Document Category: Invocation

This suppression motion argues that client’s statement—“I think it’d probably be a good idea for me to get an attorney”—should be understood as a clear invocation of the Fifth Amendment right to counsel. Relying on a recent empirical study, the motion argues that the invocation standard should be synonymous with a reasonable listener standard. Because ordinary American listeners overwhelmingly interpret conditional statements, questions, and hedges, like the one used by client, as clear invocations of the right to counsel, the motion argues a reasonable officer should have understood client’s statement to be a clear invocation of the right to counsel. In the alternative, the motion argues that the Court should follow the lead of other states and impose upon police a duty to clarify. Finally, the motion argues that because officers ignored client’s stated desire to speak with an attorney, the resulting statement was also involuntarily given.

This brief argues that the Alaska Constitution requires police to suspend substantive questioning and clarify when a person makes an ambiguous or equivocal reference to counsel during custodial interrogation. It collects case law from eight other states that have adopted this more protective rule despite Davis v. United States’s decision that, under the federal constitution, all invocations must be clear and unambiguous (pp. 16-21). The brief talks about the problems with the Reid interrogation method (pp. 6-7), the frequency and strength of false confessions in criminal cases (pp. 5-10), and how vulnerable populations have diminished capacity to understand and invoke Miranda rights (pp. 10-16).