Fifteen Eighty Four

Academic perspectives from Cambridge University Press


Invoking Counsel in the United States: A Game Facilitated by the Law

Marianne Mason

My work as a forensic linguist provided a window into the interrogation room. One of the cases in which I consulted was a criminal appellate case in which the defendant’s invocation for counsel was deemed equivocal. The defense contended that the defendant had indeed invoked counsel unequivocally after being read his Miranda rights and hence all subsequent statements obtained during police questioning should have been suppressed. As a linguist, I was intrigued as to the law’s treatment of equivocal versus unequivocal invocations. The suspect in the case uttered Can I get a lawyer?. This is a type of request commonly used in talk. It is formulated indirectly, unlike a direct formulation such as Get me a lawyer, but its intent, in context, is to signal a desire for counsel. In English, and other languages, it is common for speakers to formulate requests using interrogatives (e.g., Can you pass the salt?) or other less than direct formulations (e.g., I think I want X) in order to achieve a communicative goal and move the talk forward. So, what is the controversy? Why did the law make this seemingly arbitrary distinction? To address this question, I decided to ‘dig’ further—beyond the case studies for which I consulted. The task shifted from a qualitative, case by case, analysis to a data driven one. This took me down the path of reviewing over 300 federal appellate criminal cases in which defendants appealed their convictions on the grounds that their constitutional rights had been violated.

The law and police interrogation

What is known about custodial settings and police-lay person exchanges is often mired by a lack of knowledge of the law. A problem that permeates most contexts mediated by the law. This extends to the Miranda warning, per Miranda v. Arizona (1966). The law states that suspects must be Mirandized and they must waive their right to silence/counsel prior to the start of custodial interrogation. In popular culture, where many of us have been exposed to a police interrogation, the Miranda rights seem to be expediently delivered and invocations for counsel scrupulously honored. What happens in an actual police interrogation is often not consistent with this depiction. The law reframed the Miranda warnings to a difficult right to invoke, particularly post Davis v. United States (1994). In this ruling, the Supreme Court created a new standard requiring invocations for counsel to be unequivocal/unambiguous (albeit undefined) to cease an interrogation, as determined by law enforcement. In essence, Davis made police interrogators the gatekeepers of the Miranda rights. The law, however, does not require law enforcement to inform suspects of the unequivocalness standard, leaving them often to rely on their understanding of talk in institutional settings, which in my data often fails them, and what they may know about police interrogation from other sources, such as popular culture (e.g., Law and Order).

The game of police interrogation

In the United States, popular police interrogation techniques, such as the Behavior Analysis Interview (Reid Technique), place a premium on obtaining statements from suspects. This interview process often starts with police officers assessing the ‘guilt’ of suspects by analyzing their verbal and nonverbal responses. Once the interrogators establish the ‘guilt’ of the suspect, the interrogation stage begins. In this stage, interrogators use both maximization and minimization. The former involves presenting the case against the suspect as being full proof (e.g., Your friend told us you were there). The implicit message is that the crime is serious and being cooperative is portrayed as the only possible way to mitigate the direness of the suspect’s situation. The latter involves presenting the suspect with a theme that reduces the import of the crime and, at times, creating a sense of empathy for the suspect, whether true or false (e.g., If I were you, I would have been angry too). Both strategies have the same goal: get the suspect to provide a confession.

When the law and police interrogation techniques come together, they create the perfect situation for a game, which I call the invocation game of police interrogation. In the invocation stage of police interrogation, suspects are read their Miranda rights and they have the right to waive such rights or speak to police. By law, the waiver of rights must be provided freely, knowingly, and voluntarily. What happens in practice, however, puts into question the voluntariness of the waiver of the invocation.

The legal standard set in Davis coupled with popular interrogation techniques that place a premium on obtaining statements from suspects give way to a strategic game of shifting a suspect’s choice: to invoke or to talk. Using a novel approach to modeling police interrogation as a type of game, or hypergame, the voluntariness of a suspect’s waiver can be tested by showing that the suspect is playing a surface game while the interrogator is playing a different (hyper) game to shift the suspect’s preferences to their own (i.e., waive counsel). This discursive process is facilitated by the suspect’s failure of game form recognition. The suspect is unable to recognize the interrogators’ strategy to shift their preference from invoking to not invoking counsel. The invocation game hence lies outside of rational choice theory, which challenges the assumptions behind rational utility maximization, framed in voluntariness, noted in numerous court rulings, particularly after Davis. Furthermore, it puts a spotlight on the need for reforming police interrogation in the United States.

Police interrogation reform: from a game to information gathering interviews

The invocation game shows us that legal and police interrogation reforms are needed in the United States. Knowing that police interrogation can be coercive, deceptive, and/or manipulative is part of the story. Understanding the significant role the law plays in shaping what happens in the interrogation room tells us that without changes to the law there may not be sufficient incentives for police to change how invocations for counsel are treated during questioning even if alternate police interviewing techniques are widely adopted, such as the PEACE method. The law needs to change in order to have comprehensive police interrogation reform in the United States. Hopefully, these legal changes will reduce the travesty of false confessions, address the treatment of vulnerable populations subjected to questioning (e.g., juveniles, people with cognitive/intellectual disabilities, and L2 speakers of English), improve the accuracy and evidentiary quality of suspects’ statements, and lead to the professionalization of police interviewers.

Police Interrogation, Language, and the Law by Marianne Mason

About The Author

Marianne Mason

Marianne Mason is an Associate Professor at James Madison University. Notable publications include The Discourse of Police Interviews (co-edited, 2020) and Courtroom Interpreting (...

View profile >

Latest Comments

Have your say!