Suppressing Statement (Part Three- When Does the Right to a Lawyer Attach?)

This is the third part of a multipart blog post written by a New York City criminal defense attorney that centers around issues concerning Miranda warnings and the suppression of statements. Part One focused on when the police were legally obligated to read a suspect his Miranda warnings. Part Two focused on what is considered an “interrogation.” This part focuses on the ramifications of requesting a lawyer and when the the right to a lawyer “attaches.”

Before continuing, I just want to emphasize that this blog post focuses on New York law. It is not intended to substitute the advise of any attorney and the information contained here is not legal advise. It is merely my explanation of what the law is in New York.

Under the 6th Amendment to the United States Constitution, a person has a right to a lawyer anytime they are accused of a crime. So when does that right attach? Meaning when does the theoretical “right to a lawyer” become an absolute reality in your case and what are the ramifications if the police continue to question you when your right is in effect?

The answer to these questions are relatively straightforward. The 6th Amendment right to a lawyer typically attaches pursuant to New York law in three scenarios. In scenario one, it attaches whenever a person unequivocally states to a police officer, District Attorney, or other law enforcement official that he wants to speak to a lawyer. In scenario two, the right attaches any time a lawyer affirmatively enters the proceeding. And in scenario three, the right attaches any time the District Attorney’s Office files an accusatory instrument with the court.

A hypothetical example is useful in illustrating these scenarios. Suppose a person is a suspect in a homicide. The police wish to speak to the suspect to either get him to confess or to lock the suspect in a statement in the event the story the suspect gives is contradicted by hard evidence. In this hypothetical, a detective calls the suspect to come to the precinct and the suspect does so voluntarily. The detective then reads the suspect his Miranda warnings and begins to question him. In scenario one, the suspect affirmatively tells the detective that he wants to have an attorney present. At this point the questioning must stop because the right to counsel attaches. Although straightforward, it is important to note that if the suspect equivocates by saying things like, “gee, I don’t know if I should answer these questions, maybe I should get a lawyer” or “should I have a lawyer here for this” this does NOT necessarily make the right to a lawyer attach. The suspect has to affirmatively say he wants a lawyer (“I want a lawyer”). If he does so, then the right to counsel attaches. In scenario two, a lawyer calls the police precinct or the District Attorney’ Office and says he represents the suspect and the police are to refrain from asking any more questions. In scenario three, the District Attorney’s Office either swears out a criminal court complaint, votes an indictment, or has a judge sign an arrest warrant, and the sworn (meaning signed under penalty of perjury) document is filed with the court. At this point, the right to counsel attaches and any questioning must cease. It is important to note with regard to scenario three that because the right to counsel attaches due to the actions of the police, they refrain from filing the requisite documents to start a proceeding until the last possible moment. This is why the police tend to not get arrest warrants, vote indictments early, or swear out complaints until after the suspect already gave a statement or requested a lawyer.

In addition to what’s written above, there are three additional points that are important. One is that New York has what is called “the indelible right to counsel.” What this means is that New York courts have consistently held that once a person’s right to counsel “attaches,” it cannot go away on the matter at issue. This means that if you are wanted for questioning and you tell the police you want a lawyer when they talk to you, you have the right forever. Even if thirty years pass and the police discover new evidence and now they want to talk to you again on the case, your right already attached when you requested a lawyer the first time. The second point is that if you are questioned after your right attaches, then anything you say will be suppressed by a judge (meaning the police can’t use the statement against you). The third point is that even if your right to a lawyer attaches, if you spontaneously and voluntarily say something not in response to interrogative question or action by the police, the statement will not be suppressed. The right to a lawyer only prevents the police from asking you questions, it doesn’t give you free reign to say whatever you want afterwards and expect that the statements will be suppressed.

If you have any questions about any of the topics covered in this blog post or with anything relating to the New York criminal justice system, do not hesitate to contact me immediately.