DAVIS v. UNITED STATES(1994)
Petitioner, a member of the United States Navy, initially waived his rights to remain silent and to counsel when he was interviewed by Naval Investigative Service agents in connection with the murder of a sailor. About an hour and a half into the interview, he said, "Maybe I should talk to a lawyer." However, when the agents inquired if he was asking for a lawyer, he replied that he was not. They took a short break, he was reminded of his rights, and the interview continued for another hour, until he asked to have a lawyer present before saying anything more. A military judge denied his motion to suppress statements made at the interview, holding that his mention of a lawyer during the interrogation was not a request for counsel. He was convicted of murder, and, ultimately, the Court of Military Appeals affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. SCALIA, J., filed a concurring opinion. SOUTER, J., filed an opinion concurring in the judgment, in which BLACKMUN, STEVENS, and GINSBURG, JJ., joined. [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 1]
JUSTICE O'CONNOR delivered the opinion of the Court.
In Edwards v. Arizona, 451 U.S. 477 (1981), we held that law enforcement officers must immediately cease questioning a suspect who has clearly asserted his right to have counsel present during custodial interrogation. In this case, we decide how law enforcement officers should respond when a suspect makes a reference to counsel that is insufficiently clear to invoke the Edwards prohibition on further questioning.
Pool brought trouble - not to River City, but to the Charleston Naval Base. Petitioner, a member of the United States Navy, spent the evening of October 2, 1988, shooting pool at a club on the base. Another sailor, Keith Shackleford, lost a game and a $30 wager to petitioner, but Shackleford refused to pay. After the club closed, Shackleford was beaten to death with a pool cue on a loading dock behind the commissary. The body was found early the next morning.
The investigation by the Naval Investigative Service (NIS) gradually focused on petitioner. Investigative agents determined that petitioner was at the club that evening, and that he was absent without authorization from his duty station the next morning. The agents also [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 2] learned that only privately owned pool cues could be removed from the club premises, and that petitioner owned two cues - one of which had a bloodstain on it. The agents were told by various people that petitioner either had admitted committing the crime or had recounted details that clearly indicated his involvement in the killing.
On November 4, 1988, petitioner was interviewed at the NIS office. As required by military law, the agents advised petitioner that he was a suspect in the killing, that he was not required to make a statement, that any statement could be used against him at a trial by court-martial, and that he was entitled to speak with an attorney and have an attorney present during questioning. See Art. 31, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 831; Mil.Rule Evid. 305; Manual for Courts-Martial A22-13 (1984). Petitioner waived his rights to remain silent and to counsel, both orally and in writing.
About an hour and a half into the interview, petitioner said, "Maybe I should talk to a lawyer." App. 135. According to the uncontradicted testimony of one of the interviewing agents, the interview then proceeded as follows:
At his general court-martial, petitioner moved to suppress statements made during the November 4 interview. The military judge denied the motion, holding that "the mention of a lawyer by [petitioner] during the course of the interrogation [was] not in the form of a request for counsel and . . . the agents properly determined that [petitioner] was not indicating a desire for or invoking his right to counsel." Id., at 164. Petitioner was convicted on one specification of unpremeditated murder, in violation of Art. 118, UCMJ, 10 U.S.C. 918. He was sentenced to confinement for life, a dishonorable discharge, forfeiture of all pay and allowances, and a reduction in rank to the lowest pay grade. The convening authority approved the findings and sentence. The Navy-Marine Corps Court of Military Review affirmed. App. to Pet. for Cert. 12a-15a.
The United States Court of Military Appeals granted discretionary review and affirmed. 36 M.J. 337 (1993). The court recognized that the state and federal courts have developed three different approaches to a suspect's ambiguous or equivocal request for counsel:
Although we have twice previously noted the varying approaches the lower courts have adopted with respect to ambiguous or equivocal references to counsel during custodial interrogation, see Connecticut v. Barrett, 479 U.S. 523, 529 -530, n. 3 (1987); Smith v. Illinois, 469 U.S. 91, 96 , n. 3 (1984) (per curiam), we have not addressed the issue on the merits. We granted certiorari, 510 U.S. ___ (1993), to do so.
The Sixth Amendment right to counsel attaches only at the initiation of adversary criminal proceedings, see United States v. Gouveia, 467 U.S. 180, 188 (1984), and, before proceedings are initiated, a suspect in a criminal investigation has no constitutional right to the assistance of counsel. Nevertheless, we held in Miranda v. Arizona, 384 U.S. 436, 469 -473 (1966), that a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that the police must explain this right to him before questioning begins. The right to counsel established in Miranda was one of a "series of recommended `procedural safeguards' . . . [that] were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected." Michigan v. Tucker, 417 U.S. 433, 443 -444 (1974); see U.S. Const., Amdt. 5 ("No person . . . shall be compelled in any criminal case to be a witness against himself"). * [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 5]
The right to counsel recognized in Miranda is sufficiently important to suspects in criminal investigations, we have held, that it "requir[es] the special protection of the knowing and intelligent waiver standard." Edwards v. Arizona, 451 U.S., at 483 . See Oregon v. Bradshaw, 462 U.S. 1039, 1046 -1047 (1983) (plurality opinion); id., at 1051 (Powell, J., concurring in judgment). If the suspect effectively waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to question him. North Carolina v. Butler, 441 U.S. 369, 372 -376 (1979). But if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 6] been made available or the suspect himself reinitiates conversation. Edwards v. Arizona, supra, at 484-485. This "second layer of prophylaxis for the Miranda right to counsel," McNeil v. Wisconsin, 501 U.S. 171, 176 (1991), is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights," Michigan v. Harvey, 494 U.S. 344, 350 (1990). To that end, we have held that a suspect who has invoked the right to counsel cannot be questioned regarding any offense unless an attorney is actually present. Minnick v. Mississippi, 498 U.S. 146 (1990); Arizona v. Roberson, 486 U.S. 675 (1988). "It remains clear, however, that this prohibition on further questioning - like other aspects of Miranda - is not itself required by the Fifth Amendment's prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose." Connecticut v. Barrett, supra, at 528.
The applicability of the "`rigid' prophylactic rule" of Edwards requires courts to "determine whether the accused actually invoked his right to counsel." Smith v. Illinois, supra, at 95 (emphasis added), quoting Fare v. Michael C., 442 U.S. 707, 719 (1979). To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. See Connecticut v. Barrett, supra, at 529. Invocation of the Miranda right to counsel "requires at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." McNeil v. Wisconsin, supra, at 178. But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer, in light of the circumstances, would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. See ibid. ("the likelihood that a suspect would wish counsel to be present is not the test for applicability of [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 7] Edwards"); Edwards v. Arizona, supra, at 485 (impermissible for authorities "to reinterrogate an accused in custody if he has clearly asserted his right to counsel") (emphasis added).
Rather, the suspect must unambiguously request counsel. As we have observed, "a statement either is such an assertion of the right to counsel or it is not." Smith v. Illinois, 469 U.S., at 97 -98 (brackets and internal quotation marks omitted). Although a suspect need not "speak with the discrimination of an Oxford don," post, at 12 (SOUTER, J., concurring in judgment), he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer, in the circumstances, would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect. See Moran v. Burbine, 475 U.S. 412, 433 , n. 4 (1986) ("the interrogation must cease until an attorney is present only [i]f the individual states that he wants an attorney") (citations and internal quotation marks omitted).
We decline petitioner's invitation to extend Edwards and require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney. See Arizona v. Roberson, supra, at 688 (KENNEDY, J., dissenting) ("the rule of Edwards is our rule, not a constitutional command; and it is our obligation to justify its expansion"). The rationale underlying Edwards is that the police must respect a suspect's wishes regarding his right to have an attorney present during custodial interrogation. But when the officers conducting the questioning reasonably do not know whether or not the suspect wants a lawyer, a rule requiring the immediate cessation of questioning "would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity," Michigan v. Mosley, [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 8] 423 U.S. 96, 102 (1975), because it would needlessly prevent the police from questioning a suspect in the absence of counsel even if the suspect did not wish to have a lawyer present. Nothing in Edwards requires the provision of counsel to a suspect who consents to answer questions without the assistance of a lawyer. In Miranda itself, we expressly rejected the suggestion "that each police station must have a `station house lawyer' present at all times to advise prisoners," 384 U.S., at 474 , and held instead that a suspect must be told of his right to have an attorney present, and that he may not be questioned after invoking his right to counsel. We also noted that, if a suspect is "indecisive in his request for counsel," the officers need not always cease questioning. See id., at 485.
We recognize that requiring a clear assertion of the right to counsel might disadvantage some suspects who - because of fear, intimidation, lack of linguistic skills, or a variety of other reasons - will not clearly articulate their right to counsel although they actually want to have a lawyer present. But the primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves. "[F]ull comprehension of the rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process." Moran v. Burbine, supra, at 427. A suspect who knowingly and voluntarily waives his right to counsel after having that right explained to him has indicated his willingness to deal with the police unassisted. Although Edwards provides an additional protection - if a suspect subsequently requests an attorney, questioning must cease - it is one that must be affirmatively invoked by the suspect.
In considering how a suspect must invoke the right to counsel, we must consider the other side of the Miranda equation: the need for effective law enforcement. Although the courts ensure compliance with the Miranda [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 9] requirements through the exclusionary rule, it is police officers who must actually decide whether or not they can question a suspect. The Edwards rule - questioning must cease if the suspect asks for a lawyer - provides a bright line that can be applied by officers in the real world of investigation and interrogation without unduly hampering the gathering of information. But if we were to require questioning to cease if a suspect makes a statement that might be a request for an attorney, this clarity and ease of application would be lost. Police officers would be forced to make difficult judgment calls about whether the suspect in fact wants a lawyer even though he hasn't said so, with the threat of suppression if they guess wrong. We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.
Of course, when a suspect makes an ambiguous or equivocal statement, it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. That was the procedure followed by the NIS agents in this case. Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect's statement regarding counsel. But we decline to adopt a rule requiring officers to ask clarifying questions. If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.
To recapitulate: we held in Miranda that a suspect is entitled to the assistance of counsel during custodial interrogation even though the Constitution does not provide for such assistance. We held in Edwards that, if the suspect invokes the right to counsel at any time, [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 10] the police must immediately cease questioning him until an attorney is present. But we are unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the suspect actually requests an attorney, questioning may continue.
The courts below found that petitioner's remark to the NIS agents - "Maybe I should talk to a lawyer" - was not a request for counsel, and we see no reason to disturb that conclusion. The NIS agents therefore were not required to stop questioning petitioner, though it was entirely proper for them to clarify whether petitioner in fact wanted a lawyer. Because there is no ground for suppression of petitioner's statements, the judgment of the Court of Military Appeals is
[ Footnote * ] We have never had occasion to consider whether the Fifth Amendment privilege against self-incrimination, or the attendant [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 5] right to counsel during custodial interrogation, applies of its own force to the military, and we need not do so here. The President, exercising his authority to prescribe procedures for military criminal proceedings, see Art. 36(a), UCMJ, 10 U.S.C. 836(a), has decreed that statements obtained in violation of the Self-Incrimination Clause are generally not admissible at trials by court-martial. Mil. Rules Evid. 304(a) and (c)(3). Because the Court of Military Appeals has held that our cases construing the Fifth Amendment right to counsel apply to military interrogations and control the admissibility of evidence at trials by court-martial, see, e.g., United States v. McLaren, 38 M.J. 112, 115 (1993); United States v. Applewhite, 23 M.J. 196, 198 (1987), and the parties do not contest this point, we proceed on the assumption that our precedents apply to courts-martial just as they apply to state and federal criminal prosecutions. We also note that the Government has not sought to rely in this case on 18 U.S.C. 3501, "the statute governing the admissibility of confessions in federal prosecutions," United States v. Alvarez-Sanchez, 511 U.S. ___, ___ (1994), (slip op., at 1), and we therefore decline the invitation of some amici to consider it. See Brief for Washington Legal Foundation et al. as Amici Curiae 7-14. Although we will consider arguments raised only in an amicus brief, see Teague v. Lane, 489 U.S. 288, 300 (1989) (plurality opinion), we are reluctant to do so when the issue is one of first impression involving the interpretation of a federal statute on which the Department of Justice expressly declines to take a position. See Tr. of Oral Arg. 44-47. [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 1]
JUSTICE SCALIA, concurring.
Section 3501 of Title 18 of the United States Code is "the statute governing the admissibility of confessions in federal prosecutions." United States v. Alvarez-Sanchez, 511 U.S. ___, ___ (1994) (slip op., at 1). That provision declares that "a confession . . . shall be admissible in evidence if it is voluntarily given," and that the issue of voluntariness shall be determined on the basis of "all the circumstances surrounding the giving of the confession, including . . . whether or not [the] defendant was advised or knew that he was not required to make any statement . . . [;] . . . whether or not [the] defendant had been advised prior to questioning of his right to the assistance of counsel; and . . . whether or not [the] defendant was without the assistance of counsel when questioned. . . ." 3501(a), (b) (emphases added). It continues (lest the import be doubtful): "The presence or absence of any of the above-mentioned factors . . . need not be conclusive on the issue of voluntariness of the confession." 3501(b). Legal analysis of the admissibility of a confession without reference to these provisions is equivalent to legal analysis of the admissibility of hearsay without consulting the Rules of Evidence; it is an unreal exercise. Yet, as the Court observes, see ante, at 5, n., that is precisely what the United States has [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 2] undertaken in this case. It did not raise 3501(a) below and asserted that it is "not at issue" here, Brief for United States 18, n. 13. *
This is not the first case in which the United States has declined to invoke 3501 before us - nor even the first case in which that failure has been called to its attention. See Tr. of Oral Arg. in United States v. Green, O.T. 1992, No. 91-1521, pp. 18-21. In fact, with limited exceptions, the provision has been studiously avoided by every Administration, not only in this Court but in the lower courts, since its enactment more than 25 years ago. See Office of Legal Policy, U.S. Dept. of Justice, Report to Attorney General on Law of Pre-Trial Interrogation 72-73 (1986) (discussing "[t]he abortive implementation of 3501" after its passage in 1968). [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 3]
I agree with the Court that it is proper, given the Government's failure to raise the point, to render judgment without taking account of 3501. But the refusal to consider arguments not raised is a sound prudential practice, rather than a statutory or constitutional mandate, and there are times when prudence dictates the contrary. See United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U.S. ___, ___ (1993) (slip op., at 5-8) (proper for Court of Appeals to consider whether an allegedly controlling statute had been repealed, despite parties' failure, upon invitation, to assert the point). As far as I am concerned, such a time will have arrived when a case that comes within the terms of this statute is next presented to us.
For most of this century, voluntariness vel non was the touchstone of admissibility of confessions. See Miranda v. Arizona, 384 U.S. 436, 506 -507 (1966) (Harlan, J., dissenting). Section 3501 of Title 18 seems to provide for that standard in federal criminal prosecutions today. I say "seems" because I do not wish to prejudge any issue of law. I am entirely open to the argument that 3501 does not mean what it appears to say; that it is inapplicable for some other reason; or even that it is unconstitutional. But I will no longer be open to the argument that this Court should continue to ignore the commands of 3501 simply because the Executive declines to insist that we observe them.
The Executive has the power (whether or not it has the right) effectively to nullify some provisions of law by the mere failure to prosecute - the exercise of so-called prosecutorial discretion. And it has the power (whether or not it has the right) to avoid application of 3501 by simply declining to introduce into evidence confessions admissible under its terms. But once a prosecution has been commenced and a confession introduced, the Executive assuredly has neither the power nor the right [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 4] to determine what objections to admissibility of the confession are valid in law. Section 3501 of Title 18 is a provision of law directed to the courts, reflecting the people's assessment of the proper balance to be struck between concern for persons interrogated in custody and the needs of effective law enforcement. We shirk our duty if we systematically disregard that statutory command simply because the Justice Department systematically declines to remind us of it.
The United States' repeated refusal to invoke 3501, combined with the courts' traditional (albeit merely prudential) refusal to consider arguments not raised, has caused the federal judiciary to confront a host of "Miranda" issues that might be entirely irrelevant under federal law. See, e.g., in addition to the present case, United States v. Green, 507 U.S. ___ (1993) (dism'g cert. as moot); United States v. Griffin, 922 F.2d 1343 (CA8 1990); United States v. Vazquez, 857 F.2d 857 (CA1 1988); United States v. Scalf, 725 F.2d 1272 (CA10 1984). Worse still, it may have produced - during an era of intense national concern about the problem of run-away crime - the acquittal and the nonprosecution of many dangerous felons, enabling them to continue their depredations upon our citizens. There is no excuse for this. Perhaps (though I do not immediately see why) the Justice Department has good basis for believing that allowing prosecutions to be defeated on grounds that could be avoided by invocation of 3501 is consistent with the Executive's obligation to "take Care that the Laws be faithfully executed," U.S. Const., Art. II, 3. That is not the point. The point is whether our continuing refusal to consider 3501 is consistent with the Third Branch's obligation to decide according to the law. I think it is not.
[ Footnote * ] The United States makes the unusually self-denying assertion that the provision "in any event would appear not to be applicable in court-martial cases," since (1) court-martial cases are not "`criminal prosecutions' " within the meaning of the Sixth Amendment, and "therefore would not appear to be `criminal prosecution[s]' for purposes of Section 3501(a)," and (2) courts-martial are governed by Article 31 of the Uniform Code of Military Justice, 10 U.S.C. 831, and Rules 304 and 305 of the Military Rules of Evidence. The first point seems to me questionable: the meaning of terms in statutes do not necessarily parallel their meaning in the Constitution. Moreover, even accepting the premise that 3501 does not apply to courts-martial directly, it does apply indirectly, through Rule 101(b)(1) of the Military Rules of Evidence, which requires courts-martial to apply "the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." As for the second point: the cited provisions of the Uniform Code and the Military Rules may (though I doubt it) be independent reasons why the confession here should be excluded, but they cannot possibly be reasons why 3501 does not prevent Miranda v. Arizona, 384 U.S. 436 (1966), from being a basis for excluding them, which is the issue before us. In any event, the Court today bases its refusal to consider 3501 not upon the fact that the provision is inapplicable, but upon the fact that the Government failed to argue it - and it is that refusal which my present statement addresses. [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 1]
JUSTICE SOUTER, with whom JUSTICE BLACKMUN, JUSTICE STEVENS, and JUSTICE GINSBURG join, concurring in the judgment.
In the midst of his questioning by naval investigators, petitioner said "maybe I should talk to a lawyer." The investigators promptly stopped questioning Davis about the killing of Keith Shackleton, and instead undertook to determine whether he meant to invoke his right to counsel, see Miranda v. Arizona, 384 U.S. 436 (1966). According to testimony accepted by the courts below, Davis answered the investigators' questions on that point by saying, "I'm not asking for a lawyer," and "No, I don't want to talk to a lawyer." Only then did the interrogation resume (stopping for good when petitioner said, "I think I want a lawyer before I say anything else").
I agree with the majority that the Constitution does not forbid law enforcement officers to pose questions (like those directed at Davis) aimed solely at clarifying whether a suspect's ambiguous reference to counsel was meant to assert his Fifth Amendment right. Accordingly I concur in the judgment affirming Davis's conviction, resting partly on evidence of statements given after agents ascertained that he did not wish to deal with them through counsel. I cannot, however, join in my [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 2] colleagues' further conclusion that if the investigators here had been so inclined, they were at liberty to disregard Davis's reference to a lawyer entirely, in accordance with a general rule that interrogators have no legal obligation to discover what a custodial subject meant by an ambiguous statement that could reasonably be understood to express a desire to consult a lawyer.
Our own precedent, the reasonable judgments of the majority of the many courts already to have addressed the issue before us, 1 and the advocacy of a considerable body of law enforcement officials 2 are to the contrary. All argue against the Court's approach today, which draws a sharp line between interrogated suspects who "clearly" assert their right to counsel, ante, at 9, and those who say something that may, but may not, express a desire for counsel's presence, the former suspects being assured that questioning will not resume [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 3] without counsel present, see Miranda, supra, at 474, Edwards v. Arizona, 451 U.S. 477, 484 -485 (1981); Minnick v. Mississippi, 498 U.S. 146 (1990), the latter being left to fend for themselves. The concerns of fairness and practicality that have long anchored our Miranda case law point to a different response: when law enforcement officials "reasonably do not know whether or not the suspect wants a lawyer," ante, at 7, they should stop their interrogation and ask him to make his choice clear.
While the question we address today is an open one, 3 [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 4] its answer requires coherence with nearly three decades of case law addressing the relationship between police and criminal suspects in custodial interrogation. Throughout that period, two precepts have commanded broad assent: that the Miranda safeguards exist "to assure that the individual's right to choose between speech and silence remains unfettered throughout the interrogation process," see Connecticut v. Barrett, 479 U.S. 523, 528 (1987) (quoting Miranda, 384 U.S., at 469 , and supplying emphasis), and that the justification for Miranda rules, intended to operate in the real world, "must be consistent with . . . practical realities." Arizona v. Roberson, 486 U.S. 675, 688 (1988) (KENNEDY, J., dissenting). A rule barring government agents from further interrogation until they determine whether a suspect's ambiguous statement was meant as a request for counsel fulfills both ambitions. It assures that a suspect's choice whether or not to deal with police through counsel will be "scrupulously honored," [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 5] Miranda, supra, at 479; cf. Michigan v. Mosley, 423 U.S. 96, 110 , n. 2 (1975) (White, J., concurring in result), and it faces both the real-world reasons why misunderstandings arise between suspect and interrogator and the real-world limitations on the capacity of police and trial courts to apply fine distinctions and intricate rules.
Tested against the same two principles, the approach the Court adopts does not fare so well. First, as the majority expressly acknowledges, see ante, at 8, criminal suspects who may (in Miranda's words) be "thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures," 384 U.S., at 457 , would seem an odd group to single out for the Court's demand of heightened linguistic care. A substantial percentage of them lack anything like a confident command of the English language, see, e.g., United States v. De la Jara, 973 F.2d 746, 750 (CA9 1992); many are "woefully ignorant," Miranda, supra, at 468; cf. Davis v. North Carolina, 384 U.S. 737, 742 (1966); and many more will be sufficiently intimidated by the interrogation process or overwhelmed by the uncertainty of their predicament that the ability to speak assertively will abandon them. 4 Indeed, the awareness of just these [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 6] realities has, in the past, dissuaded the Court from placing any burden of clarity upon individuals in custody, but has led it instead to require that requests for counsel be "give[n] a broad, rather than a narrow, interpretation," see Michigan v. Jackson, 475 U.S. 625, 633 (1986); Barrett, 479 U.S., at 529 , and that courts "indulge every reasonable presumption," Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (internal quotation marks omitted), that a suspect has not waived his right to counsel under Miranda, see, e.g., Oregon v. Bradshaw, 462 U.S. 1039, 1051 (1983) (Powell, J., concurring) ("We are unanimous in agreeing . . . that the [Miranda] right to counsel is a prime example of those rights requiring the special protection of the knowing and intelligent waiver standard") (internal quotation marks and brackets omitted); cf. Minnick, 498 U.S., at 160 (SCALIA, J., dissenting) ("[W]e have adhered to the principle that nothing less than the Zerbst standard" is appropriate for Miranda waivers).
Nor may the standard governing waivers, as expressed in these statements, be deflected away by drawing a distinction between initial waivers of Miranda rights and subsequent decisions to reinvoke them, on the theory that, so long as the burden to demonstrate waiver rests on the government, it is only fair to make the suspect shoulder a burden of showing a clear subsequent assertion. Miranda itself discredited the legitimacy of any such distinction. The opinion described the object of the warning as being to assure "a continuous opportunity to exercise [the right of silence]," id., at 444; see also Moran v. Burbine, 475 U.S., at 458 (STEVENS, J., dissenting); accord, id., at 423, n. 1. [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 7] "[C]ontinuous opportunity" suggests an unvarying one, governed by a common standard of effectiveness. The suggestion is confirmed by the very first statement that follows, that "there can be no questioning" if the suspect "indicates in any manner and at any stage of the process that he wishes to consult with an attorney," Miranda, 384 U.S., at 444 -445. "[A]t any stage" obviously includes the stage after initial waiver and the commencement of questioning, and "indicates in any manner" is a rule plainly in tension with the indication "with a vengeance," see id., at 505 (Harlan, J., dissenting) that the Court would require for exercise of the "continuous" right at some point after initial waiver.
The Court defends as tolerable the certainty that some poorly expressed requests for counsel will be disregarded on the ground that Miranda warnings suffice to alleviate the inherent coercion of the custodial interrogation. Ante, at 8. But, "a once-stated warning, delivered by those who will conduct the interrogation cannot itself suffice" to "assure that the . . . right to choose between silence and speech remains unfettered throughout the interrogation process," 384 U.S., at 469 . Nor does the Court's defense reflect a sound reading of the case it relies on, Moran v. Burbine, supra:
Indeed, it is easy, amidst the discussion of layers of protection, to lose sight of a real risk in the majority's approach, going close to the core of what the Court has held that the Fifth Amendment provides. The experience of the timid or verbally inept suspect (whose existence the Court acknowledges) may not always closely follow that of the defendant in Edwards v. Arizona, (whose purported waiver of his right to counsel, made after having invoked the right, was held ineffective, lest police be tempted to "badge[r]" others like him, see Michigan v. Harvey, 494 U.S. 344, 350 (1990)). Indeed, it may be more like that of the defendant in Escobedo v. Illinois, supra, whose sense of dilemma was heightened by his interrogators' denial of his requests to talk to a lawyer. When a suspect understands his (expressed) wishes to have been ignored (and by hypothesis, he has said something that an objective listener could "reasonably," although not necessarily, take to be a request), in contravention of the "rights" just read to him by his interrogator, he may well see further objection as futile and confession (true or not) as the only way to end his interrogation. 5 [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 9]
Nor is it enough to say that a "`statement either is . . . an assertion of the right to counsel or it is not.'" Ante, at 7 (quoting Smith v. Illinois, 469 U.S., at 97 -98) (omitting brackets and internal quotation marks). In Smith, we neither denied the possibility that a reference to counsel could be ambiguous, see id., at 98; accord, id., at 101 (REHNQUIST, J., dissenting), nor suggested that particular statements should be considered in isolation. Id., at 98. 6 While it might be fair to say that every statement is meant either to express a desire to deal with police through counsel or not, this fact does not dictate the rule that interrogators who hear a statement consistent with either possibility may presume the latter and forge ahead; on the contrary, clarification is the intuitively sensible course.
The other justifications offered for the "requisite level of clarity" rule, ante, at 7, are that, whatever its costs, it will further society's strong interest in "effective law enforcement," ante, at 8, and maintain the "ease of application," id., at 9, that has long been a concern of our Miranda jurisprudence. With respect to the first point, the margin of difference between the clarification approach advocated here and the one the Court adopts is defined by the class of cases in which a suspect, if asked, would make it plain that he meant to request [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 10] counsel (at which point questioning would cease). While these lost confessions do extract a real price from society, it is one that Miranda itself determined should be borne. Cf. Brief for Americans for Effective Law Enforcement, Inc., et al. as Amici Curiae 5 (the clarification approach "preserves the interests of law enforcement and the public welfare"); Escobedo, 378 U.S., at 490 ("No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, [his constitutional] rights").
As for practical application, while every approach, including the majority's, will involve some "difficult judgment calls," 7 the rule argued for here would relieve [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 11] the officer of any responsibility for guessing "whether the suspect in fact wants a lawyer even though he hasn't said so," ante, at 9. To the contrary, it would assure that the "judgment call" will be made by the party most competent to resolve the ambiguity, who our case law has always assumed should make it: the individual suspect.
Although I am convinced that the Court has taken the wrong path, I am not persuaded by the petitioner's contention that even ambiguous statements require an end to all police questioning. I recognize that the approach petitioner urges on us can claim some support from our case law, most notably in the "indicates in any manner" language of Miranda, and I do not deny that the rule I endorse could be abused by "clarifying" questions that shade subtly into illicitly badgering a suspect who wants counsel, but see Thompson v. Wainwright, 601 F.2d 768, 771-772 (CA5 1979); cf. State v. Walkowiak, No. 92-1558-CR (Wis. May 13, 1994) (Abrahamson, J., concurring) (suggesting means properly to focus clarification enquiry). But the petitioner's proposal is not entirely in harmony with all the major themes of Miranda case law, its virtues and demerits being the reverse images of those that mark the Court's rule. While it is plainly wrong, for example, to continue interrogation when the suspect wants it to stop (and so indicates), the strong bias in favor of individual choice may also be disserved by stopping questioning when a [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 12] suspect wants it to continue (but where his statement might be understood otherwise), see Michigan v. Mosley, 423 U.S. 96, 109 (1975) (White, J., concurring in result) ("[W]e have . . . rejected [the] paternalistic rule protecting a defendant from his intelligent and voluntary decisions about his own criminal case"). The costs to society of losing confessions would, moreover, be especially hard to bear where the suspect, if asked for his choice, would have chosen to continue. One need not sign the majority's opinion here to agree that resort to the rule petitioner argues for should be had only if experience shows that less drastic means of safeguarding suspects' constitutional rights are not up to the job, see generally United States v. Leon 468 U.S. 897, 927 -928 (1984) (BLACKMUN, J., concurring) (exclusionary rule exception must be "tested in the real world of state and federal law enforcement, and this Court will attend to the results").
[ Footnote 2 ] See Brief for Americans for Effective Law Enforcement, Inc., International Association of Chiefs of Police, Inc. National District Attorneys Association, and National Sheriffs' Association as Amici Curiae 5 (the approach advocated here "is a common sense resolution of the problem. It fully accommodates the rights of the subject, while at the same time preserv[ing] the interests of law enforcement and of the public welfare"); see also Brief for United States 20 (approach taken by the Court does not "fulfill the fundamental purpose of Miranda") (internal quotation marks omitted).
[ Footnote 3 ] The majority acknowledges, ante, at 4, that we have declined (despite the persistence of divergent approaches in the lower courts) to decide the operative rule for such ambiguous statements, see, e.g., Connecticut v. Barrett, 479 U.S. 523, 529 , n. 3 (1987); Mueller v. Virginia, 507 U.S. ___ (1993) (White, J., dissenting from denial of certiorari), but then suggests that the conclusion it reaches was foreshadowed by McNeil v. Wisconsin, 501 U.S. 171 (1991), where we noted that the "likelihood that a suspect would wish counsel to be present" was not dispositive. Id., at 178. But we were not addressing the degree of clarity required to activate the counsel right (let alone endorsing the standard embraced today), as is evident from the very page of McNeil cited, where we were careful to say only that the Miranda counsel right "requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." Ibid. McNeil instead made the different and familiar point that courts may not presume that a silent defendant "would" want a lawyer whenever circumstances suggest that representation "would" be in his interest. Nor may this case be disposed of by italicizing the words of Edwards v. Arizona, 451 U.S. 477, 485 (1981) to the effect that, when a suspect "clearly assert[s]" his right, questioning must cease. See ante, at 7. Even putting aside that the particular statement in that case was not entirely clear (the highest court to address the question described it as "equivocal," see State v. Edwards, 122 Ariz. 206, 211, 594 P.2d 72, 76 (1979); see also 451 U.S., at 480 , n. 6), [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 4] Edwards no more decided the legal consequences of a less than "clear" statement than Miranda, by saying that explicit waivers are sufficient, 384 U.S., at 475 , settled whether they are necessary. See North Carolina v. Butler, 441 U.S. 369, 373 (1979) (holding they are not). Were it otherwise, there would have been no need after Edwards to identify the issue as unresolved, but see Barrett, supra; Smith v. Illinois, 469 U.S. 91, 95 -96 (1984) (per curiam). Nor, finally, is it plausible to read Miranda itself as a presage of the Court's rule, on account of language suggesting that questioning need not stop when a request for counsel is "`indecisive.'" Ante, at 8 (quoting Miranda, 384 U.S., at 485 ). The statement quoted, however, is not taken from the Court's holding, but rather from a lengthy direct quotation of a letter to the Court from the Solicitor General, purporting to summarize then-current FBI practice (which the Court observed was "consistent," id., at 484, with the rule announced). In any event, the letter further explains that, under the FBI policy, the "indecisive" suspect may be "question[ed] on whether he did or did not waive counsel," id., at 485, an approach closer to the one advocated here than to the one the Court adopts.
[ Footnote 4 ] Social science confirms what common sense would suggest, that individuals who feel intimidated or powerless are more likely to speak in equivocal or nonstandard terms when no ambiguity or equivocation is meant. See W. O'Barr, Linguistic Evidence: Language, Power and Strategy in the Courtroom 61-71 (1982). Suspects in police interrogation are strong candidates for these effects. Even while resort by the police to the "third degree" has abated since Miranda, the basic forms of psychological pressure applied by police appear to have changed less. Compare, e.g., Miranda, supra, at 449 ("`[T]he principal psychological factor contributing to a successful interrogation is privacy'") (quoting F. Inbau & J. Reid, [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 6] Criminal Interrogations and Confessions 1 (1962)), with F. Inbau, J. Reid, & J. Buckley, Criminal Interrogation and Confessions 24 (3d ed. 1986) ("The principal psychological factor contributing to a successful interrogation is privacy").
[ Footnote 5 ] See People v. Harper, 94 Ill.App. 3d 298, 300, 418 N.E.2d 894, 896 (1981) (defendant who asked interrogator to retrieve an attorney's business card from his wallet, but was told that it "`wouldn't be necessary'" held not to have "availed himself" of right to counsel); see also Cooper v. Dupnik, see 963 F.2d 1220, 1225 (CA9 1992) (en banc) [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 9] (describing elaborate police Task Force plan to ignore systematically a suspect's requests for counsel, on the theory that such would induce hopelessness, and thereby elicit an admission, which would then be used to keep the suspect off the witness stand, see Oregon v. Haas, 420 U.S. 714 (1975) (statements obtained in violation of Miranda rules admissible for impeachment purposes)).
[ Footnote 6 ] Indeed, our Smith decision was quoting from the dissent below, which adverts in the same sentence to the possibility of "bona fide doubt the officer may still have as to whether the defendant desires counsel," in which case "strictly" limited questioning is prescribed. See People v. Smith, 102 Ill.2d 365, 375 46 N.E.2d 236, 241 (1984) (opinion of Simon, J.).
[ Footnote 7 ] In the abstract, nothing may seem more clear than a "clear statement" rule, but, in police stations and trial courts, the question "how clear is clear?" is not so readily answered. When a suspect says, "uh, yeah, I'd like to do that" after being told he has a right to a lawyer, has he "clearly asserted" his right? Compare Smith v. Illinois, 469 U.S. 91, 97 (1984) (per curiam) (statement was "`neither indecisive nor ambiguous'") (citation omitted), with id., at 101 (REHNQUIST, J., dissenting) (questioning clarity); see also Oregon v. Bradshaw, 462 U.S. 1039, 1041 -1042 (1983) (plurality opinion) ("I do want an attorney before it goes very much further"); Edwards, 451 U.S., at 479 ("`I want an attorney before making a deal'"); cf. n. 3, supra. Indeed, in this case, when Davis finally said, "I think I want a lawyer before I say anything else," the agents ceased questioning; but see People v. Kendricks, 121 Ill.App. 3d 442, 446, 459 N.E.2d 1137, 1139 (1984) (agents need not stop interrogation when suspect says, "`I think I might need a lawyer'"); Cf. People v. Santiago, 133 App. Div. 429, 430-431, 519 N.Y.S.2d 413, 414-415 (1987) ("`Will you supply [a lawyer] now so that I may ask him should I continue with this interview at this moment?'" held "not . . . an unequivocal invocation"). See generally Smith, supra, at 101 (REHNQUIST, J., dissenting) (noting that statements are rarely "crystal-clear. . . . [D]ifferences between certainty and hesitancy may well turn on the inflection with which words are spoken, especially where [a] statement is isolated from the statements surrounding it"). [ DAVIS v. UNITED STATES, ___ U.S. ___ (1994) , 11] As a practical matter, of course, the primary arbiters of "clarity" will be the interrogators themselves, who tend as well to be courts' preferred source in determining the precise words a suspect used. And when an inculpatory statement has been obtained as a result of an unrecorded, incommunicado interrogation, these officers rarely lose "swearing matches" against criminal defendants at suppression hearings. Page I
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