Respondent, a soldier stationed in Missouri, after being
arrested on a charge of rape and after consulting with private
counsel and with an attorney provided him by the Army, requested a
polygraph examination. Immediately prior to the examination, which
was conducted by an agent of the Army's Criminal Investigation
Division (CID), respondent signed a consent document that included
information of his rights under
Miranda v. Arizona,
384 U. S. 436; the
CID agent read to respondent a detailed statement that also
explained his rights, including the right to stop answering
questions at any time or to speak to a lawyer before answering
further, even if he signed a waiver certificate; and respondent, in
response to a question, stated that he did not want a lawyer
present. At the conclusion of the polygraph examination, the CID
agent told respondent that there had been some deceit, and asked
him if he could explain why his answers were bothering him;
respondent then admitted having intercourse with the victim, but
said that it had been consensual; the agent asked whether
respondent wished to discuss the matter further with another CID
agent and with the local Police Chief, and respondent said that he
did. The Police Chief read respondent his
Miranda warnings
once again before questioning him, and respondent repeated that his
sexual contact with the victim had been consensual. Respondent was
convicted after trial in a Missouri state court, which denied his
motion to suppress the testimony of the two CID agents and the
Police Chief as to his "confessions" to voluntary intercourse,
holding that he had waived his rights. The Missouri Court of
Appeals affirmed, and the Federal District Court denied
respondent's subsequent petition for habeas corpus relief. However,
the Federal Court of Appeals reversed, holding that, although
respondent had waived his Fifth Amendment right to have counsel
present while the polygraph examination itself was being conducted,
the State failed to prove that he knowingly and intelligently
waived his right to the presence of counsel at the examining CID
agent's "post-test interrogation." The court suggested that there
would have been no violation if the agent merely had paused at the
end of the polygraph examination to remind respondent of his
rights.
Page 459 U. S. 43
Held: The Court of Appeals misconstrued
Edwards v.
Arizona, 451 U. S. 477,
which establishes that, where an accused, after invoking his right
to counsel, initiates subsequent dialogue with the authorities, the
question whether there was a valid waiver of the right to counsel
as to any interrogation that occurs during such dialogue is
controlled by the "totality of the circumstances," including the
fact that the accused initiated the dialogue. Here, respondent
initiated not just a meeting with the authorities, but
interrogation, by requesting the polygraph examination. Respondent
validly waived his right to have counsel present at "post-test"
questioning unless the circumstances changed so seriously that his
answers no longer were voluntary, or unless he no longer was
waiving his rights knowingly and voluntarily. To require new
warnings merely because the examination had been discontinued and
respondent was asked if he could explain the test's unfavorable
results would be unreasonable. The questions put to respondent
after the examination would not have caused him to forget the
rights of which he had been advised, and which he had understood,
moments before.
Certiorari granted; 682 F.2d 154, reversed and remanded.
PER CURIAM.
In this case, the United States Court of Appeals for the Eighth
Circuit, over a dissent by Judge Ross, directed that respondent
Edward Fields' petition for a writ of habeas corpus be granted; it
did so on the ground that Fields had been convicted with evidence
obtained in violation of his Fifth Amendment right to have counsel
present at an interrogation. 682 F.2d 154 (1982). We have concluded
that the Court of Appeals' majority misconstrued this Court's
recent decision in
Edwards v. Arizona, 451 U.
S. 477 (1981), and imposed a new and unjustified limit
on police questioning of a suspect who voluntarily, knowingly, and
intelligently waives his right to have counsel present.
I
Respondent, a soldier then stationed at Fort Leonard Wood, Mo.,
was charged with raping an 81-year-old woman on September 21, 1974.
After his arrest on September 25, Fields was released on his own
recognizance. He retained
Page 459 U. S. 44
private defense counsel. After discussing the matter with his
counsel and with a military attorney provided him by the Army,
Fields requested a polygraph examination. This request was granted,
and the examination was conducted on December 4 by an agent of the
Army's Criminal Investigation Division (CID) at the fort.
Prior to undergoing the polygraph examination, Fields was given
a written consent document, which he signed, informing him of his
rights, as required by
Miranda v. Arizona, 384 U.
S. 436 (1966), and of his rights under the Uniform Code
of Military Justice and the Eighth Amendment. In addition, the CID
agent read to Fields the following detailed statement:
"Before I ask you any questions, you must understand your
rights. You do not have to answer my questions or say anything.
Anything you say or do can be used against you in a criminal trial.
You have a right to talk to a lawyer before questioning or have a
lawyer present with you during the questioning. This lawyer can be
a civilian lawyer of your own choice, or a military lawyer,
detailed for you at no expense to you. Also, you may ask for a
military lawyer of your choice by name, and he will be detailed for
you if superiors determine he's reasonably available.
If you
are now going to discuss the offense under investigation, which is
rape, with or without a lawyer present, you have a right to stop
answering questions at any time or speak to a lawyer before
answering further, even if you sign a waiver certificate. Do
you want a lawyer at this time?"
See State v. Fields, 538 S.W.2d
348, 350, n. 1 (Mo.App.1976) (emphasis added). Fields answered:
"No."
At the conclusion of the polygraph examination, which took less
than two hours, the CID agent told Fields that there had been some
deceit, and asked him if he could explain why his answers were
bothering him. Fields then admitted having
Page 459 U. S. 45
intercourse with the victim on September 21, but said that she
had instigated and consented to it. The agent asked Fields if he
wished to discuss the matter further with another CID agent and
with the Waynesville, Mo., Chief of Police. Fields said that he
did. Then, in his turn, the Police Chief read Fields his
Miranda warnings once again before questioning him. Fields
repeated that he had had sexual contact with the victim, but that
it had been consensual.
Respondent was tried before a jury in the Circuit Court, Pulaski
County, Mo. He sought to suppress the testimony of the two CID
agents and the Police Chief regarding his "confessions" to
voluntary intercourse. The trial court denied the motion, ruling
that Fields had waived his rights. The testimony was admitted.
Fields was convicted, and was sentenced to 25 years in prison. The
Missouri Court of Appeals affirmed the judgment on the ground that
Fields "had been repeatedly and amply advised of his rights, and .
. . voluntarily, knowingly and intelligently waived his rights."
538 S.W.2d at 350.
Eventually, Fields sought a writ of habeas corpus in the United
States District Court for the Eastern District of Missouri. The
District Court, agreeing with the Missouri Court of Appeals that
Fields had voluntarily, knowingly, and intelligently waived his
right to counsel, denied respondent's petition. On appeal, however,
the Eighth Circuit reversed and remanded the case with directions
to order the State either to release Fields or to afford him a new
trial. 682 F.2d at 162.
II
The Court of Appeals found that the police conduct in question
contravened the "clear import" of this Court's decision in
Edward v. Arizona: "a defendant's right to have counsel
present at custodial interrogations must be zealously guarded." 682
F.2d at 158. In
Edwards, this Court had held that, once a
suspect invokes his right to counsel, he may not be subjected to
further interrogation until counsel is provided
Page 459 U. S. 46
unless the suspect himself initiates dialogue with the
authorities. 451 U.S. at
451 U. S.
484-487. The Eighth Circuit recognized that what it
called the "
per se rule" of
Edwards "does not
resolve the issue present here." 682 F.2d at 158. Fields and his
counsel had agreed that Fields should take the polygraph
examination, and Fields appeared voluntarily and stated that he did
not want counsel present during the interrogation. Thus, the Court
of Appeals conceded that "Fields thereby
initiated' further
dialogue with the authorities after his right to counsel had been
invoked." Ibid.
When the suspect has initiated the dialogue,
Edwards
makes clear that the right to have a lawyer present can be
waived:
"If, as frequently would occur in the course of a meeting
initiated by the accused, the conversation is not wholly one-sided,
it is likely that the officers will say or do something that
clearly would be 'interrogation.' In that event, the question would
be whether a valid waiver of the right to counsel and the right to
silence had occurred, that is, whether the purported waiver was
knowing and intelligent, and found to be so under the totality of
the circumstances, including the necessary fact that the accused,
not the police, reopened the dialogue with the authorities."
451 U.S. at
451 U. S. 486,
n. 9. Citing this language, the Eighth Circuit acknowledged -- as
it had to -- that "[t]here is no question that Fields waived his
right to have counsel present while the [polygraph] examination
itself was being conducted." 682 F.2d at 160. Yet that court found
that the State had failed to satisfy its burden of proving that
"Fields knowingly and intelligently waived his right to have
counsel present at the post-test interrogation."
Ibid. The
court suggested that had the CID agent merely "paus[ed] to remind
the defendant" of his rights, thus
Page 459 U. S. 47
providing "
meaningfully timed Miranda warnings"
(emphasis in original), there would have been no violation.
Ibid.
III
In reaching this result, the Court of Appeals did not examine
the "totality of the circumstances," as
Edwards requires.
Fields did not merely initiate a "meeting." By requesting a
polygraph examination, he initiated interrogation. That is, Fields
waived not only his right to be free of contact with the
authorities in the absence of an attorney, but also his right to be
free of interrogation about the crime of which he was suspected.
Fields validly waived his right to have counsel present at
"post-test" questioning, unless the circumstances changed so
seriously that his answers no longer were voluntary, or unless he
no longer was making a "knowing and intelligent relinquishment or
abandonment" of his rights. 451 U.S. at
451 U. S.
482.
The Court of Appeals relied on two facts indicating the need for
a new set of warnings: the polygraph examination had been
discontinued and Fields was asked if he could explain the test's
unfavorable results. To require new warnings because of these two
facts is unreasonable. Disconnecting the polygraph equipment
effectuated no significant change in the character of the
interrogation. The CID agent could have informed Fields during the
examination that his answers indicated deceit; asking Fields, after
the equipment was disconnected, why the answers were bothering him
was not any more coercive. The Court of Appeals stated that there
was no indication that Fields or his lawyer anticipated that Fields
would be asked questions after the examination. But it would have
been unreasonable for Fields and his attorneys to assume that
Fields would not be informed of the polygraph readings and asked to
explain any unfavorable result. Moreover, Fields had been informed
that he could stop the questioning at any time, and could request
at any time that
Page 459 U. S. 48
his lawyer join him. Merely disconnecting the polygraph
equipment could not remove this knowledge from Fields' mind.
*
The only plausible explanation for the court's holding is that,
encouraged by what it regarded as a
per se rule
established in
Edwards, it fashioned another rule of its
own: that, notwithstanding a voluntary, knowing, and intelligent
waiver of the right to have counsel present at a polygraph
examination, and notwithstanding clear evidence that the suspect
understood that right and was aware of his power to stop
questioning at any time or to speak to an attorney at any time, the
police again must advise the suspect of his rights before
questioning him at the same interrogation about the results of the
polygraph. The court indicated that this rule was needed because it
thought that the use of polygraph "results" in questioning,
although it does not necessarily render a response involuntary, is
inherently coercive. But Courts of Appeals, including a different
panel of the Eighth Circuit itself, and state courts, have rejected
such a rule.
See, e.g., United States v. Little Bear, 583
F.2d 411, 414 (CA8 1978);
Keiper v. Cupp, 509 F.2d 238,
241-242 (CA9 1975);
People v. Barreto, 256 Cal. App.
2d 392, 64 Cal. Rptr. 211 (1967);
State v.
Henry, 352 So.
2d 643 (La.1977).
Cf. Henry v. Dee, 658 F.2d 406 (CA5
1981) (waiver not voluntary, knowing, and intelligent in the total
circumstances of the case, including mental retardation of
suspect). The Eighth Circuit's rule certainly finds no support in
Edwards, which emphasizes that the totality of the
circumstances, including the fact that the suspect initiated the
questioning, is controlling. Nor is the
Page 459 U. S. 49
rule logical; the questions put to Fields after the examination
would not have caused him to forget the rights of which he had been
advised and which he had understood moments before. The rule is
simply an unjustifiable restriction on reasonable police
questioning.
IV
According to the dissent, a substantial question as to the
admissibility of Fields' statements may be raised under the Sixth
Amendment.
Post at
459 U. S. 52-55.
The Sixth Amendment issues raised by the dissent, however, are not
before us. The Court of Appeals rested its judgment exclusively on
the Fifth Amendment "right to have counsel present during a
custodial interrogation" and on its interpretation of this Court's
decision in
Edwards. 682 F.2d at 158. That interpretation
was flawed, and the judgment of the Court of Appeals must be
reversed. We express no view as to whether any constitutional
safeguards not mentioned by the Court of Appeals bear on this
case.
Because the Court of Appeals misapplied
Edwards and
created an unjustified
per se rule, the petition for a
writ of certiorari is granted and that court's judgment is reversed
and the case is remanded.
It is so ordered.
* The dissent suggests that, because the results of polygraph
examinations are inadmissible in Missouri, Fields might reasonably
have expected that he would not be subjected "to additional
questioning that can produce admissible evidence."
Post at
459 U. S. 61, n.
2. Although the results of the polygraph examination might not have
been admissible evidence, the statements Fields made in response to
questioning during the course of the polygraph examination surely
would have been.
JUSTICE STEVENS, concurring.
There is much force to what JUSTICE MARSHALL has written in
dissent. I share his concern about the Court's practice of deciding
cases summarily, partly because there is a special risk of error in
summary dispositions and partly because the practice represents an
unwise use of the Court's scarce resources. I do not, however,
agree with JUSTICE MARSHALL's suggestion that we should invite the
parties to submit briefs on the merits before a case is summarily
decided. I fear that the institution of such a practice would tend
to regularize and expand the number of our summary
dispositions.
Page 459 U. S. 50
In this case, I believe the correct procedure for the Court to
have followed would have been simply to deny the petition for a
writ of certiorari. No conflict has yet developed on the precise
question presented and, as JUSTICE MARSHALL demonstrates, the Court
of Appeals' conclusion is not without reasoned support. The Court,
however, has granted the petition. Although I voted against that
action, I am now persuaded that the Court's resolution of the
merits is correct, and therefore join its disposition.
JUSTICE MARSHALL, dissenting.
A summary reversal is an exceptional disposition. It should be
reserved for situations in which the applicable law is settled and
stable, the facts are not disputed, and the decision below is
clearly in error. [
Footnote 1]
I Because I do not believe that this is such a case, I dissent.
I
I do not agree that respondent's consent to the polygraph
examination necessarily constituted a waiver of his Fifth Amendment
rights with respect to the post-examination interrogation. In my
view, this case is not controlled by the footnote in
Edward v.
Arizona, 451 U. S. 477,
451 U. S. 486,
n. 9 (1981), on which the Court relies. That footnote dealt with
the hypothetical case, not before the Court in
Edwards, of
a suspect who initiates a meeting with the police. The Court
indicated that, even if the police said or did something in the
meeting that constituted interrogation, incriminating statements
thereby elicited would be admissible if a knowing and intelligent
waiver of the suspect's Fifth Amendment rights could be inferred in
light of "
the totality of the circumstance, including the
necessary fact that the accused, not the police, reopened the
dialogue with the authorities."
Ibid. (Emphasis
supplied.)
Page 459 U. S. 51
In this case, "the totality of the circumstances" includes the
undisputed facts that respondent agreed only to submit to a
polygraph examination, and that he was never told he would be
subjected to a post-examination interrogation. Moreover, an
agreement to submit to a polygraph examination differs in an
important respect from the initiation of an ordinary conversation
with the authorities. When a suspect commences a conversation with
a policeman, he has reason to expect that, as in any conversation,
there will be a give-and-take extending beyond the subject matter
of his original remarks. It may therefore be appropriate to
conclude that the suspect's waiver of his Fifth Amendment rights
extends to the entire conversation. By contrast, a polygraph
examination is a discrete test. It has a readily identifiable
beginning and end. An individual who submits to such an examination
does not necessarily have any reason whatsoever to expect that he
will be subjected to a post-examination interrogation. [
Footnote 2] While, in some cases, the
prosecution may be able to prove that a suspect knew there would be
questioning after the test, here there is
"no evidence that Fields or his lawyer anticipated that the CID
officer would attempt to elicit incriminating statements from
Fields after the examination was run."
682 F.2d 154, 160 (CA8 1982).
In any event, I do not believe that this substantial
constitutional question should be disposed of summarily. I
recognize,
Page 459 U. S. 52
of course, that this Court's expanding docket has increased the
pressure to accelerate the disposition process. I cannot agree,
however, that summary reversal is proper in a case that involves a
significant issue not settled by our prior decisions. If the Court
concludes that there are "special and important reasons," this
Court's Rule 17.1, for granting certiorari, but also concludes that
this case should not be set for oral argument, the Court should at
least give the parties notice that it is considering a summary
disposition, so that they may have an opportunity to submit briefs
on the
merits. See Brown, Foreword: Process of
Law, 72 Harv.L.Rev. 77, 94-95 (1958).
II
Today's decision holds only that the post-examination
interrogation did not violate respondent's Fifth Amendment
privilege against self-incrimination. The Court's ruling does not
preclude the Court of Appeals from considering on remand whether
the interrogation nevertheless violated his Sixth Amendment right
to counsel. [
Footnote 3]
See Massiah v.
United
Page 459 U. S. 53
States, 377 U. S. 201
(1964). Because "the policies underlying the two constitutional
protections are quite distinct,"
Rhode Island v. Innis,
446 U. S. 291,
446 U. S. 300,
n. 4 (1980), a suspect may waive his Fifth Amendment right to
remain silent without waiving his Sixth Amendment right to
counsel.
Where only the Fifth Amendment applies, the ultimate question is
whether the conduct alleged to constitute a waiver demonstrates
that, despite "the compulsion inherent in custodial surroundings,"
Miranda v. Arizona, 384 U. S. 436,
384 U. S. 458
(1966), the suspect's statements were given voluntarily. To make
the Fifth Amendment protection against compelled self-incrimination
effective, this Court has held that a suspect has a right to have
counsel present at any custodial interrogation.
Id. at
384 U. S.
469-472. Once a suspect in custody asks to speak to a
lawyer, he
"is not subject to further interrogation by the authorities
until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or
conversations with the police."
Edwards v. Arizona, 451 U.S. at
451 U. S.
484-485. When a suspect has indicated that he needs
legal advice before deciding whether to talk further, any
subsequent statements made at the authorities' insistence without
counsel being present are unlikely to be voluntary.
See
Michigan v. Mosley, 423 U. S. 96,
423 U. S. 110,
n. 2 (1975) (WHITE, J., concurring in result). If, on the other
hand, the subsequent statements are made in a conversation
initiated by the accused, they may well be voluntary.
See
Edwards v. Arizona, supra, at
451 U. S. 486,
n. 9. Since the underlying purpose of the privilege against
self-incrimination is to prevent the State from coercing an
individual to give evidence against himself, it makes sense to
find
Page 459 U. S. 54
a waiver of the privilege where a suspect's conduct provides
assurance that his statements were made voluntarily.
The determination of whether there has been a valid waiver of
the Sixth Amendment right to counsel has a different focus, for the
values underlying that right are different. The purpose of the
Sixth Amendment right to counsel is to provide the defendant with
legal assistance during the critical stages of the criminal
process.
See, e.g., Brewer v. Williams, 430 U.
S. 387,
430 U. S. 398
(1977);
Powell v. Alabama, 287 U. S.
45,
287 U. S. 57
(1932). To give effect to this protection, this Court has insisted
that the State deal with a defendant through his attorney. Once the
State has commenced adversary criminal proceedings against an
individual, as Missouri did in this case more than two months
before the polygraph examination was held, the Sixth Amendment
forbids all efforts to elicit information from him in the absence
of counsel, regardless of whether he is in custody,
see United
States v. Henry, 447 U. S. 264,
447 U. S.
273-274, n. 11 (1980);
Massiah v. United States,
supra, and regardless of whether the technique used to extract
information is in any way coercive,
see McLeod v. Ohio,
381 U. S. 356
(1965).
To establish a waiver of the Sixth Amendment right to counsel,
it is therefore not enough for the State to point to conduct --
such as the initiation of a conversation -- that demonstrates that
the defendant's statements were made voluntarily. Since a Sixth
Amendment violation does not depend upon coercion, the protection
of the Sixth Amendment is not waived by conduct that shows only
that a defendant's statements were not coerced. The State must show
that the defendant intelligently and knowingly relinquished his
right not to be questioned in the absence of counsel. The State can
establish a waiver only by proving "
an intentional
relinquishment or abandonment'" of the right to have counsel
present. Brewer v. Williams, supra, at 430 U. S. 404,
quoting Johnson v. Zerbst, 304 U.
S. 458, 304 U. S. 464
(1938). [Footnote 4]
Page 459 U. S. 55
Given the different policies underlying the Fifth and Sixth
Amendments, it is not surprising that a number of courts have held
that
"'[w]arnings by law enforcement officers and subsequent action
by the accused that might suffice to comply with Fifth Amendment
strictures against testimonial compulsion [do] not necessarily meet
. . . the higher standard with respect to waiver of the right to
counsel that applies when the Sixth Amendment [right to counsel]
has attached.'"
United States v. Mohabir, 624 F.2d 1140, 1147 (CA2
1980), quoting
United States v. Massimo, 432 F.2d 324, 327
(CA2 1970) (Friendly, J., dissenting) (majority did not reach the
issue),
cert. denied, 400 U.S. 1022 (1971). [
Footnote 5] Today's decision therefore does
not foreclose the Court of Appeals from considering on remand
whether the post-examination interrogation violated the Sixth
Amendment.
[
Footnote 1]
See generally Brown, Foreword: Process of Law, 72
Harv.L.Rev. 77 (1958).
[
Footnote 2]
Certainly no one would argue that a suspect who consented to a
blood test, a lineup, or fingerprinting thereby consented to be
questioned about the results of those procedures.
In this case, it is particularly inappropriate to assume that
Fields must have realized that the CID agent would conduct a
post-examination interrogation. The results of polygraph
examinations are inadmissible in Missouri.
See State v.
Biddle, 699 S.W.2d 182, 191 (Mo.1980) (en banc);
State v.
Weindorf, 361 S.W.2d
806,
811
(Mo.1962). When a defendant, after consultation with his attorney,
agrees to submit to an examination the results of which are
inadmissible, the authorities have no justification for inferring
that the defendant has also agreed to submit to additional
questioning that can produce admissible evidence.
[
Footnote 3]
I do not share the majority's certainty that the Court of
Appeals relied "exclusively on the Fifth Amendment."
Ante
at
459 U. S. 49.
Although the opinion below does discuss
Edwards v.
Arizona, 461 U. S. 477
(1981), at considerable length, the court phrased its holding in
terms of the "right to counsel" without referring specifically to
the Fifth Amendment or the Sixth Amendment.
See 682 F.2d
164, 167 (CA8 1982) ("we conclude that Fields did not knowingly and
intelligently waive his right to have counsel present at the
interrogation");
id. at 161 ("The government has simply
introduced no evidence from which we can conclude that, when Fields
was confronted with the accusatory statement that the
lie-detector' showed he was lying, he waived his right to the
protection of counsel in this coercive situation"). See also
id. at 161, n. 12 (relying on Brewer v. Williams,
430 U. S. 387
(1977), a Sixth Amendment case). It is noteworthy that the
Magistrate, whose report the District Court adopted, pointed to the
Sixth Amendment problem by observing that it is "a somewhat empty
gesture to appoint an attorney for an accused . . . and then pursue
[an] interrogation . . . without his attorney." In addition, the
petition for certiorari asserts that the decision below "expands
the rights guaranteed an accused during interrogation under the
Fifth and Sixth Amendment." Pet. for Cert. 7 (emphasis
supplied).
In any event, since the Court today construes the Court of
Appeals' opinion as resting solely on the Fifth Amendment, the
Sixth Amendment issue remains open on remand.
[
Footnote 4]
Edwards v. Arizona, supra, addressed only the standard
governing waiver of the Fifth Amendment privilege against
self-incrimination. Since the Court concluded that
Edwards
had been interrogated in violation of the Fifth Amendment, it had
no occasion to consider whether the Sixth Amendment applied or
whether, if so,
Edwards had waived its protection.
See
id. at
461 U. S. 480, n.
7.
[
Footnote 5]
See United State ex rel. O'Connor v. New Jersey, 405
F.2d 632, 636 (CA3),
cert. denied, 395 U.S. 923 (1969);
Hancock v. White, 378 F.2d 479, 482 (CA1 1967).
See
also United States v. Springer, 460 F.2d 1344, 1354-1355 (CA7)
(Stevens, J., dissenting),
cert. denied, 409 U.S. 873
(1972);
People v. Arthur, 22 N.Y.2d 325, 330, 239 N.E.2d
537, 539 (1968).
See generally Note, 82 Colum.L.Rev. 363
(1982).