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Invoking the Right

Because the invocation of Miranda rights, particularly the right to counsel, has created significant burdens on law enforcement’s ability to conduct effective interrogations, several recent court decisions have begun to limit a custodial suspect’s ability to invoke that right. Specifically, the Court wants to ensure that a suspect’s invocation of rights is not frivolous. To do this, courts require that suspects invoke their right to counsel be made unequivocally, as well as in a timely manner.

If individuals are arrested or questioned, the burden is on them to invoke their right to counsel in a clear and unequivocal manner. They should receive notice that they have the right to an attorney, but law enforcement is not required to ask them whether they want an attorney, nor do they need to ask them clarifying questions if they are unclear in their request for an attorney. Not only must invoking the right to counsel be unequivocal, but courts also have begun to insist that invocations of the Miranda right to counsel be made in a timely manner. Individuals should not wait to be asked if they want a lawyer, nor should they expect the police to read them Miranda warnings before they ask for counsel.

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