Question: Does a suspect invoke his right to counsel when he writes “no” in response to the written question, “Having these rights in mind, do you wish to talk to us now?”
Quick Answer: Yes, the written response of “no” to the question regarding his desire to speak with police articulates his desire to have counsel present.
Facts: Tennessee peace officers believed Anthony Scott was involved in a string of robberies. The police took Scott to the Memphis Robbery Bureau, where officers read Scott his Miranda rights and gave him an Advice of Rights form. Below the warning, the form included two questions and space where Scott replied: “Q: Do you understand each of these rights I’ve explained to you? A: Yes. Q: Having these rights in mind, do you wish to talk to us now? A: No.” At that point, the officers ceased questioning.
Why this case is important: The court found that Scott invoked his right to counsel by indicating he did not wish to talk with police. If a suspect’s only reference to an attorney is ambiguous, then the peace officer may continue questioning. Here, the court found a reasonable officer would conclude Scott was invoking his right to counsel. The Advice of Rights form uses the phrase “these rights” in reference to all rights articulated in a Miranda warning, including the right to counsel. This court found the rights were invoked by a “no” answer.
Keep in mind: Peace officers should focus on a suspect’s response if they ask written or verbal questions such as, “Having these rights in mind, do you wish to talk to us now?” Invoking the right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. If a suspect expressed his desire to have counsel present and peace officers initiate further communication in the absence of counsel, the suspect’s statements are presumed involuntary and therefore inadmissible in court.