Does My Character Need a Lawyer?

You have to admit that you love Hollywood. Not for their writing prowess, not for their creativity, but for being the most outspoken group of liberals that violates almost every suspect’s civil rights in their crime shows. One would think that the writers would want to educate the public as to what their rights really are and how to use them. I am not talking about beatings and other forms of corruption. I am talking about Absolute Right to Counsel issues (ARC), when a suspect MUST have a lawyer during police interrogation.

What is the Absolute Right to Counsel? In order for statements made by a suspect to be admissible in court, the defendant must have an attorney present before any questioning by the police. This occurs: (1) When an accusatory instrument (arrest warrant) has been filed or (2) When the defendant asks for a lawyer. The writer has to be very careful when crafting an interrogation scene.

I. Subject: Right to Counsel at Lineups

Question: When a suspect requests that his lawyer be present at his impending lineup, do the police have a duty to contact the lawyer and give him an opportunity to attend the lineup?

Answer: Yes. When a lawyer represents a suspect, that suspect can trigger his right to counsel at a lineup if he ASKS for his lawyer to be present. The lawyer must be notified and be given a REASONABLE opportunity to appear.

The writer has to pay attention to the words I capitalized; they can prove to be a pivotal part of your story. If the perpetrator does not have a lawyer, he will not have a right to counsel at the lineup, if he asks for one or not.

Resource: New York Court of Appeals in People v. Coates N.Y. 2d July 13, 1989

II. Subject: Right to Counsel

Question: May the police question a suspect about charges for which he has been arrested if the police are aware that the suspect has an attorney on a prior, pending, UNRELATED criminal case?

Answer: Yes. If the suspect is not represented by counsel on the new arrest and the suspect waives his right to counsel, he may be questioned by the police. However, they cannot ask him any questions about the unrelated criminal case that he has a lawyer for.

Writers’ Note: Johnny Jones is arrested for the murder of an eighty-year old female. He is currently going to court (has a lawyer) for a past burglary. The police can ask Johnny questions about the murder only if he waives his right to counsel for that charge. They cannot ask him questions about the burglary.

Resource: People v. Bing, People v. Medina, People v. Cawley N.Y. 2d, July 1990. The original ruling, People v. Bartolomeo 53 N.Y. 2d 225 (1981) was overturned by the New York Court of Appeals.

III. Subject: Right to Counsel

Question: May a suspect in custody waive her right to counsel and answer police questions even though she previously requested a lawyer when she was NOT in custody?

Answer: Yes. The magic phrase is, “when she was NOT in custody.” If she were in custody when she asked for a lawyer then she has an absolute right to counsel and cannot waive her rights except in the presence of an attorney. No ifs, ands, or buts.

Writers’ Note: Now, the only way this can change into an absolute right to counsel issue is when the person not in custody, hires an attorney and the attorney enters into the proceeding.

Resource: New York Court of Appeals in People v. Davis, 75 N.Y. 2d 517 (1990)

Many police shows on television and works of crime fiction have a problem with the next issue: when a suspect asks the cops if they think that he/she needs a lawyer. This can arise in almost any interrogation scene and the writer has to be aware that when a suspect unequivocally asks for a lawyer, all questioning must stop.

IV. Subject: Right to Counsel

Question: What should a police officer do when a suspect makes a vague or ambiguous remark that may be a request for an attorney, such as, “Maybe I need a lawyer?”

Answer: The police SHOULD attempt to clarify whether the suspect wants legal representation. However, an ambiguous request does not invoke a suspect’s absolute right to counsel and does not preclude answering the questions posed by an investigator.

Resource: People v. Thompson 153 A.D.2d 456 (Appellate Division, 1st Department (1990)

Writers’ Note: Here is how the exchange of questions and an ambiguous response can play out in a scene:

Detective: “…if you cannot afford a lawyer, one will be supplied to you free of cost.”
Suspect: “I don’t know Detective, shouldn’t I have a lawyer?”
Detective: “I’m telling you about your rights. If you want a lawyer you can have one.”
Suspect: “I don’t have a lawyer. Go ahead. I’ll answer whatever you want.”
Detective: “You can start with; do you understand the rights that I just read to you?”

If you notice in this example, the suspect clearly does not ask for an attorney. According to the court case the detective acted correctly and tried to clarify the suspect’s question regarding the attorney. The answers the suspect gives in this case would be admissible.

To learn more about Lineups, Interrogations and Right to Counsel Issues, visit http://www.joegwrites.com or read his book, Writing Crime New York Style.