The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] Monday that a defendant's request for a lawyer may not be used as evidence of guilt. Tayfun Okatan was convicted on three counts relating to illegally bringing a German citizen into the US. When detained by an officer and asked whether he was attempting to bring someone into the country, Okatan requested a lawyer. The lower court barred the admission of all conversation that took place after his request was denied. The prosecution was, however, permitted to present the request itself as evidence against Okatan. The appeals court ruled that the prosecution's use of his request as evidence against him violated Okatan's Fifth Amendment [text] rights:
The Fifth Amendment guaranteed Okatan a right to react to the question without incriminating himself, and he successfully invoked that right. As the First Circuit has observed, allowing a jury to infer guilt from a prearrest invocation of the privilege "ignores the teaching that the protection of the fifth amendment is not limited to those in custody or charged with a crime."The case has been remanded for further proceedings.
Courts continue to wrestle with the application of the Fifth Amendment. In June the US Supreme Court ruled 5-4 [JURIST report] in Salinas v. Texas [SCOTUSblog backgrounder] that a defendant must expressly invoke the privilege against self-incrimination. JURIST Guest Columnists Hank Asbill, Brian Murray and Andrew Pinson of Jones Day argued last month that the decision left a host of critical questions unanswered [JURIST op-ed].