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Miranda lives

The right to counsel established by Miranda v. Arizona has been undercut by more recent rulings that invocation of the right must be clear, unambiguous and unequivocal.

Because a certain amount of ambiguity and equivocation, not to mention muddy thinking, is frequently present in any interrogation by police, one would infer from some of those rulings that there isn’t much left of Miranda. Two cases from the Supreme Court of Virginia today show that some of it remains.

In the first case, Sare Zektaw, was talkative with investigators before and after he responded to an investigator’s statement that he should tell his story so that police would know whether to believe him or a woman who contended that Zektaw had sexually assaulted her. “Right, and I’d really like to talk to a lawyer because this – oh my God, oh, my Jesus, why?” Zektaw said.

The trial judge and the Virginia Court of Appeals found a lack of clarity and plenty of ambiguity and equivocation in the statement.

The Supreme Court saw it differently. “Under an objective test, a reasonable police officer would have understood Zektaw was requesting counsel … ,” Justice Donald W. Lemons wrote for the court. “Plainly and simply, the interrogation should have ceased.”

In the second case, Commonwealth v. Ferguson, the defendant invoked not only his right to counsel but the advice of his mother.

“Nah, I want a lawyer, you know what I’m saying?” the defendant said even before he was read his rights. After they were read to him, he said, “Uh, My Moma said that if I get in any more trouble I need a lawyer.”

The trial judge found that the defendant had invoked his right to counsel but had reinitiated the conversation in which he incriminated himself. The commonwealth appealed after the court of appeals disagreed and reversed the conviction.

The commonwealth conceded before the Supreme Court that the defendant had invoked his right to counsel but insisted that he had reinitiated the conversation.

“One cannot imagine a clearer invocation of the right to counsel,” Lemons wrote. “But police did not honor this invocation. Instead, [an investigator] alternately threatened and attempted to cajole Ferguson into cooperation. …

“The person subject to interrogation does not have to repeat his invocation of the right to counsel – once is enough if it is clear, unambiguous and unequivocal as it is in this case.”

By Alan Cooper

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