Difference Between Remaining Silent and Requesting Counsel?

Enough of our clients have asked us what is the difference between remaining silent and requesting counsel that we decided to simply write an article that answers this question in the most thorough manner we can muster, but in concise form.
The Gist of This Article:  Requesting counsel, i.e. telling the police that you want your attorney present, is supposed to bar all questioning on any matter whereas invoking one’s right to remain silent does not stop police from asking questions about an arguably separate matter.
A suspect’s assertion of the right to remain silent only does not prevent the police from later asking the suspect questions about a separate case, as long as the police “scrupulously honor” the suspect’s wish not to discuss the original case by immediately terminating the questioning.  Michigan v. Mosley (1975) 423 U.S. 96, 104, 96 S. Ct. 321; People v. DeLeon (1994) 22 Cal.App.4th 1265, 1269.

In contrast, as soon as a suspect asserts the right to counsel, all questioning must cease until an attorney is present.  Minnick v. Mississippi (1990) 498 U.S. 146, 111 S. Ct. 486; Edwards v. Arizona (1981) 451 U.S. 477, 484, 101 S. Ct. 1880; Miranda v. Arizona (1966) 384 U.S. 436, 473, 86 S. Ct. 1602; People v. Ireland (1969) 70 Cal.2d 522, 537.

Once a suspect invokes his or her right to an attorney, any subsequent statements to police are presumed to be involuntary and inadmissible if obtained without counsel present.  Edwards, at 451.  This “Edwards Rule” is not offense specific, as some police think.  It even applies if a police officer, unaware that the suspect previously requested counsel, starts questioning and the suspect provides answers.  Arizona v. Roberson (1988) 486 U.S. 675, at 687, 108 S. Ct. 2093.

Once someone invokes the right to counsel, all police questioning is barred regardless of why the suspect is in custody, regardless of why the police want to ask him questions and regardless of the topic of the questioning.  Roberson, supra; People v. Underwood (1986) 181 Cal.App.3d 1223, 1231.
 
However, if the suspect voluntarily initiates discussion about the case, or there has been a break in custody of at least 14 days, then the questioning is not considered involuntary and the statements inadmissible.  Edwards, supra, at 485; Maryland v. Shatzer (2010) 559 U.S. 98, 110, 130 S. Ct. 1213.

Re-admonishing the suspect will not produce evidence that is admissible, but if the suspect does then answer questions the answers are admissible only for impeachment purposes if the statement is found voluntary.  Oregon v. Elstad (1985) 470 U.S. 298, 105 S. Ct. 1285.  The purpose of the is rule is to protect the suspect from badgering by the police, i.e. wearing down the defendant by repeatedly attempting to get him or her to answer questions by repeatedly giving him or her the Miranda warnings.  See also People v. Boyer (1989) 48 Cal.3d 247, 270, overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830 n1 (egregious example of continued questioning by overbearing police officers despite invocation of Miranda rights).

It is an academic distinction, but one that the reader may appreciate.  The Fifth Amendment right to counsel attaches when a suspect requests a lawyer during a custodial interrogation.  California v. Beheler (1983) 463 U.S. 1121, 1123, 103 S. Ct. 3517.  This must be requested during the interrogation, not before.  Bobby v. Dixon (2011) 565 U.S. 23, 28, 132 S. Ct. 26.

In contrast, the Sixth Amendment right to counsel, i.e. a public defender or an attorney of one’s choice, attached once adversarial proceedings are initiated, which is typically upon the filing of formal charges.  Fellers v. U.S. (2004) 540 U.S. 519, 124 S. Ct. 1019; Massiah v. U.S. (1964) 377 U.S. 201, 84 S. Ct. 1199.  It does not attach before charges are filed, which is why if someone is arrested, released and, before charges are filed, marches over to the public defender’s office to demand a consultation, the public defender’s office may tell them that they cannot help them until the complaint is filed.

For more information about Fifth and Sixth Amendment issues, please click on the following articles:
  1. Confession Is Inadmissible When Probation Officer Promised Shorter Sentence If Probationer Waived Right to an Attorney
  2. If Representing Oneself, Ten Things to Never Say in Court.
  3. Four Facts About Miranda Rights That Everyone Should Know
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