ANSWER: "Uh, she told me to get my lawyer.
She said you guys would railroad
me."
QUESTION: "Do you understand that as I gave it to you, Steve?"
ANSWER: "Yeah."
QUESTION: "If you do want to talk to me, I must advise you that whatever you
say can and will be used against you in court. Do you understand that?"
ANSWER: "Yeah."
QUESTION: "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?"
ANSWER: Uh, yeah.
I'd like to do that."
QUESTION: "Okay."
Instead of terminating the questioning at this point, however, the police
"proceeded to finish reading Smith his Miranda rights and then pressed him
again to answer their questions." It went as follows:
QUESTION: "If you want a lawyer and you're unable to pay for one, a lawyer will
be appointed to represent you free of cost, do you understand that?"
ANSWER: "Okay."
QUESTION: "Do you wish to talk to me at this time without a lawyer being
present?"
ANSWER: "Yeah and no, uh, I don't know what's what really."
QUESTION: "Well, you either have (to agree) to talk to me this time without a
lawyer being present, and if you do agree to talk to me without a lawyer being
present you can stop me at any time you want to."
ANSWER: "All right.
I'll talk to you then."
b. On appeal, the Supreme Court restated the basic rule that once the
accused has "expressed his desire to deal with the police only through
counsel," he is not subject to further interrogation. The first issue, then,
is "whether the accused actually invoked his right to counsel."
The court
acknowledged that sometimes a suspect's "asserted request for counsel may be
ambiguous or equivocal."
Here, however, the suspect's statement, "uh, yeah.
I'd like to do that," was clear and unambiguous.
The only way to find any
uncertainty or ambiguity was by looking at the suspect's SUBSEQUENT responses
to continued police questioning.
c. In U.S. v. Whitehead, 26 MJ 613 (ACMR 1988), the accused (after being
advised of his rights) replied: "Maybe I should get a lawyer." The CID agent
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