Invocation of the right to counsel
Issues (Composed by On Point)
1. Does the Wisconsin Constitution provide more protection than Maryland v. Shatzer, ___U.S. ___, 130 S. Ct. 1213 (2010) (holding that, even if a defendant has invoked his or her right to counsel, law enforcement may give the Miranda warnings again so long as the defendant has been released from custody for at least fourteen days)?
2. Did the defendant invoke his right to counsel unequivocally when he asked “can I have my attorney present for this?”?
3. If the defendant’s invocation was equivocal, does it make a difference whether the equivocal statement was made before Miranda warnings were given as opposed to afterwards?
As discussed in more detail in our post on the certification, this is a significant and interesting case, presenting novel facts, an issue on which other jurisdictions have split, and a question of whether the state constitution provides more protection than the federal constitution under this situation. Beyond impact on the law governing invocation of the right to counsel during interrogation, the court’s answer to the issue concerning the state constitution might bear on whether Wisconsin’s rule prohibiting comment on pre-arrest silence survives a potentially adverse decision of the U.S. Supreme Court in the pending case of Salinas v. Texas (discussed here).