then said, "Well, this is your decision, it's a decision you're going to have
After a slight pause, the agent then added: "If you didn't do
anything wrong, Ed, you don't need one right?" After another pause, the agent
said, "Well?" The suspect then confessed.
d. The court held that this was an equivocal request for counsel. When
there is such a statement by the accused, it "is appropriate for the
authorities to inquire whether the suspect is electing to speak... reasonable
attempts at clarification are appropriate."
Here, however, the questioner
wasn't attempting to clarify; rather, he "was attempting to dissuade the
appellant from the proper exercise of his right to counsel." Where a suspect's
response to a rights advisement is unclear, the questioner's "clarification"
may not be an argument "about whether having counsel would be in the suspect's
best interest or not. Nor may it incorporate a presumption by the interrogator
to tell the suspect what counsel's advice to him would be if he were present.
Such measures are foreign to the purpose of clarification, which is not to
persuade but (is) to discern."
e. Here, then, the questioner tried to persuade the suspect not to seek
counsel. This was wrong, and the conviction was reversed.
When the suspect has requested counsel, "all questioning must cease."
The request "cannot be dissipated by continued police questioning."
waiver of the suspect's rights "cannot be established by showing only that (he)
responded to further police-initiated custodian interrogation." In conclusion,
then, the court ruled that a suspect's "subsequent responses to continued
interrogation cannot be used to cast retrospective doubt on the clarity of the
initial request itself."
f. Look at the facts in U.S. v. Hartsock, 14 MJ 837 (ACMR, 1982). The
suspect told the CID agent questioning him that "he wanted to consult with a
lawyer before being questioned further."
The investigator did not, however,
immediately terminate the questioning. Instead, he did the following:
"I advised him that there had been a number of people... apprehended
and... that after he talked to an attorney, he might want to get
back... (to) the prosecutor of the case... and as I put it to him
'cop a plea' or 'make a deal'... as far as his testimony goes."
g. The CID agent also pointed out that "if someone else offered the
prosecutor a deal before he did, that person's offer would probably be accepted
and no others would be needed."
The suspect then made incriminating
The court concluded that the suspect had, indeed, clearly
The investigator's statements, however, were designed to
obtain an incriminating response from the suspect and were designed to induce
him NOT to seek counsel. It was the functional equivalent of interrogation,
coming after the suspect had clearly asked for a lawyer.
conduct of the investigator was improper and the conviction was overturned on