Vanderbilt Law Review

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The fifth amendment to the United States Constitution guarantees to all persons the privilege against compelled self-incrimination. In Miranda v. Arizona, the United States Supreme Court interpreted the fifth amendment to require a specified set of procedural safeguards that law enforcement officers must follow to protect adequately each individual's fifth amendment rights. The Miranda safeguards require that prior to an accused's custodial interrogation, government officials must inform the accused that he has the right to remain silent; that any of his statements maybe used against him in a subsequent criminal action; that he has the right to confer with counsel; and that if he cannot afford to hire counsel, the court will appoint an attorney to represent him."The government may not use a confession obtained in violation of these Miranda safeguards to prove the guilt of a defendant.

An accused's right to counsel at pretrial criminal proceedings protects that individual from providing a compelled or involuntary confession. The right to counsel ensures that the government affords assistance to an accused in dealing with the criminal process and also protects an accused from inadvertent self-incrimination. An accused's right to have an attorney present during any questioning is absolute. Courts must exclude any statement given by an accused during custodial interrogation unless the interrogating officers advise the accused, prior to questioning, of his right to have counsel present during questioning, and the accused voluntarily, knowingly, and intelligently waives this right. Furthermore,Miranda holds that if an accused "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning."" Thus, even if an accused initially waives his right and agrees to speak with law enforcement officials, he may cease the questioning at any time by invoking his right to counsel. When an accused invokes his constitutional right to counsel, he also effectively exercises his right to remain silent, thus requiring the interrogation to cease until the government affords him the opportunity to confer with an attorney.

This Note focuses on determining when an accused has invoked his right to counsel. Because Miranda's "in any manner"language does not indicate what degree of clarity is required for a defendant to invoke his right to counsel, the judiciary has struggled to create a standard to determine when an accused's equivocal reference to an attorney constitutes an invocation of the right to counsel. The Supreme Court has not addressed specifically the is-sue of whether an equivocal reference to an attorney is an invocation of the right to counsel.' Recently, in Smith v. Illinois the Supreme Court explicitly declined to resolve the issue of equivocal references to an attorney.15 Thus, the conflicting standards for determining the consequences of an ambiguous reference to counsel remain among the various courts.