“Wait, I Have The Right To Consult A WHAT?”

Miramda attorney

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:

Miranda lawyer

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.

Or platypuses.

19 thoughts on ““Wait, I Have The Right To Consult A WHAT?”

  1. You would be amazed at the increasing number of terms and concepts that Americans don’t seem to understand. Call it a lack of intellectual curiosity, laziness or the result of helicopter parenting, it has the same result.

    A friend of mine works at a college. She has stunned me with stories of college students who don’t know their social security numbers (because their moms have the cards) and who have no idea how to fill out an application. In both academia and in the insurance industry, it is not unusual for parents to attempt to do the work for their applicant children – even if the adult child is well into his or her 20s – or try to get medical information, despite HIPAA laws. They try to sign their adult children up for policies, bank accounts and government services, becoming very angry if it’s even suggested that their adult children should be doing this themselves.

    I’ve read stories of employers dealing with parents showing up for interviews with applicants, calling the business to ask questions about benefits or even to check on how their child is doing at the job.

    This hobbling of would-be adults is creating a pseudo-educated and incompetent workforce that cannot possibly take care of itself because it’s never had to, but, boy, do they have really high self-esteem!

    It doesn’t surprise me at all if the young man in the entry above didn’t know what an attorney was. On the other hand, it wouldn’t surprise me if he knew and had no problem pretending to be an idiot for all the world to see if it meant he wouldn’t have to exercise responsibility for his decisions. I’ve run into that type, too.

  2. This lawyer/attorney distinction is a little too pedantic. In my state, there is an Office of LAWYERS Professional Responsibility; we maintain an IOLTA (Interest on LAWYERS Trust Account), probably because an IOATA sounds funny. But, under the pedantic reading, these things make no sense. The culture uses them almost interchangeably.

    In my own bout of pedantry, I explained to another lawyer (read “attorney”) why the phrase, “attorney at law,” was not redundant.


  3. Jack,
    I do recall a case of Law and Order in which the criminal asked for “a lawyer” and they sent in someone from the DA’s office, omitting which side of the law they worked for. It was a clever game of semantics, but I can’t imagine it holding up in court.

  4. Back when you could apprentice for your training in the law (is that still allowed anywhere?), couldn’t you have an attorney who wasn’t a lawyer?

    • I think some states still allow people to “read the law” and then take (and pass) the bar exam and thus become licensed.

  5. Re the Miranda warning cards: I’m sure there is much variation. The wallet card I was issued and the Waiver of Rights forms we utilized used “attorney” consistently throughout. I had never really thought about the distinction before now.

  6. We have moved from “Inflammable” to “Flammable” to an ideogram of a flame serving as a warning on things that will burn rapidly if ignited. Perhaps we also need an ideogram of a lawyer to help people understand their Miranda rights. This could also open up a rich vein of comedy, what would be the ideal ideogram for an attorney?

  7. At least he didn’t have to try to figure out whether he needed a solicitor or a barrister. My favorite barrister, of course, is Rumpole of the Bailey.

  8. As a side note to my fellow Ethics Alarms commenters…

    Ethics Alarms has been a staple of reading for many of us over the years. The blogger Jack Marshall has never asked a thing from any of us over the years. Now it’s time that we give something back that shows the value that his efforts have been and continue to be. Jack inspires discussion about the ethical lessons that can be learned by looking at current events. Other than the automatic fees that GoFundMe charges, 100% of the gifted dollars will be sent directly to Jack Marshall for the purpose of getting a new laptop blogging computer of his choice.

    Ethics Alarms New Laptop Fundraiser

  9. I think a simpler explanation for all of this is that the individual in question has used this dodge successfully in the past. This is the equivalent of “I missed the exam because my grandmother died” excuse. I used to have students regularly try to get extra points by stating that they didn’t know what something in the question was. How am I supposed to know what Kool Aid is or what it looks like? I have had people tell me they didn’t know what Kool Aid, Italian dressing, pizza, baseball, basketball, football, air, or coal were, for example. After having to answer yet another complaint of that type to the Dean, I finally wrote that I expect my students to have a high-school education and have been aware of their environment for the last 18 years or so of their existence. If I have to answer one more of these complaints, I will write that as a formal prerequisite for my courses in the official course catalog and anyone complaining will be removed for not meeting the prerequisite. No more complaints have been forthcoming.

  10. Reading this story, I am reminded of the “Pedro Guerrero Defense:” In September 1999, Guerrero was arrested for trying to buy 33 pounds of cocaine from an undercover agent. In June 2002, he was acquitted of drug conspiracy charges after his attorney argued his client’s intellect prevented him understanding the full implications of the alleged drug deal. Hirsch detailed a portrait of the former major league All-Star, referencing his lack of education and inability to perform simple everyday tasks.

  11. Sort of the Forest Gump of baseball. Anyway I think John Cleese would be an excellent choice to represent me if it was legal. Probably much better than some attorney that somehow managed the bar after his fifty try.

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