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Invocation of Right to Counsel Must Be Unequivocal

When a person invokes a right to counsel, a pending criminal interrogation must stop unless the person initiates further conversation with the police. But to be effective, an invocation of the right to counsel must be unequivocal. An equivocal reference to counsel, whether made before or after being advised of constitutional rights, does not require the interrogation to cease. Whether a request for counsel is equivocal is a mixed question of law and fact. In the recent Tennessee case of State v. Scott, E2012-02012-02734-CCA-R3-CD (Tenn.Crim.App. 12-6-2013), the Tennessee Court of Criminal Appeals concluded that the defendant's statement to police that she thinks she needs an attorney was not, in that case, an unequivocal invocation of the right to counsel.

In the Scott case, while police were executing a search warrant at the defendant's home, they were speaking with her about the possibility of her assisting them in future drug crime investigations. Expressing reservations due to the physical risks involved, the defendant also stated that she thought she needed an attorney.

At the suppression hearing, the law enforcement officer denied the defendant said anything about an attorney. But the trial court elected to believe the defendant's testimony and concluded that she did. Yet the trial court also concluded that the statement was equivocal, and therefore it was not constitutional error for the discussion to continue.

The Court of Criminal Appeals agreed with the trial court conclusion that the statement was not, under the facts of this case, unequivocal.

For more information on the right to counsel in a criminal case, contact Hindman & Associates.

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