If you are being questioned by the police and want a lawyer, you need to make a clear statement indicating you want a lawyer before your right to counsel is triggered.
Criminal defense lawyers are dismayed at the dismantling of constitutional rights in recent years. We were reminded of our frequent heartache in the recent case of State v. Hammett Marette, where the court held that a defendant had not properly invoked her right to counsel (i.e. her right to not be interrogated without a lawyer present).1 Specifically, the Court held that a suspect who was being questioned did not unambiguously invoke her right to counsel when she said “I want some advice; I want to get up out of here, sir” and “[w]hy shouldn’t I have a lawyer at this time?”
This ruling reflects the depressingly strict standard for any accused in Ms. Hammett-Marette’s situation:
If a suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him. The officers also have no obligation to ask clarifying questions to ascertain if the suspect is attempting to invoke his right to counsel.2
The court provides an exhaustive review of specific phrases that people have used to request counsel, all of which were found not to be enough to trigger the right:
“Do I need an attorney?”
“Well, can I talk to my lawyer then if there is something wrong like that? Do I need one or something?”
“How do I go about getting an attorney when I can’t afford one?”
“Should I wait to have counseling before I answer any more?”
“[I]f you want to ask me questions I’ll do my best to answer them, but if it gets too close I have to shut down. I have to get an attorney.”
“I would prefer a lawyer but I want to talk to you now.”
“Can I have a public defender?”
“Can I have an attorney?”
“Well, can I have a lawyer present?”3
Let me repeat: none of these statements are unequivocal enough to trigger your right to counsel. This means that an accused who uses one of the above phrases during questioning by the police would not trigger his right to have questioning cease until a lawyer is present to advise him.
So what should you do if you are being questioned by the police? State firmly and respectfully that you will not be making any statements without counsel present. Do not ask any questions, just make that statement respectfully.
Next, do not make any further statements. If you do, it could invalidate your prior request to have questioning cease. Make the statement respectfully, repeat it if you must, but beyond that do not make any statements.
And if you are looking for an attorney to call, the attorneys at Rittgers Rittgers & Nakajima are available 24/7.
1 State v. Hammett-Marette, 2nd Dist. Montgomery No. 28157, 2019-Ohio-394, ¶ 17
2 Id. at ¶ 17 (quotation omitted)
3 Id. at ¶ 19-20 (citations omitted)