At what point can I request a lawyer during questioning?

Requesting a Lawyer During Questioning

When police or investigators want to ask you questions, it can be intimidating. You have the right to have a lawyer with you, but it’s not always clear when you can invoke that right. Let’s break it down.

The Miranda Warning

If the police take you into custody and want to interrogate you, they must first read you your Miranda rights. This includes the right to remain silent and to have an attorney present during questioning.

When Miranda Applies

Police only have to Mirandize you if:

• You’re in custody
• You’re being interrogated

If it’s just casual questions or you’re free to leave, Miranda may not be required.

Invoking Your Rights

Once you’re read your rights, you can invoke your right to remain silent and right to counsel by clearly telling police you want a lawyer. Then questioning must stop until your attorney is present.

When to Invoke

You can invoke your right to an attorney at any time – before, during, or after questioning. There’s no limit to how many times you can invoke the right.

Can’t Afford a Lawyer?

If you can’t afford your own lawyer, police must provide you with a free public defender before continuing interrogation if you request one.

Don’t Have to Invoke Immediately

Some people think they have to immediately invoke rights after getting Mirandized. But you can talk first and then decide to invoke your rights later on.

Can’t Invoke Pre-emptively

The Supreme Court has ruled you can’t invoke your Miranda rights before being taken into custody or receiving the warning. You have to actually be in a custodial interrogation.

Invoking Silence vs. Counsel

You can invoke your right to silence only or your right to an attorney – or both. If you just invoke silence, police can keep trying to question you later.

After Invoking Counsel

If you invoke your right to an attorney, police cannot try to continue questioning you until your lawyer is actually present.

Waiver of Rights

If you waive your Miranda rights and talk to police, anything you say can be used against you. That’s why invoking rights is so important.

Violations of Miranda

If police violate your Miranda rights, statements obtained may be inadmissible in court. But physical evidence found may still be used.

Non-Interrogation Questioning

Police don’t have to read you Miranda rights for basic on-scene questions to figure out what’s going on in a crime situation.

Undercover Operations

Miranda only applies to custodial interrogation by known police officers. It doesn’t cover undercover operations where you don’t know you’re speaking to law enforcement.

Juveniles

Miranda rights and rules also apply when police question juvenile suspects. But extra care should be taken that juveniles understand their rights.

Don’t Wait Too Long

While you don’t have to immediately invoke rights, it’s generally smart to do so if you think you may want a lawyer rather than talking first.

When in Doubt

If you have any doubts about whether you’re free to leave or whether police are required to Mirandize you, err on the side of caution and explicitly invoke your rights.

Knowing when you can invoke your Miranda rights is critical to protecting yourself during police questioning. Don’t hesitate to clearly ask for a lawyer if you want one – that’s your constitutional right.

References

[1] Miranda Warning

[2] When Are Miranda Warnings Required?

[3] Miranda Rights During Interrogation

[4] Can I Invoke My Miranda Rights Before I’m Arrested?

[5] Police Questioning and the Miranda Warnings