Devin Malik Cunningham, 21, is accused of the robbery and murder of a 71-year-old man. His lawyers argued that his confession should be excluded from the trial because he didn’t understand the Miranda warning given to him when he was arrested. Specifically, Cunningham claims that testified that he was confused when asked whether he wanted “an attorney,” and that is why he agreed to speak with police. He said that he thought an attorney is a judge.
No wonder he didn’t want to speak to a judge. Judge William Amesbury of Luzerne County, Pennsylvania ruled that his claim was absurd, noting that there was no evidence of a cognitive or learning disability that would support Cunningham’s alleged misunderstanding.. There was also evidence that an arresting officer explained during questioning that an attorney is a lawyer.
I wonder what is the presumed understanding of basic English vocabulary words for an English speaker. Cunningham’s Hail Mary defense, if accepted, might have opened up a brand new avenue for accused criminals, sexual harassers, and those derided as uncivil. I think he may have made a bad choice regarding what he thought “attorney” meant. Why not plead complete confusion: he thought an attorney was a platypus! Or a salve for athlete’s foot!
Is it believable that any English speaker who has lived his whole life in the U.S. hasn’t heard the Miranda warning many times though movies and TV? The case that spawned it is 54 years old, after all.
Technically, an attorney and a lawyer aren’t the same thing. I’ve worked with pedants in my time who expressed frustration that the words were commonly used interchangeably. A lawyer is an individual who has earned a law degree from a law school. An attorney is an individual who has a law degree and has been admitted to practice law in one or more states. Thus, while an attorney must be a lawyer, a lawyer isn’t necessarily an attorney.
I’d say that distinction is now a dead letter, like the distinction between “hopefully” and “one hopes.” It would be an interesting case if an arrested individual asked to see an attorney and instead was allowed to speak with a lawyer only, like a law professor who didn’t have a law license. I wonder if that has ever happened; I can’t find such a case. The text of the warning as formulated by the groundbreaking SCOTUS ruling in 1966 Miranda v. Arizona, which guarantees that the arrested party has a right to consult with an attorney:
The ruling states:
“…The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her.”
Yet Wikipedia has the warning stated like this:
You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.
Not only that, commonly used Miranda Warning cards use “lawyer” rather than “attorney.” Here’s one:
Geraldo Rivera is a lawyer, but not an attorney. Would it have maintained Cunningham’s Miranda rights if he had been allowed to consult with Geraldo? Or how about Julio Iglesias, or John Cleese? They are lawyers too.
But not attorneys. Or judges.