Good to know you want to law school and took Crim Pro, but either it was a long time ago or you just didn't pay attention.

From Berghuis v. Thompkins, the case decided yesterday.

In the context of invoking the Miranda right to counsel, the Court in Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), held that a suspect must do so “unambiguously.” If an accused makes a statement concerning the right to counsel “that is ambiguous or equivocal” or makes no statement, the police are not required to end the interrogation, or ask questions to clarify whether the accused wants to invoke his or her Miranda rights (Obviously a slip opinion, but you can easily find it)

Notice the reference to Davis v. US, and the need for unambiguous statements BEFORE counsel will be granted. The Court would now put the invocation of the right to remain silent on par with the right to counsel. Thus, the right to remain silent will carry with it the obstacles placed on the right to an attorney.

Davis 114 S.Ct. 2350, 2355. "But if a suspect makes a reference to an attorney that is 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, our precedents do not require the cessation of questioning."

The problem with this standard is it leaves officers a LOT of wiggle room on what might be ambiguous. If I merely reference a right to an attorney, or say "I think I might want an attorney," officers are not required to stop or tell me that I am invoking my right incorrectly. Hell, for all I know they are simply ignoring my request and keeping me confined, away from an attorney and away from constitutional protections.


Further from Berghuis. "If the accused makes an “ambiguous or equivocal” statement or no statement, the police are not required to end the interrogation, or ask questions to clarify the accused's intent... The unambiguous invocation requirement results in an objective inquiry that “avoid[s] difficulties of proof and ... provide[s] guidance to officers” on how to proceed in the face of ambiguity. . Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning."

Where as before the right was omnipresent, now it only appears if invoked. Basically, your silence on your right to be silent acts as a waiver. The obvious evidentiary and practical implication are tremendous.

Finally, I am not sure if you failed Criminal Procedure, or you are simply a moron, but you should reseach before you speak. If you are an attorney, I feel bad for you clients, because you open your mouth before you think or read. If you want to be educated again, I would be happy to have you as opposing counsel. Just because you made it through law school and got a bar number does not mean you are a competent attorney on every topic. Most of us learn that a year out of law school, but it seems your intellectual growth was retarded after your classes ended.