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Ambiguous Assertion of Rights — Counsel

State v. Edward Terrell Jennings, 2002 WI 44, on certification
For Jennings: Margaret A. Maroney, SPD, Madison Appellate

Issue: Whether the police may continue to interrogate a suspect who has ambiguously asserted rights, — in this instance, “I think maybe I need to talk to a lawyer.”


¶36. Applying Davis, we conclude that Jennings’ statement to Detective Kreitzmann, “I think maybe I need to talk to a lawyer,” was substantially equivalent to Davis’s statement, “Maybe I should talk to a lawyer.” As such, it was “ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.” Davis, 512 U.S. at 459. Therefore, Jennings’ statement was insufficient to invoke his right to counsel under the Fifth and Fourteenth Amendments, and the officers were not required to cease questioning him. Nor were they required to clarify his statement. Accordingly, there is no federal constitutional impediment to the admission of Jennings’ statement to Detective Anderson.

Davis v. United States, 512 U.S. 452 (1994) held to overrule Wentela v. State, 95 Wis. 2d 283, 290 N.W.2d 313 (1980) and State v. Walkowiak, 183 Wis. 2d 478, 486-87, 515 N.W.2d 863 (1994); court declines to impose a more stringent state constitutional requirement. ¶¶37-42. But, as the dissent points out, ¶¶51-53, Davis is dicta on the issue of whether the police must attempt to clarify — as opposed to simply ceasing interrogation — an ambiguous assertion of rights; thus, thought must be given to raising this issue for purposes of federal review, taking into account the straitened nature of such review.

However, there is authority for the idea that “maybe I should talk to an attorney by the name of …” is an unambiguous assertion of the right to counsel, Abela v. Martin, 6th Cir. No. 00-2430, 8/27/04 (court stressing that naming the specific attorney and handing the officer the attorney’s business card critically distinguished Davis). Also see U.S. v. Lee, 7th Cir No. 03-4140, 6/28/05 (court strongly suggests, though doesn’t actually decide, that “Can I have a lawyer?” is invocation of right to counsel).

Note, however, large split of authority as to whether “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.

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