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Custodial Assertion of Rights – Assertion of Right to Counsel (Edwards Rule), made pre-Miranda warnings

State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256
For Hambly: Martha K. Askins, SPD, Madison Appellate

Issue: Whether a suspect’s in-custody invocation of right to counsel before administration of Miranda warnings triggers the Edwards bar on interrogation absent the suspect’s reinitiating communication with the police.


¶23      The State argues that in the present case when the defendant asked for an attorney he was not subject to custodial interrogation. The State concludes that the defendant was in custody but was not being interrogated, that the defendant’s request for an attorney was thus anticipatory, and that the defendant did not effectively invoke his Fifth Amendment Miranda right to counsel.…

¶24      … We are persuaded by the case law that the State’s position is incorrect and do not adopt the State’s position. …

¶29      Under LaGrone and other cases a suspect may effectively invoke his or her Fifth Amendment Miranda right to counsel by requesting counsel when a reasonable person in the suspect’s position would believe that interrogation is imminent. These cases impose a temporal limit on a request for counsel as well as the requirement that the request for counsel must relate to assistance of counsel during interrogation.

¶30      Another possible standard for Miranda and Edwards purposes is that a suspect may effectively invoke his or her Fifth Amendment Miranda right to counsel by requesting counsel any time the suspect is in custody, even before Miranda warnings or the onset of questioning. [28] State v. Collins, 122 Wis. 2d 320, 363 N.W.2d 229 (Ct. App. 1984), may be read as adopting such a standard. [29]

¶43      Because the defendant was in custody and had a reasonable belief that interrogation was imminent or impending, his request for counsel was an effective invocation of his Fifth Amendment Miranda right to counsel under both the “anytime in custody” standard and the “imminent or impending interrogation” temporal standard.

¶44      The present case illustrates “the type of coercive atmosphere that generates the need for application of the Edwards rule.”[43] After the defendant effectively invoked his Fifth Amendment Miranda right to counsel, police interrogation, unless initiated by the defendant, would violate Edwards v. Arizona, 451 U.S. 477 (1981).

The court splits 3-3 on whether an in-custody, pre-Miranda warning defendant is entitled to benefit of the Edwards rule whenever making a request for counsel (as opposed to only when interrogation is impending or imminent, ¶¶101-02). Resolution of that question isn’t necessary on these facts, because either way Hambly met the test. Note, though, the court’s construction of Collins as holding that no “temporal standard” applies. As a result you can argue that, unless and until further clarification is forthcoming from the supreme court, Collins controls this issue.


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