Confessions – Fifth Amendment Right to Counsel

The United States Supreme Court held in 1966 in the case of Miranda v. Arizona that a person has a right to an attorney during questioning by the police. The basis for this right is the privilege against self-incrimination under the Fifth Amendment of the United States Constitution.

Under the Fifth Amendment, when a person is taken into custody and when the person is being interrogated by the police, the person has a right to an attorney. The interrogation must immediately cease when a person demands an attorney. The failure of the police to stop the interrogation makes any subsequent statement by the person 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 questioning, the police must cease the questioning, even if the person is not able to obtain an attorney.

Whether a person has actually invoked his or her right to counsel during questioning requires a statement from the person that expresses a desire for the assistance of counsel. If the person mentions the word “attorney,” it does not necessarily mean that the person has requested an attorney. Also, if the person asks about sentencing, it is not necessarily an invocation of that person’s right to counsel. Ambiguous or equivocal statements about a right to counsel do not constitute the invocation of the right to counsel. The police are not required to ask the person to clarify his or her ambiguous statements.

When a person requests counsel prior to being in custody and prior to interrogation, he or she is not invoking the right to counsel during questioning. Also, if the person requests counsel in the future, he or she is not invoking the right to counsel during questioning. The person must specifically request counsel while he or she is in custody and while he or she is being interrogated by the police.

Only a person who is being questioned by the police may invoke his or her right to counsel. A person claiming to be the person’s attorney may not invoke the right to counsel. An attorney can invoke the right only if he or she 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 are not required to inform a person that an attorney is attempting to contact that person. The police are only required to cease questioning when the person demands an attorney.

Copyright 2014 LexisNexis, a division of Reed Elsevier Inc.