Those of us who have ever watched crime drama on television know that we have the right to remain silent and the right to counsel, and the police have to tell us that before interrogating us about a crime, right? And when we say we want a lawyer or don’t want to answer, they have to stop the interrogation? Yes … if we are in custody. If we are not in custody, they can ask whatever they want and don’t have to tell us anything.

In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court ruled that when we are under arrest, we must be specifically informed of certain constitutional rights, such as our right to remain silent, before we can be questioned by authorities. If we say we want to remain silent, or that we want a lawyer, questioning must stop. The reasoning is that when we are in police custody, the police are in control of us. We can’t leave if we want to. So we are more likely to feel as if we have no choice but to answer questions, even though we have the constitutional right not to answer. The Supreme Court created a rule to ensure that we are informed of our rights in that situation before questioning can occur. Although we always have the right to refuse to give evidence against ourselves, we do not have to be told that if we are not in custody.

In the recent case of U.S. v. Malcolm, 08-5717 (6th Cir. 6-7-2011), the Defendant argued that statements he gave during an interview with authorities in a room at an ATF office should be excluded from evidence because he was not first advised of his rights and because he asserted his right to counsel. The problem was that he voluntarily went to the ATF office for questioning and was not under arrest at the time. During the interview, he pointed out that maybe he should have a lawyer. But you can’t stop non-custodial interrogation by asking for a lawyer. In addition, the statement was equivocal and ambiguous, and not an invocation of the right to counsel anyway.

The Court noted that the fact that the interview occurred in an ATF office and that the Defendant was a suspect did not make it a custodial interrogation. In addition, after the Defendant was arrested and read his rights (and continued to make incriminating statements), his former statement that he should perhaps have a lawyer had no effect on whether questioning could continue. Both because the Defendant was not in custody when the statement was made and because it was an equivocal statement anyway.

For more information about your rights if you are suspected of a crime, don’t equivocate. Contact The Lanzon Firm.