NCJ Number
166928
Journal
New England Journal on Criminal and Civil Confinement Volume: 22 Issue: 1 Dated: (Winter 1996) Pages: 29-71
Date Published
1996
Length
43 pages
Annotation
The U.S. Supreme Court's holding in Davis v. United States (1994), requiring a suspect to unambiguously request counsel before law enforcement officers are required to cease the interrogation, is inconsistent with the purpose of Miranda v. Arizona, and with the traditionally broad interpretation of a suspect's request for counsel.
Abstract
The "requisite level of clarity" standard that the Court adopted in "Davis" deprives suspects, who desire to have counsel present but fail to articulate themselves clearly, of their right against self-incrimination. In addition, police officers are more likely to engage in coercive conduct under the "Davis" standard by ignoring a statement that "might" be a request for counsel, in hope of eliciting an incriminating response. The per se approach, which was rejected by the Court in "Davis" is also inconsistent with the intent of "Miranda," which requires police officers to cease immediately all questioning once a suspect makes any reference to an attorney. This hampers effective investigatory activity and precludes the suspect from choosing to waive his/her rights. The clarification approach is the best approach in dealing with ambiguous requests for counsel. By requiring police officers to clarify a suspect's ambiguous statement, the suspect's privilege against self-incrimination will be safeguarded, while simultaneously providing effective police interrogation. Furthermore, the burden of clarifying the ambiguity, although initially on the interrogating officer, will ultimately shift to the suspect. 312 footnotes