will be appointed to represent them. See Miranda, at 467-473.
Under the Fifth Amendment, when a person is taken into custody, and when the person is questioned by the police, the person has a right to an attorney. This practice by the police is called interrogation.
If the person in custody indicates, before or during interrogation, that they wish to remain silent, the interrogation must cease. If the person in custody states that they want an attorney, the questioning must cease until an attorney is present. See Miranda, at 473-474. If the police fail to stop the interrogation after an attorney is demanded, any subsequent statement made by the person may be inadmissible at a trial. When a person demands an attorney during questioning, the police cannot ask any further questions of the person. The police also cannot make any further statements or comments that might elicit a response from the person. When a person demands an attorney during interrogation, the police must stop the interrogation, even if the person is not able to obtain an attorney.
Where interrogation is conducted without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to prove that the defendant knowingly and intelligently waived their right to counsel. See Miranda, at 475.
Where the individual answers some questions during in custody interrogation he has not waived his privilege and may invoke his right to remain silent thereafter. See Miranda, at 475-476.
Whether a person has actually invoked his or her right to counsel during questioning requires a statement from the person that expresses the desire for the assistance of an attorney. Ambiguous or equivocal statements about a right to counsel do not constitute the invocation of the right to counsel. Simply mentioning the word "attorney" does not always mean that the person has requested an attorney. Also, if the person asks about sentencing or what the outcome of his or her case will be, such questions do not necessarily invoke that person's right to counsel. The police are not required to ask the person to clarify his or her ambiguous statements. The request for an attorney must be clear and unambiguous.
The right to counsel during questioning is not invoked when a person requests counsel before being taken into custody, and before interrogation occurs. Also, if a person requests counsel in the future, that person is not invoking the right to counsel during questioning. One must specifically request counsel while they are in custody and while that person is being interrogated by the police.
Only a person who is being questioned by the police may invoke their right to counsel. Someone claiming to be the person's attorney may not invoke the right to counsel. An attorney can invoke the right only if the attorney represents the person, if the right is invoked in the presence of the person, and the person does not contradict the attorney's invocation of the right.
The police do not have to inform a person that an attorney is trying to contact that person. The police are only required to stop questioning when the person demands an attorney.
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