• Alex Raby

Invoking the Right to Counsel: Conflicts of Speech, Status, and Recognition


“Rights are not rationed . . . A right is a claim that must be granted, regardless of cost or supply.” Lawrence M. Friedman,

Two Faces of Law,

1984 Wisconsin Law Review 13, 19 (1984)

In many jurisdictions across the United States invoking the right to counsel is not as simple as it may seem. In Miranda v. Arizona the Supreme Court introduced a rule requiring that any person subject to custodial interrogation must be informed of their constitutional rights. Miranda v. Arizona, 384 U.S. 436, 444-445 (1966). This includes the right to counsel as embraced by the Fifth Amendment. In order to be legally effective, an invocation of the right to counsel must be “clear and unequivocal.” Edwards v. Arizona, 451 U.S. 477, 485 (1981), and Davis v. United States, 512 U.S. 452, 462 (1994). This may sound simple enough. However, even a most cursory review of the case law in this area reveals that the “clear and unequivocal” standard is far from being a low bar. In many jurisdictions, merely referring to an attorney is inadequate. Suggesting that you “might need a lawyer,” saying that you “think” you need a lawyer, and asking “if” you need a lawyer, are just some examples of speech that does not meet the “clear and unequivocal” bar in many jurisdictions.

Some readers may remember the case of Warren Demesme that received much attention in the media last year. I am, of course, referring to the suspect who asked for a “lawyer, dawg” while under police interrogation. Or, as the Louisiana Supreme Court seems to have understood, was literally asking for a “lawyer-dog.”

For those who are unfamiliar with the case, here is a brief recap: In October 2015, Demesme was in police custody in New Orleans, Louisiana. In response to questioning by two New Orleans police officers Demesme stated, “[t]his is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.” In spite of his reference to an attorney, Demesme’s invocation was not found to be “clear and unequivocal.” Questioning continued, and Demesme eventually provided an admission of guilt.

Orleans Parish Public Defender, Derwyn D. Bunton, took on Demesme’s case and filed to have Demesme’s admission suppressed. Bunton argued that under the Edwards-Davis holdings Demesme had invoked the right to counsel; therefore, all questioning should have stopped. Subsequently, Bunton went on, the admission of guilt that Demesme later provided was inadmissible as evidence against him. However, in a highly publicized and somewhat controversial ruling, Justice Scott J. Crichton of the Louisiana Supreme Court held that “the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’” did not “constitute an invocation of counsel” that warranted terminating the interview.

But, didn’t Demesme ask for a lawyer? First, to understand what happened here, we must address the jurisdictional split among the courts regarding what amounts to a clear and unequivocal invocation. Second, we must understand that our chosen mode of expression is typically context dependent, which is to say that in conversation we often imply meaning to our words, as opposed to speaking in direct statements (think, “I’m completely broke,” versus “I declare bankruptcy!”). See Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police Interrogation, 103 Yale L.J. 259, 263-71 (1993) (explaining that under Grice’s theory of conversational implicature, speech and comprehension are understood by their relevance to social context and accepted convention), and Pintip Hompluem Dunn, How Judges Overrule: Speech Act Theory and the Doctrine of Stare Decisis, 113 Yale L.J. 493, 496-97 (2003) (discussing J. L. Austin’s speech act theory and the conditions required for speech acts to maintain their performative force). More to the point, linguists have observed that people who lack status or power within society are far more likely to speak in both “indirect” and “deferential” terms. It is precisely these forms of expression (the implicative, indirect, and deferential) that many courts fail to recognize as clear and unequivocal when it comes to the Fifth Amendment right to counsel. It is argued herein that failure to recognize these different forms of linguistic expression denies this constitutional right to those who lack higher status within our society.

Bad Law or a Bad Decision?

First of all, it is important to note that the Louisiana Supreme Court ruling on this case is in line with established precedent. It is not an anomalous ruling. To be clear, the issue here is with the law itself, and not the ruling in Demesme’s case. Contrary to popular belief, and as suggested above, Demesme’s appeal was not denied because he asked for a “lawyer-dog.” A fair appraisal of the invocation may have been to note that in Louisiana conditional statements have previously been found ineffective for invocation purposes. State v. Deen, 953 So. 2d 1057, 1059 (2007) (holding that a conditional statement “cannot plausibly be understood as a clear invocation of the right to cut off questioning in all respects”). Wherefore, continuing the interview would not have been improper; and moreover, Demesme’s appeal may have been properly denied. However, Judge Crichton did not provide this rationale. In fact, he provided no rationale. Chrichton only saw fit to uphold the lower court’s decision because in his view, Demesme’s declaration was not unambiguous under Edwards and Davis. For those who are curious, here is Crichton’s two paragraph opinion in its entirety:

I agree with the Court's decision to deny the defendant's writ application and write separately to spotlight the very important constitutional issue regarding the invocation of counsel during a law enforcement interview. The defendant voluntarily agreed to be interviewed twice regarding his alleged sexual misconduct with minors. At both interviews detectives advised the defendant of his Miranda rights and the defendant stated he understood and waived those rights. Nonetheless, the defendant argues he invoked his right to counsel. And the basis for this comes from the second interview, where I believe the defendant ambiguously referenced a lawyer—prefacing that statement with “if y'all, this is how I feel, if y'all think I did it, I know that I didn't do it so why don't you just give me a lawyer dog cause this is not what's up.”

As this Court has written, “[i]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking his right to counsel, the cessation of questioning is not required.” State v. Payne, 2001-3196, p. 10 (La. 12/4/02), 833 So.2d 927, 935 (citations omitted and emphasis in original); see also Davis v. United States, 512 U.S. 452, 462, 114 S. Ct. 2350, 2357, 129 L.Ed.2d 362 (1994) (agreeing with the lower courts' conclusion that the statement “[m]aybe I should talk to a lawyer” is not an unambiguous request for a lawyer). In my view, the defendant's ambiguous and equivocal reference to a “lawyer dog” does not constitute an invocation of counsel that warrants termination of the interview and does not violate Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L.Ed.2d 378 (1981).

Louisiana v. Demesme, Supreme court of Louisiana No. 2017-KK-0954 (2017).

The problem is one of objectivity. Or rather, the fact that a court may use the guise of objectivity (as provided in Davis) to apply a literal analysis to the words uttered. Whereby, any notion of conversational implicature, social context, and jointly understood conventions can be thrown out the window.

Under Davis v, United States, the determination as to whether an invocation was clear and unequivocal is to be an objective inquiry, such that “a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." As you may have noticed, this provides no additional guidance on how to determine whether an invocation was, in fact, clear and unequivocal. It merely substitutes one abstract determination for another. Moreover, as is demonstrated by Crichton’s opinion, the “objective test” relied on under this doctrine stretches the very meaning of objectivity to its limits. More often than not the test used is not an objective one, but a literal one. Wherein, the question the court asks is not what “a reasonable police officer” would “understand” given the circumstances, but what the words used by the subject literally mean. Here are some examples:

The courts listed here have been reticent to find that invocations couched in “deferential,” “hedging,” or “indirect” language are legally effective. Interpretations such as this are both harmful to society and unnecessary in contemporary jurisprudence. At worst, these decisions are reflective of a prevailing disdain within many courts towards expressions made in the common tongue. At best, they are demonstrative of a rigid and unnecessary interpretation of Edwards and Davis.

In contrast, other jurisdictions have held that any reference to an attorney is a per se invocation of the right to counsel. Meaning that any statement that can reasonably be construed as an expression of a desire to seek counsel is legally effective. For example, in State v. Elmore, 500 A.2d 1089, 1092 (N.J. Super. Ct. App. Div. 1985) the court held that ambiguous requests are to be construed in the light “most favorable to [the] defendant”. Moreover, in Ochoa v. State, the court held that Miranda is to be construed “literally,” such that “where a defendant indicates in any way that he desires to invoke his right to counsel, interrogation must cease.” 573 S.W.2d 796, 800 (Tex. Crim. App. 1978); People v. Superior Court, 542 P.2d 1390, 1394 (Cal. 1975), cert. denied, 429 U.S. 816 (1976). Finally, “[m]aybe I should have an attorney” was held to be a sufficient invocation in the 6th Circuit. Maglio v. Jago, 580 F.2d 202, 203, 205 (6th Cir. 1978).

Linguistic Expression as a Cultural Barrier

Speaking in terms that some courts ultimately interpret as “unambiguous” or “unequivocal” is more likely to affect those of lower status in our society. As Janet Ainsworth explains, ordinary conversation relies on both implication and indirect speech as an effective way to communicate in a non-literal manner. Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police Interrogation, 103 Yale L.J. 259, 263-270 (1993). In addition, individuals who lack status or power within society are far more likely to speak in “indirect” or “deferential” terms (using “tentative grammatical forms,” “lexical hedges” and “tag questions” most often). 103 Yale L.J. 259, *282. These tentative and indirect modes of speech have been referred to as the “female register” by Robin Lakoff, a feminist scholar. 103 Yale L.J. 259, *282. However, William O’Barr has posited that the trademark characteristics of the female register are, in fact, more closely correlated to low socio-economic status than womanhood. 103 Yale L.J. 259, *283-85. Thus, O’Barr argues, it is not a female register at all, but a language of the powerless. 103 Yale L.J. 259, *285. Virtually all researchers agree that this form of speech, whether female or not, tends to be adopted most in situations where the speaker is at a relative disadvantage in power to the listener. 103 Yale L.J. 259, *285.

This is where one’s chosen register of speech becomes relevant to custodial interrogation and invocations of the right to counsel. As Ainsworth notes, those who fall into a category prone to adopting the female register are consequently “less apt to use the mode of expression that will give them the highest degree of constitutional protection.” 103 Yale L.J. 259, *285. Perhaps more troubling still, is the fact that this exact sentiment was expressed by the Supreme Court in the Davis opinion itself. Wherein the Court stated: “[w]e recognize that requiring a clear assertion of the right to counsel might disadvantage some suspects who -- because of fear, intimidation, lack of linguistic skills, or a variety of other reasons -- will not clearly articulate their right to counsel although they actually want to have a lawyer present.” Davis v. United States, 512 U.S. 452, 460 (1994) (emphasis added). Notwithstanding this rather troubling observation, the Supreme Court went on to dispel its concerns by holding that understanding of the Miranda warnings themselves are an adequate remedy to this issue. As a result of the Supreme Courts failure to value the significance of the linguistic issue they identified in Davis, any suspect who falls into the trap of indirect, implicative, or deferential speech will simultaneously fall into the category of “might be invoking the right to counsel.” Wherefore, courts that hold strictly to the clear and unequivocal standard are bound to disregard the self-evident purpose of the suspect’s speech and find that no invocation was made.

Conclusion

Ultimately, the question before us is simple. In the words of Richard Sherwin, “must those who speak in a different voice be disenfranchised by an officially imposed silence?" I think not.

  1. Rigid interpretations of Davis and Edwards are not necessary, as demonstrated by jurisdictions in which references to attorneys have been liberally construed as per se invocations of the right to counsel.

  2. Female register or powerless speech is heavily relied on by suspects under custodial interrogation. The power disparity inherent to custodial interrogation makes adoption of this kind of speech even more likely.

  3. The test employed by many jurisdictions is not the objective test it purports to be. It is a test of literal meaning. This is not only an unnecessary mode of interpretation but is antithesis to the Edwards-Davis holdings.

  4. In light of the “register” typically adopted by persons under custodial interrogation, adoption of the “per se” standard is not an unwarranted policy consideration. Complete adoption of the “per se” standard will provide greater protection for constitutional rights and fairer adjudications across the board.


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