# "Supreme Court just took away your right to \[a lawyer for\] your interrogation" **URL:** \ **Category:** Great Debates\ **Created:** [May 27, 2009, 12:17am UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753 "2009-05-27T00:17:27Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [May 27, 2009, 12:17am UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/1 "2009-05-27T00:17:27Z")
Or so some libertarian blogger’s commenter claims about [this ruling.](http://online.wsj.com/article/SB124334529081854421.html) Frankly, I’m a little confused by what this ruling “really” means. How big a sea change is it for the legal system? Will _Law and Order_ and all those other shows have to totally rewrite their scripts from now on? ---
**Author:** ![Llama\_Llogophile](https://avatars.discourse-cdn.com/v4/letter/l/49beb7/32.png) [@Llama\_Llogophile](https://boards.straightdope.com/u/Llama_Llogophile)\ **Post date:** [May 27, 2009, 12:32am UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/2 "2009-05-27T00:32:35Z")
NPR explained it as the police can still continue questioning you if your lawyer isn’t present. But that doesn’t mean you have to answer - you can remain silent. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 27, 2009, 1:06am UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/3 "2009-05-27T01:06:12Z")
That’s not true at all. What the Supreme Court did is overturn an old case that said that, if you asked for a lawyer at arraignment, you could no longer be questioned by the police until your attorney was present. It effectively took a protection that already existed, and extended it to situations where the request for an attorney came at the arraignment/preliminary hearing. Now, you still are immune from questioning if you request an attorney. You just don’t get to claim that the attempt by the police to question you at/after the arraignment/preliminary hearing (in the absence of a clear indication on your part you want an attorney present during questioning) is a violation of your fifth/sixth amendment rights. Very narrow. ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [May 27, 2009, 6:37am UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/4 "2009-05-27T06:37:18Z")
> [@DSYoungEsq](#): > > Very narrow. Exactly. If you know your rights, nothing changes. If you don’t, then in a narrow situation you won’t be saved by the constitution (assuming it ever existed in the first place). ---
**Author:** ![aruvqan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aruvqan/32/2891_2.png) [@aruvqan](https://boards.straightdope.com/u/aruvqan)\ **Post date:** [May 27, 2009, 1:50pm UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/5 "2009-05-27T13:50:06Z")
but … even if you are as innocent as a babe still in the womb NEVER answer anything other than properly identifying yourself until you have a lawyer representing you … and NEVER EVER EVER discuss ANY aspect of your case with ANYBODY EXCEPT YOUR LAWYER. Especially not your cellmate. Once they have you sitting in that chair, arrested or not, police have no requirement NOT to lie to you, and if they can manage to get you saying something innocent that could possibly get misconstrued, they will. And then they will use it against you. That is simply how it goes. They will always make the assumption that you are guilty of _something_ and proceed accordingly. I don’t blame most cops for taking that view, but it is hard on those of us that are actually innocent. Granted we have come a long way from back rooms and rubber hoses, but they can keep you sitting in that annoying little room for hours and hours. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 27, 2009, 4:35pm UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/6 "2009-05-27T16:35:31Z")
none of which is relevant to the discussion raised in the OP. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [May 27, 2009, 4:48pm UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/7 "2009-05-27T16:48:14Z")
> [@DSYoungEsq](#): > > Very narrow. It doesn’t seem that narrow to me. I’ve only read the linked article’s blurb on the case, but it appears that this opens a real opportunity for police badgering, which is already a problem. –Cliffy ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [May 27, 2009, 4:59pm UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/8 "2009-05-27T16:59:37Z")
> [@DSYoungEsq](#): > > none of which is relevant to the discussion raised in the OP. I don’t know about that. A significant number of overturned convictions are a result of false confessions obtained or self-incrimination during the time when a prisoner is being questioned but before an attorney arrives. Taking that window away from them, meaning questioning must stop until an attorney is present, may have helped prevent these cases. I bet the Innocence Project has a lot to say about this ruling but I’m not finding comments on it on their site yet. Enjoy, Steven ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 27, 2009, 5:19pm UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/9 "2009-05-27T17:19:48Z")
> [@Cliffy](#): > > It doesn’t seem that narrow to me. I’ve only read the linked article’s blurb on the case, but it appears that this opens a real opportunity for police badgering, which is already a problem. > > –Cliffy Edwards is still in place. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [May 27, 2009, 5:23pm UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/10 "2009-05-27T17:23:22Z")
> [@Cliffy](#): > > It doesn’t seem that narrow to me. I’ve only read the linked article’s blurb on the case, but it appears that this opens a real opportunity for police badgering, which is already a problem. > > –Cliffy Not being a lawyer myself, that’s kind of how I interpreted it – you can’t stop them from questioning you, so they can just go on hammering away at you. However, I could be wrong. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [May 27, 2009, 6:32pm UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/11 "2009-05-27T18:32:46Z")
> [@Bricker](#): > > Edwards is still in place. Civil lawyer that I am, you’re gonna have to spool that one out for me. –Cliffy ---
**Author:** ![Laudenum](https://avatars.discourse-cdn.com/v4/letter/l/7993a0/32.png) [@Laudenum](https://boards.straightdope.com/u/Laudenum)\ **Post date:** [May 27, 2009, 6:40pm UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/12 "2009-05-27T18:40:23Z")
Side-note: In Ireland, there is no right to have a solicitor present when you are being questioned by the Gardaí. So it could be worse. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 27, 2009, 8:45pm UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/13 "2009-05-27T20:45:34Z")
> [@Mtgman](#): > > I don’t know about that. A significant number of overturned convictions are a result of false confessions obtained or self-incrimination during the time when a prisoner is being questioned but before an attorney arrives. Taking that window away from them, meaning questioning must stop until an attorney is present, may have helped prevent these cases. I bet the Innocence Project has a lot to say about this ruling but I’m not finding comments on it on their site yet. > > Enjoy, > Steven This would be true if that was what the ruling took away. But, as **Bricker** helpfully notes, _Edwards_ was pointedly NOT rejected. Indeed, the existence of the guarantee in _Edwards_ was part of the reason that they overturned what they did (_Jackson_). In short, you still are entitled to have your right to have an attorney present during questioning explained to you at the time of custody (_Miranda_), you still are entitled to have questioning stop the second you request an attorney (_Edwards_) and you are still entitled to have the police not badger you until the attorney arrives (_Minnick_). All that has been lost is an add-on protection that says that, if you ask for counsel at an arraignment or preliminary hearing, you can’t be interrogated by the police until your attorney is appointed and shows up. In other words, a suspect who doesn’t know enough to respond at the time he’s Mirandized (or any time thereafter) with, “I want an attorney,” can’t cut off the questioning simply by saying at an arraignment, “yes, your honor, could I have one of those attorneys?” Very narrow. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 27, 2009, 9:31pm UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/14 "2009-05-27T21:31:50Z")
What the court said: > [@](#): > > Under our precedents, once the adversaryjudicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all “critical” stages of the criminal proceedings. United States v. Wade, 388 U. S. 218, 227–228 (1967); Powell v. Alabama, 287 U. S. 45, 57 (1932). Interrogation by the State is such a stage. Massiah v. United States, 377 U. S. 201, 204–205 (1964); see also United States v. Henry, 447 > U. S. 264, 274 (1980). > Our precedents also place beyond doubt that the SixthAmendment right to counsel may be waived by a defen-dant, so long as relinquishment of the right is voluntary,knowing, and intelligent. Patterson v. Illinois, 487 U. S. 285, 292, n. 4 (1988); Brewer v. Williams, 430 U. S. 387, 404 (1977); Johnson v. Zerbst, 304 U. S. 458, 464 (1938).The defendant may waive the right whether or not he isalready represented by counsel; the decision to waive neednot itself be counseled. Michigan v. Harvey, 494 U. S. 344, 352–353 (1990). And when a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive thoserights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment: > “As a general matter . . . an accused who is admon-ished with the warnings prescribed by this Court in Miranda . . . has been sufficiently apprised of the na-ture of his Sixth Amendment rights, and of the conse-quences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelli-gent one.” Patterson, supra, at 296. > The only question raised by this case, and the only one addressed by the Jackson rule, is whether courts must presume that such a waiver is invalid under certain cir-cumstances. 475 U. S., at 630, 633. We created such a presumption in Jackson by analogy to a similar prophylac-tic rule established to protect the Fifth Amendment based Miranda right to have counsel present at any custodial interrogation. Edwards v. Arizona, 451 U. S. 477 (1981), decided that once “an accused has invoked his right to have counsel present during custodial interrogation . . . [he] is not subject to further interrogation by the authori-ties until counsel has been made available,” unless he initiates the contact. Id., at 484–485. > The Edwards rule is “designed to prevent police from badgering a defendant into waiving his previously as-serted Miranda rights,” Harvey, supra, at 350. It does this by presuming his postassertion statements to be involun-tary, “even where the suspect executes a waiver and his statements would be considered voluntary under tradi-tional standards.” McNeil v. Wisconsin, 501 U. S. 171, 177 (1991). This prophylactic rule thus “protect[s] a suspect’svoluntary choice not to speak outside his lawyer’s pres-ence.” Texas v. Cobb, 532 U. S. 162, 175 (2001) (KENNEDY, J., concurring). > Jackson represented a “wholesale importation of the Edwards rule into the Sixth Amendment.” Cobb, supra, at > 175. The Jackson Court decided that a request for counsel at an arraignment should be treated as an invocation of the Sixth Amendment right to counsel “at every critical stage of the prosecution,” 475 U. S., at 633, despite doubt that defendants “actually inten[d] their request for counsel to encompass representation during any further question-ing,” id., at 632–633, because doubts must be “resolved in favor of protecting the constitutional claim,” id., at 633. Citing Edwards, the Court held that any subsequentwaiver would thus be “insufficient to justify police-initiated interrogation.” 475 U. S., at 635. In other words, we presume such waivers involuntary “based on the sup-position that suspects who assert their right to counsel are unlikely to waive that right voluntarily” in subsequent interactions with police. Harvey, supra, at 350. [http://www.supremecourtus.gov/opinions/08pdf/07-1529.pdf](http://www.supremecourtus.gov/opinions/08pdf/07-1529.pdf) In other words, the Court overruled a case that said that if a defendant who requests counsel in court, and therefore has a Sixth Amendment right to counsel at critical stages of the case, may waive the presence of counsel at subsequent interrogations without the waiver being presumed invalid. If he has requested counsel during a custodial interrogation, \*Edwards \*says a subsequent waiver is presumed invalid. ---
**Author:** ![aruvqan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aruvqan/32/2891_2.png) [@aruvqan](https://boards.straightdope.com/u/aruvqan)\ **Post date:** [May 27, 2009, 10:32pm UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/15 "2009-05-27T22:32:20Z")
> [@Laudenum](#): > > Side-note: In Ireland, there is no right to have a solicitor present when you are being questioned by the Gardaí. > So it could be worse. And this is the US, where we have different legal rights than other countries [hm, french based laws assume guilt rather than presume innocence is a major one IIRC. Not sure where on the scale irish laws fall offhand] ---
**Author:** ![Laudenum](https://avatars.discourse-cdn.com/v4/letter/l/7993a0/32.png) [@Laudenum](https://boards.straightdope.com/u/Laudenum)\ **Post date:** [May 28, 2009, 7:31am UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/16 "2009-05-28T07:31:08Z")
> [@aruvqan](#): > > And this is the US, where we have different legal rights than other countries [hm, french based laws assume guilt rather than presume innocence is a major one IIRC. Not sure where on the scale irish laws fall offhand] The [Woolmington](http://en.wikipedia.org/wiki/Woolmington_v_DPP)case (cited with approval by Irish courts) establishes that it is for the prosecution to prove guilt, not for the accused to prove his innocence. I didn’t know that about French law though. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 28, 2009, 3:07pm UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/17 "2009-05-28T15:07:57Z")
> [@aruvqan](#): > > And this is the US, where we have different legal rights than other countries [hm, french based laws assume guilt rather than presume innocence is a major one IIRC. Not sure where on the scale irish laws fall offhand] [QUOTE=Laudenum] I didn’t know that about French law though. [/QUOTE] The reason you didn’t know it is that it’s incorrect, and **aruvqan** is peddling a common bit of US-centric ignorance. France was the first country to expressly state the presumption of innocence in its written Constitution, in Article 9 of the [Declaration of the Rights of Man and of the Citizen](http://www.hrcr.org/docs/frenchdec.html), passed by the National Assembly of France, August 26, 1789: [QUOTE=Declaration of the Rights of Man and the Citizen] 9. As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all harshness not essential to the securing of the prisoner’s person shall be severely repressed by law. [/QUOTE] The presumption of innocence is also expressly set out in the French [Code of Criminal Procedure](http://195.83.177.9/code/liste.phtml?lang=uk&c=34&r=3883): [QUOTE=French Code of Criminal Procedure, Preliminary Article] III. Every person suspected or prosecuted is presumed innocent as long as his guilt has not been established. Attacks on his presumption of innocence are proscribed, compensated and punished in the circumstances laid down by statute. [/QUOTE] By contrast, the presumption of innocence is not expressly set out in the Constitution of the United States. The presumption has been given constitutional value in the U.S. by judicial interpretation of the Fifth, Sixth and 14th Amendments, which were all enacted after the Declaration. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 28, 2009, 10:16pm UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/18 "2009-05-28T22:16:24Z")
> [@Cliffy](#): > > Civil lawyer that I am, you’re gonna have to spool that one out for me. > > –Cliffy I would, but **DSYoung** stole the thunder: > [@DSYoungEsq](#): > > Indeed, the existence of the guarantee in _Edwards_ was part of the reason that they overturned what they did (_Jackson_). > > In short, you still are entitled to have your right to have an attorney present during questioning explained to you at the time of custody (_Miranda_), you still are entitled to have questioning stop the second you request an attorney (_Edwards_) and you are still entitled to have the police not badger you until the attorney arrives (_Minnick_). All that has been lost is an add-on protection that says that, if you ask for counsel at an arraignment or preliminary hearing, you can’t be interrogated by the police until your attorney is appointed and shows up. In other words, a suspect who doesn’t know enough to respond at the time he’s Mirandized (or any time thereafter) with, “I want an attorney,” can’t cut off the questioning simply by saying at an arraignment, “yes, your honor, could I have one of those attorneys?” > > Very narrow. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 29, 2009, 10:49am UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/19 "2009-05-29T10:49:47Z")
> [@aruvqan](#): > > And this is the US, where we have different legal rights than other countries [hm, french based laws assume guilt rather than presume innocence is a major one IIRC. Not sure where on the scale irish laws fall offhand] The Republic of Ireland is a common law country. And there is no “presumption o of innocence” in any common law country (US Included). The “presumption” is based on the old common law rule that “he who asserts, must prove”, thus since its the crown/ state that is asserting the accused’s guilt it is they who must prove it. The reverse is true as well, for instance if the accused is claiming self defence, he dose have (in some countrys) the duty to raise sufficient evidence for it to become an issue at trial (often called the “evidential burden”), before the prosecution are given the burden of disproving it. In the Criminal procdures of many UK and British Empire jurisdictions, there used to be a rule which basically stated that only a confession made to a magistrate could be adduced as evidence, a confession made to a policeman was NOT admissable as evidence. Perhaps it is still inforce in Ireland? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 29, 2009, 3:10pm UTC](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753/20 "2009-05-29T15:10:03Z")
> [@AK84](#): > > The Republic of Ireland is a common law country. And there is no “presumption o of innocence” in any common law country (US Included). This just isn’t correct, **AK84**. For example, s. 11(d) of the [_Canadian Charter of Rights and Freedoms_](http://laws.justice.gc.ca/en/const/9.html#codesc:7-bo-ga:l_I-gb:s_7-se:11) entrenches the presumption: > [@](#): > > Proceedings in criminal and penal matters > > 1. Any person charged with an offence has the right > … > (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; And requiring the accused to do anything more than raise a reasonable doubt, even an evidential burden for a defence, is a violation of this right, under the decisions of the Supreme Court of Canada. > [@AK84](#): > > In the Criminal procdures of many UK and British Empire jurisdictions, there used to be a rule which basically stated that only a confession made to a magistrate could be adduced as evidence, a confession made to a policeman was NOT admissable as evidence. Perhaps it is still inforce in Ireland? I’ve never heard of this rule - can you provide a citation? My understanding is that the courts would not admit a confession to a police officer or other person in authority unless they were satisfied it was freely and voluntarily made: _Rex v. Warickshall_ (1783), 1 Leach 263. In the early part of the 20th century, this led to the House of Lords ruling that unless the police advised the detainee of his right to have a solicitor present, and the confession was made without fear or favour, then the confession would be inadmissible: _Ibrahim v. R._ [1914] AC 599. For a useful summary, see [The Art of Confessions: A Comparative Look at The Law of Confessions – Canada, England, The United States and Australia](http://www.icclr.law.ubc.ca/Publications/Reports/ES%20PAPER%20CONFESSIONS%20REVISED.pdf) (pdf), at pp. 5-9. [Next page](https://boards.straightdope.com/t/supreme-court-just-took-away-your-right-to-a-lawyer-for-your-interrogation/497753.md?page=2)