As noted in other blog posts, in the State of New York, where a suspect unequivocally requests to speak to counsel, interrogation must cease. Critically, the statement must be clear. As a result, under New York State Law, the right does not attach when a suspect merely states he has an “appointment with counsel.” In another New York case, the court found the right to counsel is not triggered where the suspect indicated he “might want a lawyer.”
Here, it is clear the suspect was in custody, being interrogated, and the suspect clearly stated he did not want to talk to police anymore and wanted to speak to counsel. Under New York law, that should be enough to trigger the right to counsel which makes later questions by New York police unlawful, unless the inquiry fits within a few limited exceptions which are not relevant here.
However, in this case, another question is presented: After the right to counsel is triggered, what if the suspect later decides he does not want an attorney? After the accused revokes his wish for an attorney, can his prior statement be used against him? Specifically, could the prosecutor claim the right was not triggered because the suspect’s request for counsel was disingenuous?
In the State of New York, once a suspect has invoked his or her right to counsel, he or she may waive this right in the presence of a magistrate. For the purposes of deciding whether the suspect invoked his right to counsel, it is not relevant if the suspect later decided he or she did not want an attorney. Under New York law, the proper inquiry, where the accused decides to waive his right to counsel, is whether there has been a sufficient inquiry to ensure the accused appreciates the dangers and disadvantages in giving up the right. This inquiry could take place in the presence of a magistrate.
Based on the clear rule here in New York, the statement, made by the accused after he triggered his right to an attorney, cannot be part of the Prosecution’s case against the accused.