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Departments : Point of Law

'Don't Talk To My Client!'

When is it OK to question a suspect who has a lawyer?

February 07, 2011  |  by Devallis Rutledge - Also by this author

Next, Burbine argued that the interrogation violated his Sixth Amendment right to counsel because he had formed an attorney-client relationship that police failed to honor. The court also rejected this contention. Said the court,

"The suggestion that the existence of an attorney-client relationship itself triggers the protections of the Sixth Amendment misconceives the underlying purposes of the right to counsel.

"The Sixth Amendment's intended function is not to wrap a protective cloak around the attorney-client relationship for its own sake.

"That the existence of an attorney-client relationship could somehow independently trigger the Sixth Amendment right to counsel is a position we reject."

Subsequent Rulings

The Burbine rules were supplemented in later cases, on other points. When a Texas murder defendant argued that his attorney had invoked his Sixth Amendment rights for him (even though he himself had waived and talked), the Supreme Court said that an attorney may not vicariously assert a client's rights because "The Sixth Amendment right to counsel is personal to the defendant." (Texas v. Cobb)

Therefore, if a lawyer contacts you and says that he or she is invoking a client's rights under Miranda or the Sixth Amendment, this notice has no constitutional significance. What matters is whether the client agrees to talk.

In another case, the Supreme Court held that even after a suspect is arrested and has been arraigned and has counsel appointed, he can still be approached by police, in the absence of counsel and without any notice to counsel, to see if he is willing to discuss the case. The court said that a Miranda waiver would then enable officers to take an admissible statement (assuming no previous Miranda invocation during a period of continuous custody).

Said the court, "The defendant may waive the Sixth Amendment right, whether or not he is already represented by counsel; the decision to waive need not itself be counseled. And when a defendant is read his Miranda rights and agrees to waive those rights, that typically does the trick." (Montejo v. Louisiana)

Still later, the court ruled in Berghuis v. Thompkins that the waiver need not be express, but may be implied by the suspect's receipt of Miranda warnings, followed by his acknowledging that he understands his rights and then making a statement or answering questions.

This means that the waiver discussed in such cases as Burbine and Montejo could be obtained by simply admonishing the suspect per Miranda, ascertaining that he understands, and then asking an engaging question that elicits the suspect's response. The waiver would then be established, and additional questioning could take place. (Prior Miranda invocations during continuous custody should be "scrupulously honored.")

Other Considerations

Although neither Miranda nor the Sixth Amendment right to counsel prohibits police interrogation of a willing suspect merely because his attorney has informed police his or her client is not to be questioned, some jurisdictions may have statutory rules restricting such contacts. Officers should consult local prosecutors or legal advisers to determine the existence and application of any such statutes.

In many jurisdictions, statutes prohibit eavesdropping upon confidential communications between a prisoner and his attorney. Also, if police bypass defense counsel and attempt to negotiate a represented defendant's pending charges in exchange for his cooperation against a more serious offender, the Due Process Clause may be implicated. (U.S. v. Morrison; U.S. v. Lopez) To avoid a due process violation, such efforts should generally be made only with prosecutorial consultation.

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 12 books, including "Investigative Constitutional Law."

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