Prosecutors cannot use a defendant's request for a lawyer as evidence of guilt

New York - A three-judge panel of the 2nd Circuit concluded Monday, however, that the evidence violated Okatan's rights under the Fifth Amendment.

"In order for the privilege to be given full effect, individuals must not be forced to choose between making potentially incriminating statements and being penalized for refusing to make them," Judge Gerald Lynch wrote for the Manhattan-based court.

The panel also took of note of a Supreme Court ruling (Salinas v. Texas) earlier this year, in which it drew a distinction between a defendant's asserting his Fifth Amendment rights to protect himself against self-incrimination, and his merely remaining silent.

That decision had left unanswered whether the prosecution may use a defendant's assertion of his Fifth Amendment rights as part its case, the appellate panel found.

While Okatan did not use the words "Fifth Amendment" or "privilege against self-incrimination," the panel concluded that "a request for a lawyer in response to law enforcement questioning suffices to put an officer on notice that the individual means to invoke the privilege."

Precedent holds this true even when an individual is not in custody, given the "unique role the lawyer plays in the adversary system of criminal justice in this country."

The Supreme Court has said a prosecutor may not comment on a defendant's failure to testify at trial, as such comment would be "a penalty imposed by courts for exercising a constitutional privilege," Lynch wrote

"The same logic governs our decision today," he added. "Use of a defendant's invocation of the privilege imposes the same cost no matter the context in which that invocation is made. ... The Fifth Amendment guaranteed Okatan a right to react to the question without incriminating himself, and he successfully invoked that right. As the First Circuit has observed, allowing a jury to infer guilt from a pre-arrest invocation of the privilege 'ignores the teaching that the protection of the Fifth Amendment is not limited to those in custody or charged with a crime.'"
http://www.courthousenews.com/2013/08/27/okatan.pdf