When has a defendant invoked?

After Davis v. United States, 512 U.S. 452 (1994) (holding an invocation of the right to counsel must be unambiguous), only Delaware, Hawaii, New Jersey and Texas have declined to follow the federal ruling, holding that their constitutions provide more protection.

Delaware held that its decision to afford more protection also applies to the right to remain silent. Draper v. State, 49 A.3d 807, 810 (Del. 2002).

New Jersey clarified after Berghuis v. Thompkins, 130 S.Ct. 2250 (2010)(holding that right to remain silent must also be unambiguous) that its constitution also provided more protection for invocation of right to remain silent.

It seemed as though the issue was settled in Washington that article 1, section 9 of the Washington Constitution (no person shall be compelled to provide evidence against himself) is coextensive with the 5th amendment. State v. Earls, 805 P.2d 211 (Wa. 1991). However, in the nineteen years since Davis and the three years since Berghuis, the Washington court has faced this issue twice.

First, in State v. Aten, 130 Wash.2d 640, 927 P.2d 210 (1996), the court was unevenly split which led to a conflict in the divisions. The court clarified in State v. Radcliffe, 194 P.3d 250, 254 (Wash. 2008), that Davis is the authority under the federal constitution. The defendant argued that the WA constitution provided greater protection than the federal constitution, but failed to raise this issue at trial or in the court of appeal, so the court did not address it.

For now, it is safe practice to tell clients they must unambiguously invoke both the right to remain silent and the right to counsel.

But, will anyone be brave enough to make a claim under the WA constitution?

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