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Ambiguous Assertion of Rights — Silence

State v. Richard Allen Hassel, 2005 WI App 80
For Hassel: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding1Hassel’s custodial statement, “I don’t know if I should talk to you” was ambiguous and therefore triggered no duty to terminate the interrogation, ¶¶16-19.

The court of appeals purported to follow Davis v. United States, 512 U.S. 452 (1994), which holds that the police have no duty to clarify an ambiguous assertion of rights made after clearly waiving them. The court simply did not acknowledge this crucial matter of timing (Hassel made his ambiguous assertion before he ever waived any rights, which makes the distinction pertinent to his case). The majority of lower courts to rule on the issue have concluded that “the ‘unambiguous or unequivocal request’ rule of Davis is limited to the post-waiver scenario,” U.S. v. Rodriguez, 9th Cir No. 07-10217, 3/10/08, fn. 6. Given that the court of appeals simply did not acknowledge let alone resolve this dispute, the issue should remain viable. However, the split among lower courts makes the issue quite cert-worthy.

Issue/Holding2precustodial, prearrest assertion of right to silence has no constitutional significance, and therefore doesn’t bar questioning, ¶¶13-15; and, because such an assertion does not amount to a “prior invocation [of rights] with which the police should have been concerned,” it gives no meaning to an ambiguous assertion of rights during subsequent custodial interrogation. ¶¶16-21. (In dicta, the court goes on to say that the police nonetheless scrupulously honored his rights, ¶20 n. 2.)

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