Do I have the right to an attorney when being questioned by the police?
The short answer is YES, however there is always a BUT. You have the right to a lawyer when being questioned by the police, BUT your request must be made clear so that there is no doubt you do want a lawyer. If your request is not clear, you may not have properly invoked the request for counsel and any statement you make can and will be used against you.
Here are some examples of requests that are clear:
- “I invoke my right to counsel under the Sixth Amendment to the United States Constitution.”
- “I want my lawyer.”
- “I demand my attorney right now.”
- “I’m not talking till my lawyer gets here.”
Here are some examples of requests that are not clear.
- “Do you think having a lawyer here is a good idea?”
- “Shouldn’t my attorney be here?”
- “I’ve got a lawyer, but I can’t remember his name or telephone number.”
It is very likely that a court will find that these not clear examples requesting an attorney will not hold up as a request and the court will allow any statements made to the police outside of the presence of your lawyer in as evidence against you in a trial or grand jury proceeding.
Once a clear request for counsel has been made, all questioning must stop!
The request for an attorney doesn’t necessarily have to be made to the police, it can be made to a third party and upheld as valid as long as the request is made in the presence of police. For instance, the right is considered invoked if you are being dragged away after being arrested and you yell out to your friend, “Johnny, I want my lawyer, call him now!”
Once the right to counsel has been invoked, it cannot be revoked until a lawyer is present. Meaning, that a statement like “I want a lawyer. I’m just joking, I don’t want a lawyer.” invokes your right to counsel and you must have an attorney prior to being able to revoke the right. However if you are not in custody, you can revoke the right to counsel without an attorney present. It’s important to know whether you are in custody or free to leave. Although an upcoming post will explore issues with custody, a good way to find out is to simply ask, “Am I free to leave?” if the answer is “Yes.” then you should leave right away, if the answer is “No.” or any other answer aside from “Yes.” then you should invoke your right to counsel right immediately.
Children under the age of 18 who have not requested an attorney but have been denied contact with a person who could invoke their right to counsel, such as denying the child’s request to call their parents or lying to the parents to deny access to the child, are protected from having any incriminating statement used against them.
If you want to learn more about Michael A. Huerta, Attorney and Counselor at Law, or Huerta PLLC, a New York Law Firm, visit http://HuertaPLLC.com