Miranda – What To Say And What Not To Say

In a prior post we provided an overview of what are commonly referred to as “Miranda rights”. In short, this means that prior to a custodial interrogation, law enforcement must inform the suspect that he/she has the right to remain silent, and they have the right to have an attorney present. If the suspect cannot afford an attorney, one will be appointed for the suspect. The suspect is then asked if he/she understands those rights and is asked if he/she wishes to “invoke” those rights. i.e. Does the suspect wish to not answer any questions and he/she wishes to have an attorney present?

This would appear to be pretty straightforward. However, as we noted in our prior post, there have been numerous court decisions interpreting virtually every aspect of Miranda. One area that would appear to be simple, but which has spawned a lot of the court decisions is whether or not the suspect has properly invoked their rights under Miranda.

In Davis v. United States, 514 U.S. 452 (!994), the United States Supreme Court held that a suspect’s response seeking to invoke Miranda rights must be “clear and unambiguous”. In the case the defendant Davis, after being read his Miranda rights said “Maybe I should talk to a lawyer”. Law enforcement sought clarification from Davis and he finally responded that he was not asking for a lawyer. The questioning then continued. The Supreme Court ruled that Davis had not made a clear and unambiguous request for a lawyer, i.e. the mere mention of “a lawyer” is not enough.

One of the most famous (or infamous cases) is a case from Louisiana, State v. Demesme. Twenty year old Warren Demesme was being questioned in connection with 2 sexual assault cases involving minors. Records indicate he volunteered for both interviews, which were recorded.  During the second interview he allegedly made incriminating statements to the police. The recordings show that he admitted one of the assaults but denied the other. But before making the admission, he alleged he asked for a lawyer, however no attorney was provided.

 He later moved to have the statements ruled inadmissible at trial.  He argued that under Miranda any statements he made after his request for a lawyer was denied should be excluded from the trial. The state argued that his request for a lawyer was nonsensical or ambiguous or both so therefore there was no Miranda violation. The trial court ruled against him and said the statements were admissible at trial. He appealed that decision through the Louisiana appellate courts, including the state supreme Court. This latter court held that his request for an attorney was not clear and unambiguous. The United States Supreme Court refused to hear his case.

So what exactly did Mr. Demesme say when he asked for an attorney? The transcript of the interview contains the following:

        “If y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause that is not what’s up.”

The Louisiana Supreme Court ruled against Demesme by a 6-1 vote. 5 of the 6 judges did draft a written opinion explaining their decision. One, however, did. In that opinion, the judge wrote,

        “In my view, the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel that warrants termination of the interview…”

There has been a lot of commentary about this case. Most seem to agree that the defendant was using the slang term “dawg” which is akin to “dude” or “bro” and that a comma after the word lawyer (along with the spelling) would have helped. What is the lesson to be learned here? Words matter! Below is a discussion of how to properly invoke your rights. Do not ad lib, or use slang or use more words than necessary . Be direct, to the point and once you do it, stop talking.

WHAT YOU SHOULD DO. We strongly suggest that you properly and fully invoke your rights when you are asked. To do so say “I will not answer any questions and I want a lawyer now”. DO NOT use phrases like “Do I need a lawyer?” What will a lawyer do for me?” and so forth.

Do not forget, one of the rights you have invoked is the right to remain silent. Make sure you remain silent. If after you have invoked this right you reinitiate contact with law enforcement, you have now waived your right and the interrogation can start again. See, e.g. State v. Gafford, 415 So.3d 1224 (Fla. 6^th DCA, 2025).

While it may not be ok, interrogators have been known to try various tactics to get you waive your rights. They will say things such as “We just want to get your side of the story”, “Maybe you can tell us things that will mitigate your situation”, “Once lawyers get involved, we can’t talk to you”, “It could be hours until a lawyer can get here”. Also remember, law enforcement can legally lie to you e.g. “We talked to so and so and they told us what you did”, “We found your dna/fingerprints/blood at the scene” and other things to heighten your stress.

A custodial interrogation can be a very stressful setting. Your interrogators are trained for this, you are not. Your interests are best served by invoking your right to remain silent, adhering to it and getting advice from an attorney.

If you find yourself facing criminal charges, your personal liberty is at stake. Call the Kessler Law Firm for experienced, professional and assertive representation. Given the stakes, you should settle for nothing less.