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Connecticut Supreme Court Rejects Davis and Announces State Constitution Requires Police to Clarify Ambiguous Request for Counsel Before Continuing Interrogation

by Douglas Ankney

The Supreme Court of Connecticut held that the state constitution requires police to clarify an ambiguous request for counsel before continuing to interrogate a suspect.

In 2013, Robert John Purcell was arrested on multiple counts of sexual assault and risk of injury to a child. After Purcell signed the Miranda waiver, detective Michael Zerella asked him if he knew why he was arrested. Purcell told Zerella that he had received a letter from the Department of Children and Families (“DCF”) informing him that he was being investigated for allegations of abusing his nephew. When the detective asked Purcell what he had told the DCF, Purcell replied, “Well, I asked my lawyer, and he said, well, just not to, I, I that’s, I think that’s altogether wrong, but that’s what he said.” He added, “[M]y lawyer knows what’s going on, you know? But, he says don’t talk, I don’t talk.” Purcell vehemently denied ever having sexual contact with his nephew. When asked if there were any moments his nephew could have misconstrued as being sexual, Purcell answered, “Well, yes, there’s what, well, I, I, my lawyer said not to talk about it but, no....” The police told Purcell, “We’ll leave it up to you. It’s up to you.” 

Detectives told Purcell his nephew had a naked picture of him. Zerella also told Purcell that “[T]omorrow, when you go into court, you’re gonna look at a judge and a prosecutor ... and they’re gonna look at all these allegations against you.” Zerella said the judge would only know Purcell as a “mean individual” and as a “predator,” but “now” was the time for Purcell to tell his side of the story. Purcell stated that “if my lawyer was here, ... we could talk,” and “I’m supposed to have my lawyer here.” Zerella told Purcell that “after today you’re never gonna be able to give me or any other cop your story ... a judge is gonna look at ... some serious charges against you. You could go to jail for the rest of your life.” Purcell then agreed to talk. He neither made no further mention of counsel nor admitted to any of the acts alleged against him.

Purcell filed a pretrial motion to suppress his statements. The trial court found that Purcell did not make an unambiguous request for counsel and denied his motion. 

A jury acquitted Purcell of the sexual offenses but found him guilty of risk of injury to a child. Purcell argued on appeal, among other things, that his suppression motion was improperly denied. The Appellate Court affirmed his convictions, and the Supreme Court granted his petition for further review.

The Court observed that Purcell did not make an “unambiguous” request for counsel as defined by Davis v. United States, 512 U.S. 452 (1994). According to Davis, police must cease questioning a suspect only after he makes an unambiguous request for counsel. Statements such as “if my lawyer was here” or “my lawyer should be here” are ambiguous because they can mean a person is willing to talk even though the lawyer is absent.

The Court concluded that Purcell’s “statements were not the type of expression necessary under Davis to require interrogation to cease.” Thus, his motion to suppress was properly denied.

However, that didn’t end the analysis. As the Court noted, “the federal constitution sets the floor, not the ceiling, on individual rights.” It then turned its attention to Article I, § 8, of the Connecticut Constitution and explained that “the issue we decide is whether to adopt an additional layer of prophylaxis to prevent a significant risk of those vital constitutional rights protected under Miranda.” In doing so, the Court rejected the reasoning and conclusion of Davis. 

According to the Court, the major flaw with Davis is that “almost 70 percent of defendants questioned in one study” were unaware of the “precision required to request counsel and stop interrogation.” That is, the overwhelming majority of suspects do not know how to unambiguously invoke their Miranda rights.

Another flaw with Davis is that minorities and other groups who feel powerless use speech patterns that are not assertive and preface their statements with “if” and “should” when confronted by police, according to research cited by the Court. These are the very groups for which the Miranda warnings were meant to protect, but often fail to do so because of the requirements demanded by Davis. 

The Court stated “the reasoning of the Davis majority [lacks] a sound basis in legal doctrine or law enforcement objectives” and concluded that Davis “does not adequately safeguard Miranda’s right to the advice of counsel during custodial interrogation.” 

It then announced the implementation of the so-called “stop and clarify” approach to the invocation of the right to counsel and held, quoting State v. Anderson, 553 A.2d 589 (Conn. 1989), that under the Connecticut Constitution “if a suspect makes an equivocal statement that arguably can be construed as a request for counsel, interrogation must cease except for narrow questions designed to clarify the earlier statement and the suspect’s desire for counsel.” The Court further instructed that police can simply choose to cease questioning upon an ambiguous request for a lawyer. 

Applying the newly announced rule to the present case, the Court concluded that Purcell’s rights under Article I, § 1, of the Connecticut Constitution were violated by continuing to question him after he “ambiguously invoked his right to have counsel present.”

Accordingly, the Court reversed the judgment of the Appellate Court and remanded the case for a new trial. See: State v. Purcell, 203 A.3d 542 (Conn. 2019).


Editor’s note: The Court provides a thorough examination of ambiguous invocation of the right to counsel and discusses numerous cases from multiple jurisdictions. Its opinion serves as a good reference for anyone researching this topic. 

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State v. Purcell



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