Mr. Manak is an Adjunct Professor of Law at the University of Illinois Law School at Chicago,

formerly the John Marshall Law School; and has served on the faculty of NorthwesternUniversity and as consultant to the National District Attorneys Association. He is the present andformer author/editor of several law enforcement publications, including Criminal Law and Its Administration, coauthored with professor Fred E. lnbau; the Illinois Law of Criminal Investigation; the Law Enforcement Legal Defense Manual; the Law Enforcement Legal Review; and Case Commentaries and Briefs formerly published by the National District Attorneys Association.

MIRANDA: DEFENDANT’S INVOCATION OF THE RIGHT TO COUNSEL DURING

POLICE QUESTIONING; DEFENDANT’S INTEREST IN SPEAKING DIRECTLY TO

THE POLICE DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT

TO COUNSEL

People v. Dawson, 2022 N.Y.S. Slip Op. 02772, No. 59 SSM 5 (N.Y. Court of Appeals 2022).

https://law.justia.com/cases/n...

SUMMARY, FACTS AND PROCEDURAL HISTORY

The New York Court of Appeals (the highest court of review in New York State) ruled that a

suspect who desires to have an attorney while in police custody must “. . . unequivocally invoke

his right to counsel” while in custody in order to bar the police from further interrogation

without the presence of an attorney. Thus, a defendant whose “inquiries and

demeanor suggested a constitutional interest in speaking with an attorney only if it would

not otherwise delay his clearly-expressed wish to speak to the police – did not

unequivocally invoke his right to counsel while in custody.”

A strong dissenting opinion countered that the right to counsel during police custody is not

waived by a defendant’s attempt to also deal personally with the police.

MEMORANDUM MAJORITY OPINION:

The order of the Appellate Division should be affirmed. Holding by the Court:

Once a defendant in custody unequivocally requests the assistance of counsel, the right to

counsel may not be waived outside the presence of counsel (see People v. Glover, 87 NY2d

838, 839 [1995]). But “[a] suggestion that counsel might be desired; a notification that

counsel exists; or a query as to whether counsel ought to be obtained will not suffice” to

unequivocally invoke the indelible right to counsel (see People v Mitchell, 2 NY3d 272, 276

[2004], citing People v Roe, 73 NY2d 1004 [1989]; People v Fridman, 71 NY2d 845 [1988];

People v Hicks, 69 NY2d 969 [1987]). Furthermore, “[w]hether a particular request is or is not

unequivocal is a mixed question of law and fact that must be determined with reference to the

circumstances surrounding the request including the defendant’s demeanor, manner of expression

and the particular words found to have been used by the defendant” (Glover, 87 NY2d at 839).

Here, there is support in the record for the lower courts’ determination that

defendant—whose inquiries and demeanor suggested a conditional interest in speaking

with an attorney only if it would not otherwise delay his clearly-expressed wish to speak to

the police—did not unequivocally invoke his right to counsel while in custody. That mixed

question of law and fact is therefore beyond further review by this Court (id.; see Mitchell, 2

NY3d at 276). Defendant’s remaining contentions are without merit.