Invocations

by Charles Gillingham

As covered in other recent training bulletins, the U.S. Supreme Court in U.S. v. Davis (1994) 512 U.S. 452 and Berghuis v. Thompkins (2010) 130 S.Ct. 2250, a suspect must unambiguously invoke the right to remain silent or the right to an attorney before interrogation must cease. Often, officers will be faced with the situation where a suspect will make an ambiguous reference to an attorney or the right to remain silent. In that instance, officers may inquire to figure out the suspect's true meaning. The following are some examples of ambiguous invocations that were found not to be invocations. (Not all are direct quotes but are taken from published cases.)

• I was told to talk to an attorney but I will talk to you now.
• I want to have an attorney here. I will talk to you until I think I need one. I don't need one now.
• I would like to know how long it will take to get an attorney. I would like to try to get one to get the process started. The officer asked whether the suspect wanted an attorney right then, the suspect said no but that he was sure he would want one during the interview.

Asking questions about attorneys are not invocations.

• How long will it take to get a lawyer?
• What time will I see a lawyer?
• Do I get a lawyer?
• You said I might have a lawyer?
• I guess I need one?
• Do you think I need a lawyer?
• Should I be talking to you or do I need a lawyer?


Uncertainty also does not count.

• I don't know if I need one.
• I don't know if I should talk without a lawyer.
• Maybe I should talk to a lawyer.
• I think it would be a good idea for me to get an attorney.
• I guess you better get me a lawyer.
• I think I would like to talk to a lawyer.


Remember also that an attorney cannot invoke for her client, the client must invoke - personally. Also, the suspect telling you he has a lawyer is not an invocation. Also, as covered in a previous training bulletin, the Supreme Court held in Montejo v. Louisiana (2009) 556 U.S. 778, just because a suspect has representation and may have appeared in court does not bar potential questioning.

If you are unclear about the intention of the suspect due to the ambiguity or confused nature of what they said in response to whether they wish to speak, follow up. Your follow up cannot be a ruse to keep talking after an unambiguous invocation but is valid when the suspect is unclear.

You may avoid the reference to an attorney or silence by the suspect by using an implied waiver. The Supreme Court, also in Berghuis v. Thompkins (2010) 130 S.Ct. 2250, reaffirmed that implied waivers are valid once a suspect has been informed and validly waived her rights.

If the suspect does invoke, give him or her your business card with the invitation to speak in the future. Do not pressure the suspect to call you but provide the opportunity, because if the suspect reinitiates contact with you, you may question that suspect after getting a valid Miranda waiver.