Almost everyone in our country has some familiarity with the Miranda warnings if for no other reason than they are repeated in almost every crime movie or criminal justice based television show. We all seem to intrinsically know that we have a right to remain silent and to consult with an attorney prior to speaking with the police. I also think that we all grasp the concept that anything we say to the police could be used against us in court. Our understanding of the Miranda "rights" raises an interesting question: how long do they last? If we tell the police that we want an attorney before we answer any questions how long is that good for? Does it apply only for that specific conversation, for a person's lifetime, or somewhere in between? Recently our Supreme Court gave us some guidance on answering this question.
14 days. That's it. You ask for an attorney and your request only lasts for 14 days. After that, the police are free to come back and attempt to question you again. If you ask for an attorney a second time how long does that request last? Yep, you guessed it. 14 days.
Prior to 2010, if a person invoked the right to counsel the police were prohibited from questioning the person until an attorney was present. (As a practical matter, when a person invokes his or her right to counsel if effectively ends any further questioning from the police. Absent very limited circumstances, no competent criminal defense attorney would allow his or her client to answer police questions. Even if the person is factually innocent, there is simply no "upside" for a person to answer questions). However, in 2010 the United States Supreme Court concluded that if a person is in custody and invokes his or her right to counsel he or she is shielded from police questioning for only 14 days. Simply put, the Court decided that a person's right to counsel, once invoked, does not permanently bar all subsequent interrogations.
In August, the Wisconsin Supreme Court decided a case that presented the same issue. In that case, a 17 year old firefighter, Mr. Edler, became a suspect in two arsons and a burglary. The police questioned Mr. Edler and he admitted to the burglary. When the police asked about the arsons, he asked for an attorney. Mr. Edler was released from custody on bail and 19 days later the police re-arrested Mr. Edler and attempted to interrogate him. While in the back of the cop car, Mr. Edler asked, "can my attorney be present for this?" Of course the cops said yes, but once they got to the police station the officer quickly read Mr. Edler his rights (although Mr. Edler had invoked his right to counsel a short time ago), which he waived. Mr. Edler went on to make incriminating statements about the arsons.
The Wisconsin Supreme Court made two important rulings. First, it concluded that Mr. Edler's question of "can I have an attorney present for this" constituted an unambiguous assertion of his right to an attorney. Other members of the court did not view Mr. Edler's question with such clarity. Nonetheless, the important take away here is to be very clear when asserting your right to counsel. I advise all of my clients to simply state "I want to speak with my attorney before I answer any additional questions."
Second, the court adopted the federal 14 day "break in custody" rule and rejected Mr. Edler's argument that a suspect's right to counsel, once invoked, should permanently bar all subsequent interrogations by police after the suspect's release.
From a practical perspective, the most important takeaway of Mr. Edler's case is not the number of days the police must wait before attempting to re-interrogate a suspect. Rather, the important takeaway is that the Miranda rights are provided for a reason. The rights serve as a big red flag that you might want to think twice before answering police questions. There are not of other activities that occur in our society where a person is required to be advised that they have a right to consult with an attorney before proceeding. That is a significant warning and should be taken seriously and strongly considered by all people accused of wrongdoing.