When Can Police Question You Without a Lawyer? – Moran v. Burbine Explained

Welcome back to Lawyer Talk! In this deep-dive episode, host Steve Palmer and law student Troy unpack the realities of a suspect’s right to counsel during police interrogations. Contrasting popular TV drama depictions with what really happens when the police want to question someone in custody.

What Really Happens When the Police Want to Question You?

If you—or someone you care about—gets arrested, you might imagine a lawyer dramatically bursting into the police interrogation room to rescue the day. But as Steve Palmer and Troy explain starting at 00:02, reality is much different. Lawyers are routinely denied access to individuals in custody before formal charges are filed, no matter how many times family members call or how urgently attorneys demand to be present.

Moran v. Burbine: The Case That Changed Everything

Much of the law on this issue stems from the 1986 U.S. Supreme Court case Moran v. Burbine (01:06). Steve Palmer and Troy break down the facts: Burbine was picked up for a breaking and entering, but police suspected him of murder. His sister, unaware of the murder investigation, contacted the public defender’s office, who then called the police to say “Don’t question him, he’s got a lawyer” (02:14). The police lied, saying they wouldn’t interrogate Burbine until the next day. Instead, they immediately questioned him, obtained a waiver of Miranda rights, and got three separate confessions.

Unbeknownst to Burbine, an attorney was trying to intervene on his behalf the entire time. According to Steve Palmer, this led to a key ruling: the Sixth Amendment right to counsel does not attach until formal adversarial proceedings begin—typically at arraignment or when formal charges are filed (04:07). As long as police aren’t violating Miranda requirements and the suspect hasn’t affirmatively requested an attorney, questioning can proceed—with or without lawyer intervention (04:36).

The Real Limits of Your Rights

What about asking for “someone” or saying you “should probably talk to somebody” before answering questions? As Troy and Steve Palmer clarify, that’s NOT enough (07:10). You must clearly state, “I want a lawyer.” Only then are police legally required to stop questioning (08:50).

Even if police violate Miranda, the remedy is limited: your statements get suppressed and can’t be used in the prosecution’s case-in-chief. However, cops can use what you tell them to hunt for other evidence—and if you take the stand at trial and your story changes, those suppressed statements can sometimes be used to impeach you (06:03, 06:51).

After Formal Charges: A Different Ballgame

Once formal charges have been filed, and a lawyer enters an appearance, everything changes (10:23). Any further police attempts to talk to the suspect—about the crime in question—violate the Sixth Amendment and result in evidence suppression, regardless of a Miranda waiver.

Takeaways

• Don’t trust TV: Lawyers can’t simply storm into the interrogation room at the police station and stop questioning.
• Miranda Rights: You must say, “I want a lawyer.” Anything short of that leaves you vulnerable to continued questioning (08:50).
• Suppression is limited: Police can’t use suppressed statements directly, but indirect, “derivative” evidence found as a result can often be used (06:07).
• After indictment/charges: Your right to counsel is firmly established, and any police interview must go through your attorney (10:23).

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Recorded at Channel 511.

Stephen E. Palmer, Esq. has been practicing criminal defense almost exclusively since 1995. He has represented people in federal, state, and local courts in Ohio and elsewhere.

Though he focuses on all areas of criminal defense, he particularly enjoys complex cases in state and federal courts.

He has unique experience handling and assembling top defense teams of attorneys and experts in cases involving allegations of child abuse (false sexual allegations, false physical abuse allegations), complex scientific cases involving allegations of DUI and vehicular homicide cases with blood alcohol tests, and any other criminal cases that demand jury trial experience.

Steve has unique experience handling numerous high-publicity cases that have garnered national attention.

For more information about Steve and his law firm, visit Palmer Legal Defense.

Copyright 2026 Stephen E. Palmer - Attorney At Law

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All right, so look, here we are at lawyer talk again. We're going to pick up where we left off regarding the TV versus reality clip that we did where the lawyer was barged in the middle of a custodial interrogation where somebody was in custody and being interrogated. I think it was about like a one punch murder type thing, or. It wasn't one punch murder, but some guy. I think it was Landman, anyway. And I made some content here that said, look, it just doesn't happen that way. If I go, if my client, if I learn, say, the family calls me and I learned that my client has been arrested and is behind the locked doors of the Columbus Police Department. I ain't getting in.

No.

Ain't gonna let me in. People hate this. And I agree. I'm not sure I like it either. People hate it. Um, so what we're going to do is, you know, sometimes I just sort of, off the top of my head, talk about stuff that I have taken for granted for years, because I've been doing it for years. But we're going to break down the case law. So people.

So it's sort of understood how this comes about. Moran versus Burbine. It was a U.S. supreme Court case for those geeks out there. 475 U.S. 412, 1986. I believe Sandra Day O' Connor wrote the opinion in a 6, 3 decision. Mr.

Henricksen, please stand up and give us the facts of the case. They do that to you in some law schools, not where you go. So what are the facts of the case?

Burbine is caught. Oh, sorry.

Burbine's a defendant.

Burbine's a defendant. He decides to commit a B and E, do a little bit of robbery.

So B and E in our parlance, means breaking and entering.

And after the robbery, the police unfortunately catch him. And whenever they catch him, they realize, huh, this guy is actually suspect by catch.

They find him, they take him into custody, they take him to the cop house, the police department, where they begin to investigate and interrogate, question him.

Well, they first are sitting there like, I think this guy is actually a suspect in a murder case.

Okay, so Burbine is not just a breaking and entering case or breaking an enterer. He is also a potential murderer.

And at the same time, across town, his sister finds out about the burglary arrest and decides to call the public defender's office smartly. Yeah, great sister. She doesn't know anything about the murder allegations. And then the public defender's office then reaches out to the police department and says, hey, I represent Burbine and the robbery. Are you planning on questioning him or doing anything or line up or anything like that? And the police say, no. They just tell the lawyer that.

And she's saying, he's represented. Don't talk to him.

And so the police, keeping to their word, interrogate him. Immediately after. This interrogation, Bourbon puts up a good fight, but then signs three confessions.

Yeah. And the police told the attorney they would not interview Burbine until the next day. Well, then they immediately proceed to interview him, not just about the breaking and entering, but also obtain some confessions about the murder after they read him his Miranda rights. And after this dude waived his Miranda rights, he confesses.

Yeah, he had no idea he had an attorney the entire time.

All the while, there's an attorney saying, let me in, let me in. The court says.

The court says that's fine. They didn't have to. There wasn't a Sixth amendment violation here. Four Fifth.

I believe Justice Sandra Day o' Connor ruled that while police behavior was unprofessional. This is AI by the way. So you know it's reliable that while police behavior was unprofessional, it did not deprive the defendant of knowledge essential to his fifth amendment rights. As Miranda does not require the police to inform suspects of an attorney's call. And where the rubber meets the road on this is the ruling established that the sixth amendment right to counsel does not attach until, quote, formal. It's usually formal adversarial proceedings, but they're saying formal charges are initiated, and the police deception towards an attorney does not invalidate a suspect's waiver of his rights. So not only does it not invalidate the suspect's Miranda waiver, it does not violate the right to counsel, because, oddly enough, disagree with me as you may, and Disagree with Moran vs Burbine as you may. The right to counsel does not attach until formal adversarial proceedings begin.

And I believe that's at the arraignment stage or at the preliminary.

Yeah.

So it hasn't happened yet. This sucks. Yeah, it's very frustrating. So I have had these calls at night where the family's like, look, they took him into custody. I said, did you tell that guy to keep his freaking mouth? It's like, oh, yeah, we told him. We told him. We told him. We told him.

We told him. Now the comments we're getting on this is, I'm an idiot. Don't hire this guy, whatever. I don't care. But I want to clear up some confusion if Burbine would have said, I want my lawyer here. One of two things lawfully, because there's other unlawful things that can happen. One of two things lawfully would have to happen. Either a.

I said one of two. So either one, we'll use letter. We'll use numbers, not letter. Either one, the police have to immediately cease the interrogation immediately, and I guess that has to happen anyway. Or two, they have to let the lawyer in and be part of the conversation if that's what the lawyer advises the client to do. I hardly ever would do that, by the way. So if my client says, I want a lawyer and the police keep interrogating my client, the remedy then becomes a Miranda violation, and the remedy is suppression. And someone of the commentators is absolutely correct.

It's not like it's a federal offense. But the police then can't use the statements obtained here. That would be a confession to murder. Now, there's certain bells you can't unring. So if you told the police I did it, well, guess what they're going to do? They're going to go find evidence. Now, they can't say, but they can't go into trial later and say, troy came in, we arrested him and he confessed to doing this murder. They can't use that as evidence against you, but they're going to go make what we call derivative use of that. They're going to go find whatever they can because now they have a suspect and now they're going to look for physical evidence, but they don't have any.

Sorry, you can't use a statement. There's a couple exceptions. One we just talked about. The other is if you get on the witness stand and lie and say, I didn't commit the crime, say they find evidence to charge you and put you on trial, then you get up on the stand, you make up some song and dance. Hey, by the way, I was in Arkansas. I wasn't even in Rhode Island. I didn't commit this murder. Well, that's funny, Mr.

Henderson, because you told the police on such and such a date that you did what say you now?

It's a hard one to dig out

that so they can use it to impeach you if you lie again like this or not. I'm not commenting with whether this is good, bad. It just is. It's what it is.

I think one thing you mentioned was you want to speak to an attorney. I think a problem I see in case law, and we've even had clients of ours who say, I'D like to speak to somebody or I'd like to speak with, like I think I should talk to someone. And they don't clarify that I want to speak to an attorney. And the case law is.

Unfortunately, the deck is stacked against you. Let me say that again. The deck is stacked against you. I've had clients recently, they actually asked the police, should I talk to somebody before we go any further? Well, we just want to get your side of the story. We're just hoping that if we don't get your side of the story, young defendant, then we'll just have to go with her side of the story. And if that's all we have, then I guess that's what we have. Well, maybe I could talk to somebody and talk to you later. Well, by then we're just going to act on her side of the story.

So sort of now's your time. I mean, if you don't want to talk to us, that's up to you, but. And what they're doing is they're hanging all sorts of inferences out there. Like if you want to get out of jail today, which most people don't like being there, then you better talk to us. If you don't tell us what your side of the story and we're going to go with hers, and you're going to be strung up by your short hairs. They make it. It's sort of like buying a car. It's like, look, this deal is only good for today.

It's urgent, you have to talk. And if you don't, the world's gonna crash down. It's never true. And if you think it's true, it's not. And even if it is true, it's not. It's never true. If you're looking for a general rule, don't talk to the police. Now what you're saying is asking to talk to somebody is at least in most cases, not enough.

You have to affirmatively say, I want a lawyer, I want a lawyer present. Then the police have to stop. They have to stop. And if they don't stop, there's a Miranda violation. Now let's talk about something else. I represented a guy who was indicted on a 18 count. This is one of my first jury trials. I was a young whippersnapper like you, actually still in law school.

I had my license to go, whatever. I just passed the bar as the case was pending and it was a media case, high publicity. I tried the case. It was 22 counts or 18 counts of robbery, bunch of burglaries and gun specification, a whole nine yards. I hung it, got it hung. So I think they. At some point in that process. I'm trying to figure out how it all happened.

But the police went after indictment, maybe. Maybe there was a supplemental. The police went and talked to my client in jail. I had already entered my appearance of counsel. I think I'd already made an appearance at some of the proceedings. And they got some statements from my guy. And I don't know why they did it or what they were thinking, but they got suppressed. Not because of a Miranda problem, although there was probably a Miranda problem also.

But why? I don't know. It violated my client's Sixth Amendment right to counsel. The right to counsel had attached. I was lawyer of record. I represented the guy. He was in custody at the jail, and the police went and talked to him about something. It wasn't a huge thing. They were like checking boxes on something.

But I got it suppressed because the police violated my client's right to counsel. Formal adversarial proceedings had begun, and Miranda waivers wouldn't have mattered. None of it would have mattered because he had a lawyer and the Sixth Amendment had attached. The cases we're talking about has not happened yet. So I don't like it. I think if Sister's calling and says, this guy's got a lawyer, let the police know. Or maybe you could even draw a line like this. If the public defender is calling and saying, I represent this guy, I want the interrogation to stop.

I think it ought to stop. But they don't have to. They can lie, they can cheat, they can do whatever they want, and they can procure their confession. They can't violate Miranda in doing it. And if the client asks for a lawyer and is affirmative about that, then they have to stop. But like in Burvine, the client waived Miranda and gave a statement, confessed a murder. And at least Sandra Day on that day felt that that deceptive and unprofessional. It may be, but.

But it didn't violate a right to counsel, and it didn't violate Miranda because the guy waved his Miranda warnings. So look, TV versus reality. That's the breakdown. That's the case. And there's lots of cases after that one. Go do your research. If you want to kick it around with me, call in, send a comment, do whatever. Call me an idiot, I don't care.

It's fun, and we'll chop it up. So lawyer talk, off the record, on the air.