Monday, August 30, 2021

Saying "I probably should have an attorney" doesn't actually stop the cops from asking you questions

 Via Law360 (paywall), this detail from the Lieber case: 

Law360 (August 6, 2021, 3:50 PM EDT) -- Federal prosecutors pushed back Friday on claims that government agents tricked a Harvard University professor into making incriminating statements during his interrogation over grant fraud claims, saying the nanotechnology researcher never asked to have an attorney present.

Agents with the Federal Bureau of Investigation didn’t violate professor Charles Lieber’s Fifth Amendment rights when they continued questioning him despite an ambiguous statement about having an attorney present in response to hearing his Miranda rights, prosecutors said.

“The defendant’s statement about an attorney at the outset of the interview — ‘I guess, I think probably I should have ah, an attorney’ — was replete with ambiguous and hedging language that could not reasonably be construed as a clear request for an attorney,” prosecutors said.

The government listed off a string of similar statements in other cases that also failed to meet the bar of an unequivocal request to have an attorney, triggering a requirement that agents stop questioning.

Prosecutors argued that Lieber’s statement was at least as ambiguous as the others: “Maybe I should talk to a lawyer,” “Can I talk to a lawyer first?” “Can you call my attorney?” “I guess you better get me a lawyer,” “I think I need a lawyer,” “I should probably get a lawyer, I guess,” “I think I would like to talk to a lawyer,” and “Maybe I ought to see an attorney.”

The Harvard professor said last month the agents “unlawfully employed tactics of trickery and coerced involuntary statements” from him and asked a federal judge to toss the interview in its entirety from the case.

I guess the take home message from the Lieber case continues to be “don’t talk to the cops”, especially since “can you call my attorney?” isn’t interpreted as a request for an attorney by federal agents. It sounds like sticking to “I’m not saying anything until my attorney arrives” is the way to go.

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