Hastings Constitutional Law Quarterly


Samira Sadeghi


A suspect being interrogated by the police suddenly says, Maybe I should talk to a lawyer. What legal effect, if any, should this statement have? What procedure should the police follow upon such an invocation? The United States Supreme Court in Davis v. United States adopted a rigorous standard for suspects invoking their Miranda rights.

This Comment criticizes the Court's adoption of the so-called threshold of clarity approach and its conclusion that only clearly asserted invocations of counsel trigger any protection for suspects. The Court's heightened requirement of clarity unfairly places a higher burden upon suspects in an already intimidating situation, and reduces suspects' Fifth Amendment rights to mere semantics. Moreover, the decision ignores cultural and sociolinguistic differences, and penalizes the relatively powerless sectors of society whose pronounced use of indirect speech patterns often lead to seemingly ambiguous statements.

This Comment then analyzes cases decided since Davis and concludes that the Court's standard has had a highly detrimental impact upon suspects' rights to counsel and even silence during a custodial interrogation. This Comment proposes that state courts treat the decision as a floor and provide broader rights to their citizens under their respective state constitutions.