Suppressing a confession taken after a request for a lawyer
Argue that a confession must be suppressed because police kept questioning after the suspect asked for counsel. You have 90 minutes. To: Associate. Use the File and the Library only, then compare your draft with the rubric and the model answer below.
The assignment
To: Associate. From: Naomi Bhatt, Public Defender. Re: State v. Orozco. Our client, Luis Orozco, is charged with burglary. He confessed after police questioned him at the station. Please draft the Argument section of our motion to suppress. Argue that the confession violated Miranda because Mr. Orozco invoked his right to counsel and because any waiver was not valid, and respond to the State's argument that his request was ambiguous. Use only the Library, use point headings that state a conclusion, and do not include a statement of facts.
File
Interview report
Detective Ryan Ames arrested Mr. Orozco at his home at 6:00 a.m. and took him to the station. At 6:40 a.m. Ames read the Miranda warnings from a card. Mr. Orozco said, 'I want a lawyer before I say anything.' Ames said, 'Okay, but I want to tell you what evidence we have,' and spent ten minutes describing a witness and a video. Mr. Orozco then said, 'Fine, I'll tell you what happened.' Ames did not repeat the warnings. Mr. Orozco confessed and signed a written statement at 7:35 a.m. He had no lawyer present. Mr. Orozco is 19 and had not been arrested before.
State's response (excerpt)
Mr. Orozco's request was equivocal and, in any event, he reopened the conversation and voluntarily waived his rights.
Library
Constitution, Article I, section 9 (Franklin)
No person shall be compelled in any criminal case to be a witness against himself, and no person in custody may be interrogated after asking for counsel unless counsel is present or the person himself initiates further communication and validly waives the right.
State v. Petrakis, 43 Fr.3d 118 (Fr. Sup. Ct. 2013)
A suspect in custody said, 'I think I need a lawyer.' Police continued questioning and obtained a confession. Held: suppressed. A request for counsel is invoked when a reasonable officer would understand the statement to be a request for an attorney, and a suspect's words need not be perfectly clear. Once counsel is requested, all interrogation must stop. Police may not continue by describing evidence or asking questions meant to lead the suspect to talk.
State v. Vandermolen, 49 Fr.3d 261 (Fr. Ct. App. 2017)
After a suspect asked for a lawyer, the officer told him what evidence police had and he then began to talk. Held: the suspect did not initiate further communication because the officer's disclosure was an interrogation-like effort to get him to talk. A suspect initiates communication only when he himself raises a topic generally relating to the investigation without any police prompting. Even if a suspect initiates contact, the State must prove a knowing and intelligent waiver, and the totality of the circumstances, including the suspect's age and experience, is considered.
What graders look for in this task
Graders score a response against these criteria, and every one of them depends on using only the facts in the File and only the rules in the Library, so treat the list as a check for your draft after the first pass and again before you stop writing.
Uses complete-sentence headings and no statement of facts
Argues 'I want a lawyer before I say anything' is a clear invocation under Petrakis
Argues questioning had to stop and the detective's description of evidence was interrogation
Applies Vandermolen to reject the claim that Mr. Orozco initiated communication
Argues that talking only after the evidence pitch was not initiation without prompting
Argues the State cannot prove a knowing and intelligent waiver given his age and inexperience and the missing repeated warnings
Answers the State's ambiguity argument directly
Asks for suppression of the oral and written confession