Clear, unambiguous and unequivocal. There you have it. As of June 4, 2009, this is the standard by which your request for an attorney is measured. Zektaw v. Commonwealth.
Mr. Zektaw was charged with rape, attempted sodomy, abduction, and assault and batter. Shortly after Mr. Zektaw waived his Miranda rights, he said, “Right, and I’d really like to talk to a lawyer because this – oh my God, oh, my Jesus, why?” The cops continued to interrogate Mr. Zektaw, even after he said this. He attempted to have the statements he made to the police tossed out so they would not be used as evidence against him in his trial. At trial, the Circuit Court decided that Mr. Zektaw did not make a “clear and unequivocal” request for a lawyer. Mr. Zektaw was found guilty of rape, abduction, and assault and battery and determined Zektaw’s punishment to be eight years for the rape conviction, one year for the abduction conviction, and one year and a $2500 fine for the assault and battery conviction. Mr. Zektaw appealed to the Court of Appeals.
The right to have counsel present during a custodial interrogation is an axiom of American law expressed in Miranda v. Arizona , 384 U.S. 436 (1966) and cases that interpret Miranda. It’s this simple: If the individual states that he wants an attorney, the interrogation must cease until an attorney is present…If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. 384 U.S. at 474-75.
In Arizona v. Roberson , 486 U.S. 675 (1988), the United States Supreme Court stated that it violates the holding in Miranda for authorities, at their instance, to begin an interrogation anew when an accused is in custody and when he has clearly asserted his right to counsel. 451 U.S. at 485. Only when the accused initiates further communication, exchanges, or conversations with the police and any conversation with the cops continue.
The invocation of the right to counsel must be clear, unambiguous, and unequivocal. In Davis v. United States , 512 U.S. 452, 459 (1994), the Supreme Court held that a statement either is an assertion of the right to counsel or it is not. An accused must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, the cops are not required to cease questioning the suspect.
So, was Mr. Zektaw’s statement “Right, and I’d really like to talk to a lawyer because this – oh my God, oh, my Jesus, why?” a clear, unambiguous, and unequivocal invocation of counsel? The Virginia Supreme Court says YES. An objective, “reasonable police officer” would have recognized that Mr. Zektaw just made a clear, unambiguous, unequivocal request for counsel.
Here are examples of what has been deemed NOT a clear, unambiguous, unequivocal request for counsel:
“Can I have someone else present too, I mean just for my safety, like a lawyer like y’all just said?”
“Can I speak to my lawyer? I can’t even talk to [a] lawyer before I make any kinds of comments or anything?”
“Do you think I need an attorney here?”
“You did say I could have an attorney if I wanted one?”
“Didn’t you say I have the right to an attorney?”
“(I) would like to have somebody else in here because I may say something I don’t even know what I am saying, and it might . . . jam me up”
“I’ll be honest with you, I’m scared to say anything without talking to a lawyer.”
Here are examples of what has been deemed to be a clear, unambiguous, unequivocal request for counsel:
“You have a right to consult with a lawyer and to have a lawyer present with you when you’re being questioned. Do you understand that?’ ” and the defendant responded, ” ‘Uh, yeah. I’d like to do that.”
“I want an attorney before making a deal.”
So what’s the lesson here? If you want a lawyer present when you are in police custody and being questioned, don’t ask if you think you need a lawyer, DEMAND to have a lawyer. Don’t begin talking again after you DEMAND to have a lawyer. DEMAND that you will invoke your Fifth Amendment right to counsel and you will, most respectfully, remain silent until your attorney arrives.