Friday, October 10, 2008

In New York the unequivocal assertion of the right to counsel acts to preclude any further questioning unless there is a waiver of the right to silence in the presence of counsel. But what constitutes such an unequivocal assertion? That was the issue in People v Edwards (2008 NY Slip Op 07474 [10/3/08]. When two detectives sought to speak to Mr. Edwards he informed them that his union representative and a friend who is a Sheriff's Deputy advised him not to speak to the police. When the police responded that those people were not attorneys, Mr. Edwards replied that he did not have an attorney and could not afford one. Was that his way of saying that he wanted an attorney and was relying on his friends who most knew the law solely because he could not afford one? The trial court said no, and the Fourth Department held that the record supports the court's determination (the Court wrote that on this issue one should see generally People v Glover, 87 NY2d 838; People v Fridman, 71 NY2d 845; People v Hicks, 69 NY2d 969, rearg denied 70 NY2d 796; People v Dehmler, 188 AD2d 1056, lv denied 81 NY2d 1013).
The Court did not cite People v Porter (9 NY3d 966 [2007]), in which the Court of Appeals, last year, overturned the Appellate Division, Fourth Department's decision, on whether the circumstances established an unequivocal invocation of the defendant's right to counsel. The Court in Porter emphasized that in deciding on whether request is unequivocal, the court should look at the clear meaning of the statement and held that the defendant's words "I think I need an attorney", coupled with an interviewing officer's notation that defendant was "asking for an attorney" demonstrated an unequivocal invocation of defendant's right to counsel.
The Edwards decision does not explain why the statments of Mr. Edwards fell short of the standard applied in Porter.