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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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Comments (3)

Displaying 1 - 3 of 3

Charles Nichols / CNRepor @ 2/14/2011 1:21 AM

Police officers should note that the author wrote a "One Minute Brief" on Open Carry #2008-22 which he informs me is still current.

In his brief Devallis Rutledge states:
"If the serial number of the weapon comes into plain view during inspection, it may be noted and run against data bases. Arizona v. Hicks (1987) 480 US 321, 324."

Once a police officer removes a handgun from it holster to perform a PC 12031(e) inspection (a search not sanctioned by the US Supreme Court) he has "disturbed" the item and, under Hicks, is prevented from running the serial number without a warrant or probable cause.

The author also states, in the same brief, "The incidental detention of the armed individual justifies a demand for ID, allowing age verification and a data-base check for information about any disqualification to possess firearms. Hiibel v. Sixth Judicial
District (2004) 542 US 177, 187."

The detention is not "incidental." If the person has asked if he is free to leave, it is an involuntary detention. If a police officer has drawn his weapon, it is an involuntary detention. There are a number of other circumstances which might make the detention involuntary. Regardless, Hiibel requires that a person only give his name and only then if he is in a state which has a Constitutional "Stop and ID" state, which California does not; something the High Court noted in Hiibel.

Police officers should be aware that there is no "Good Faith" exception or defense in a Federal Civil Rights lawsuit. Judges and prosecutors are virtually immune, law enforcement officers are not.

Trying to "game" the system might not get you into trouble with the District Attorney's office but all it takes is one person knowledgeable
of his rights to end your career. - Arizona v Hicks - Hiibel v Sixth

Michael Kennedy @ 2/21/2011 10:40 AM

It is a shame, and certainly contra-constitutional [if the Framers really mean anything these days], for there to be so much effort expended on ways to make, force, trick people to be witnesses against themselves. It is certainly an indictment of modern police work that cops and their DA chums concede that cops can't solve crimes without the quasi-inquisitional focus of concocting ways to make suspects into the best evidence of their wrongs.

Filipe Maia @ 7/3/2011 12:06 PM

A good way to earn the trust of the community that you are sworn to protect is to subvert justice. This guy was clearly going to jail and posed no threat to society. It was a bad judgement call to attempt to trick him into giving up his rights knowing that his attorney would turn around and use this to dismiss the confession and possibly even have the case thrown out. Police have to be sensitive to people's rights and respect the constitution.

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