When Does The Right to Counsel Begin With Custodial Interrogation?

The right to counsel is one of the most significant adjuncts to safeguard an accused’s privilege against self-incrimination. Fare v. Michael C., 442 U.S. 707,719 (1979); State v. Reed, 133 N.J. at 253. The right to counsel implicated in the pre-indictment custodial interrogation is distinct from the right to counsel that is constitutionally guaranteed once a defendant has been indicted. State v. Reed, 133 N.J. at 263; State v. Sanchez, 129 N.J. 261, 276, 277 (1992). As the Miranda decision recognized, presence of counsel for a suspect during interrogation not only allows a suspect to make an informed decision about whether or not to talk to the police, but also helps to ensure that any statement so given is truthful and accurate. Miranda v. Arizona, 384 U.S. at 463-466. See also State v. Sanchez 129 N.J.  at 266. Accordingly, not only must the police advise a subject subjected to custodial interrogation that he or she has a generalized right to an attorney, but the police must further advise the suspect that an attorney will be provided at the state’s expense if the suspect is unable to afford an attorney. Miranda v. Arizona, 384 U.S. at 473; State v. Reed, 133 N.J. at 253.

If an individual states that he or she wants an attorney, the questioning must cease until the attorney arrives. Miranda v. Arizona, 384 U.S. at 474; State v. Kennedy, 97 N.J. 278, 285 (1984). In Edwards v. Arizona, 451 U.S. 477, 484-485 (1981), the United States Supreme Court established a per se rule that an accused who invokes his or her right to counsel is not subject to further interrogation until counsel has been made available. See also Minnick v. Mississippi,  498 U.S. 146, 153 (1990). All dialogue with a suspect who has requested counsel must cease “unless the accused himself initiates further communication, exchanges or conversations with the police.” Edwards v. Arizona, 451 U.S. at 485. See also State v. Kennedy, 97 N.J. at 285. To establish a waiver of the privilege against self-incrimination is per se invalid. Reed, 133 N.J. at 262.

As with the invocation of the right to remain silent, a suspect’s request for counsel need not be “articulate, clear or explicit;… any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel.” State v. Reed, 133 N.J. AT 253. See also State v. Bey (II ), 112 N.J. at 142. New Jersey law may differ from federal law on the invocation of a request for counsel. Under federal law, an ambiguous or equivocal request is not sufficient. Rather, the response must be such that a reasonable officer under the circumstances would have understood it to be an expression of request for counsel. Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362, 371-373 (1994).

Federal and New Jersey law are consistent in holding that the Sixth Amendment is “offense specific.” McNeil v. Wisconsin 501 U.S. 171, 175 (1991); State Tucker,  137 N.J. 259, 278 (1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 751, 130 L.Ed.2d 651 (1995). McNeil held that a defendants’ assertion of a right to counsel during his court appearance on a robbery complaint did not preclude police initiated interrogation on an unrelated homicide. McNeil, 501 U.S. at 175-176. The New Jersey Supreme Court’s gloss on McNeil is that if the offense under investigation is based on essentially the same factual context as the charged offense, a defendant’s assertion of his or her Sixth Amendment right to counsel should bar police-initiated interrogation on the related charge. Tucker, 137 N.J. at 278.

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