Petitioner Minnick was arrested on a Mississippi warrant for
capital murder. An interrogation by federal law enforcement
officials ended when he requested a lawyer, and he subsequently
communicated with appointed counsel two or three times.
Interrogation was reinitiated by a county deputy sheriff after
Minnick was told that he could not refuse to talk to him, and
Minnick confessed. The motion to suppress the confession was
denied, and he was convicted and sentenced to death. The State
Supreme Court rejected his argument that the confession was taken
in violation of, inter alia,
his Fifth Amendment right to
counsel, reasoning that the rule of Edwards v. Arizona,
451 U. S. 477
that once an accused requests counsel, officials may not reinitiate
questioning "until counsel has been made available" to him -- did
not apply, since counsel had been made available.
When counsel is requested, interrogation must
cease, and officials may not reinitiate interrogation without
counsel present, whether or not the accused has consulted with his
attorney. In context, the requirement that counsel be "made
available" to the accused refers not to the opportunity to consult
with an attorney outside the interrogation room, but to the right
to have the attorney present during custodial interrogation. This
rule is appropriate and necessary, since a single consultation with
an attorney does not remove the suspect from persistent attempts by
officials to persuade him to waive his rights and from the coercive
pressures that accompany custody and may increase as it is
prolonged. The proposed exception is inconsistent with
purpose to protect a suspect's right to have
counsel present at custodial interrogation and with Miranda v.
Arizona, 384 U. S. 436
where the theory that the opportunity to consult with one's
attorney would substantially counteract the compulsion created by
custodial interrogation was specifically rejected. It also would
undermine the advantages flowing from Edwards'
unequivocal character. Since, under respondent's formulation of the
protection could be reinstated by a
subsequent request for counsel, it could pass in and out of
existence multiple times, a vagary that would spread confusion
through the justice system and lead to a loss of respect for the
underlying constitutional principle. And such an exception would
leave uncertain the sort of consultation required to displace
In addition, allowing a suspect whose counsel
Page 498 U. S. 147
prompt to lose Edwards'
protection while one whose
counsel is dilatory would not distort the proper conception of an
attorney's duty to his client and set a course at odds with what
ought to be effective representation. Since Minnick's interrogation
was initiated by the police in a formal interview which he was
compelled to attend, after Minnick had previously made a specific
request for counsel, it was impermissible. Pp. 498 U. S.
(Miss.1988), reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. SCALIA, J.,
filed a dissenting opinion, in which REHNQUIST, C.J., joined,
p. 498 U. S. 156
SOUTER, J., took no part in the consideration or decision of the
Justice KENNEDY delivered the opinion of the Court.
To protect the privilege against self-incrimination guaranteed
by the Fifth Amendment, we have held that the police must terminate
interrogation of an accused in custody if the accused requests the
assistance of counsel. Miranda v. Arizona, 384 U.
, 384 U. S. 474
(1966). We reinforced the protections of Miranda
Edwards v. Arizona, 451 U. S. 477
451 U. S.
-485 (1981), which held that, once the accused
requests counsel, officials may not reinitiate questioning "until
counsel has been made available" to him. The issue in the case
before us is whether Edwards'
protection ceases once the
suspect has consulted with an attorney.
Page 498 U. S. 148
Petitioner Robert Minnick and fellow prisoner James Dyess
escaped from a county jail in Mississippi and, a day later, broke
into a mobile home in search of weapons. In the course of the
burglary, they were interrupted by the arrival of the trailer's
owner, Ellis Thomas, accompanied by Lamar Lafferty and Lafferty's
infant son. Dyess and Minnick used the stolen weapons to kill
Thomas and the senior Lafferty. Minnick's story is that Dyess
murdered one victim and forced Minnick to shoot the other. Before
the escapees could get away, two young women arrived at the mobile
home. They were held at gunpoint, then bound hand and foot. Dyess
and Minnick fled in Thomas' truck, abandoning the vehicle in New
Orleans. The fugitives continued to Mexico, where they fought, and
Minnick then proceeded alone to California. Minnick was arrested in
Lemon Grove, California, on a Mississippi warrant, some four months
after the murders.
The confession at issue here resulted from the last
interrogation of Minnick while he was held in the San Diego jail,
but we first recount the events which preceded it. Minnick was
arrested on Friday, August 22, 1986. Petitioner testified that he
was mistreated by local police during and after the arrest. The day
following the arrest, Saturday, two FBI agents came to the jail to
interview him. Petitioner testified that he refused to go to the
interview, but was told he would "have to go down or else." App.
45. The FBI report indicates that the agents read petitioner his
warnings, and that he acknowledged he understood
his rights. He refused to sign a rights waiver form, however, and
said he would not answer "very many" questions. Minnick told the
agents about the jail break and the flight, and described how Dyess
threatened and beat him. Early in the interview, he sobbed "[i]t
was my life or theirs," but otherwise he hesitated to tell what
happened at the trailer. The agents reminded him he did not have to
answer questions without a lawyer present. According to the
"Minnick stated 'Come back Monday when I have a lawyer,'
Page 498 U. S. 149
and stated that he would make a more complete statement then
with his lawyer present."
App. 16. The FBI interview ended.
After the FBI interview, an appointed attorney met with
petitioner. Petitioner spoke with the lawyer on two or three
occasions, though it is not clear from the record whether all of
these conferences were in person.
On Monday, August 25, Deputy Sheriff J.C. Denham of Clarke
County, Mississippi, came to the San Diego jail to question
Minnick. Minnick testified that his jailers again told him he would
"have to talk" to Denham, and that he "could not refuse."
at 45. Denham advised petitioner of his rights, and
petitioner again declined to sign a rights waiver form. Petitioner
told Denham about the escape, and then proceeded to describe the
events at the mobile home. According to petitioner, Dyess jumped
out of the mobile home and shot the first of the two victims, once
in the back with a shotgun and once in the head with a pistol.
Dyess then handed the pistol to petitioner and ordered him to shoot
the other victim, holding the shotgun on petitioner until he did
so. Petitioner also said that, when the two girls arrived, he
talked Dyess out of raping or otherwise hurting them.
Minnick was tried for murder in Mississippi. He moved to
suppress all statements given to the FBI or other police officers,
including Denham. The trial court denied the motion with respect to
petitioner's statements to Denham, but suppressed his other
statements. Petitioner was convicted on two counts of capital
murder, and sentenced to death.
On appeal, petitioner argued that the confession to Denham was
taken in violation of his rights to counsel under the Fifth and
Sixth Amendments. The Mississippi Supreme Court rejected the
claims. With respect to the Fifth Amendment aspect of the case, the
court found "the Edwards
bright-line rule as to
initiation" inapplicable. 551 So.
, 83 (1988). Relying on language in Edwards
indicating that the bar on interrogating the accused after a
request for counsel
Page 498 U. S. 150
applies "until counsel has been made available to him,'"
ibid., quoting Edwards v. Arizona, supra, 451
U.S. at 451 U. S.
484-485, the court concluded that "[s]ince counsel was
made available to Minnick, his Fifth Amendment right to counsel was
satisfied." 551 So. 2d at 83. The court also rejected the Sixth
Amendment claim, finding that petitioner waived his Sixth Amendment
right to counsel when he spoke with Denham. Id. at 83-85.
We granted certiorari, 495 U.S. (1990), and, without reaching any
Sixth Amendment implications in the case, we decide that the Fifth
Amendment protection of Edwards is not terminated or
suspended by consultation with counsel.
In Miranda v. Arizona, supra,
384 U.S. at 384 U. S. 474
we indicated that, once an individual in custody invokes his right
to counsel, interrogation "must cease until an attorney is
present"; at that point, "the individual must have an opportunity
to confer with the attorney and to have him present during any
subsequent questioning." Edwards
gave force to these
admonitions, finding it
"inconsistent with Miranda
and its progeny for the
authorities, at their instance, to reinterrogate an accused in
custody if he has clearly asserted his right to counsel."
451 U.S. at 451 U. S. 485
We held that
"when an accused has invoked his right to have counsel present
during custodial interrogation, a valid waiver of that right cannot
be established by showing only that he responded to further
police-initiated custodial interrogation even if he has been
advised of his rights."
at 451 U. S. 484
Further, an accused who requests an attorney,
"having expressed his desire to deal with the police only
through counsel, 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."
at 451 U. S.
is "designed to prevent police from badgering a
defendant into waiving his previously asserted Miranda
rights." Michigan v. Harvey, 494 U.
, 494 U. S. 350
Page 498 U. S. 151
See also Smith v. Illinois, 469 U. S.
, 469 U. S. 98
(1984). The rule ensures that any statement made in subsequent
interrogation is not the result of coercive pressures.
conserves judicial resources which would otherwise
be expended in making difficult determinations of voluntariness,
and implements the protections of Miranda
in practical and
The merit of the Edwards
decision lies in the clarity
of its command and the certainty of its application. We have
confirmed that the Edwards
rule provides "clear and
unequivocal' guidelines to the law enforcement profession."
Arizona v. Roberson, 486 U. S. 675,
486 U. S. 682
(1988). Cf. Moran v. Burbine, 475 U.
S. 412, 475 U. S.
425-426 (1986). Even before Edwards, we noted
"relatively rigid requirement that interrogation must cease upon
the accused's request for an attorney . . . has the virtue of
informing police and prosecutors with specificity as to what they
may do in conducting custodial interrogation, and of informing
courts under what circumstances statements obtained during such
interrogation are not admissible. This gain in specificity, which
benefits the accused and the State alike, has been thought to
outweigh the burdens that the decision in Miranda
on law enforcement agencies and the courts by requiring the
suppression of trustworthy and highly probative evidence even
though the confession might be voluntary under traditional Fifth
Fare v. Michael C., 442 U. S. 707
442 U. S. 718
(1979). This pre-Edwards
explanation applies as well to
and its progeny. Arizona v. Roberson,
486 U.S. at 486 U. S.
The Mississippi Supreme Court relied on our statement in
that an accused who invokes his right to counsel
"is not subject to further interrogation by the authorities until
counsel has been made available to him. . . ." 451 U.S. at
451 U. S.
-485. We do not interpret this language to mean, as
the Mississippi court thought, that the protection of
terminates once counsel has consulted with the
Page 498 U. S. 152
context, the requirement that counsel be "made available" to the
accused refers to more than an opportunity to consult with an
attorney outside the interrogation room.
we focused on Miranda's
instruction that when the accused invokes his right to counsel,
"the interrogation must cease until an attorney is
" 384 U.S. at 384 U. S. 474
(emphasis added), agreeing with Edwards'
he had not waived his right "to have counsel present
during custodial interrogation." 451 U.S. at 451 U. S. 482
(emphasis added). In the sentence preceding the language quoted by
the Mississippi Supreme Court, we referred to the "right to have
counsel present during custodial interrogation," and in the
sentence following, we again quoted the phrase "interrogation
must cease until an attorney is present'" from
Miranda. 451 U.S. at 451 U. S.
484-485 (emphasis added). The full sentence relied on by
the Mississippi Supreme Court, moreover, says:
"We further hold that an accused, such as Edwards, having
expressed his desire to deal with the police only through
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."
Our emphasis on counsel's presence
at interrogation is
not unique to Edwards.
It derives from Miranda,
where we said that, in the cases before us,
"[t]he presence of counsel . . . would be the adequate
protective device necessary to make the process of police
interrogation conform to the dictates of the [Fifth Amendment]
privilege. His presence would insure that statements made in the
government-established atmosphere are not the product of
384 U.S. at 384 U. S. 466
See Fare v. Michael C., supra,
442 U.S. at 442 U. S. 719
Our cases following Edwards
have interpreted the decision
to mean that the authorities may not initiate questioning of the
accused in counsel's absence. Writing for a plurality of the Court,
for instance, then-justice REHNQUIST described the holding of
Page 498 U. S. 153
"that subsequent incriminating statements made without
[Edwards'] attorney present
violated the rights secured to the
defendant by the Fifth and Fourteenth Amendments to the United
Oregon v. Bradshaw, 462 U. S. 1039
462 U. S.
(1983) (emphasis added). See also Arizona v.
486 U.S. at 486 U. S. 680
("The rule of the Edwards
case came as a corollary to
admonition that [i]f the individual states
that he wants an attorney, the interrogation must cease until an
attorney is present'"); Shea v. Louisiana, 470 U. S.
51, 470 U. S. 52
(1985) ("In Edwards v. Arizona, . . . this Court ruled
that a criminal defendant's rights under the Fifth and Fourteenth
Amendments were violated by the use of his confession obtained by
police-instigated interrogation -- without counsel present -- after
he requested an attorney"). These descriptions of Edwards'
holding are consistent with our statement that
"[p]reserving the integrity of an accused's choice to
communicate with police only through counsel is the essence of
and its progeny."
Patterson v. Illinois, 487 U.
, 487 U. S. 291
(1988). In our view, a fair reading of Edwards
subsequent cases demonstrates that we have interpreted the rule to
bar police-initiated interrogation unless the accused has counsel
with him at the time of questioning. Whatever the ambiguities of
our earlier cases on this point, we now hold that, when counsel is
requested, interrogation must cease, and officials may not
reinitiate interrogation without counsel present, whether or not
the accused has consulted with his attorney.
We consider our ruling to be an appropriate and necessary
application of the Edwards
rule. A single consultation
with an attorney does not remove the suspect from persistent
attempts by officials to persuade him to waive his rights, or from
the coercive pressures that accompany custody and that may increase
as custody is prolonged. The case before us well illustrates the
pressures, and abuses, that may be concomitants of custody.
Petitioner testified that, though he resisted, he was required to
submit to both the FBI and the
Page 498 U. S. 154
Denham interviews. In the latter instance, the compulsion to
submit to interrogation followed petitioner's unequivocal request
during the FBI interview that questioning cease until counsel was
present. The case illustrates also that consultation is not always
effective in instructing the suspect of his rights. One plausible
interpretation of the record is that petitioner thought he could
keep his admissions out of evidence by refusing to sign a formal
waiver of rights. If the authorities had complied with Minnick's
request to have counsel present during interrogation, the attorney
could have corrected Minnick's misunderstanding, or indeed
counseled him that he need not make a statement at all. We decline
to remove protection from police-initiated questioning based on
isolated consultations with counsel who is absent when the
The exception to Edwards
here proposed is inconsistent
purpose to protect the suspect's right to
have counsel present at custodial interrogation. It is inconsistent
as well with Miranda,
where we specifically rejected
respondent's theory that the opportunity to consult with one's
attorney would substantially counteract the compulsion created by
custodial interrogation. We noted in Miranda
"[e]ven preliminary advice given to the accused by his own
attorney can be swiftly overcome by the secret interrogation
process. Thus the need for counsel to protect the Fifth Amendment
privilege comprehends not merely a right to consult with counsel
prior to questioning, but also to have counsel present during any
questioning if the defendant so desires."
384 U.S. at 384 U. S. 470
The exception proposed, furthermore, would undermine the
advantages flowing from Edwards'
"clear and unequivocal"
character. Respondent concedes that, even after consultation with
counsel, a second request for counsel should reinstate the
protection. We are invited by this formulation to
adopt a regime in which Edwards'
protection could pass in
and out of existence multiple times prior to arraignment,
Page 498 U. S. 155
at which point the same protection might reattach by virtue of
our Sixth Amendment jurisprudence, see Michigan v.
Jackson, 475 U. S. 625
(1986). Vagaries of this sort spread confusion through the justice
system and lead to a consequent loss of respect for the underlying
In addition, adopting the rule proposed would leave far from
certain the sort of consultation required to displace
Consultation is not a precise concept, for it may
encompass variations from a telephone call to say that the attorney
is in route, to a hurried interchange between the attorney and
client in a detention facility corridor, to a lengthy in-person
conference in which the attorney gives full and adequate advice
respecting all matters that might be covered in further
interrogations. And even with the necessary scope of consultation
settled, the officials in charge of the case would have to confirm
the occurrence and, possibly, the extent of consultation to
determine whether further interrogation is permissible. The
necessary inquiries could interfere with the attorney-client
Added to these difficulties in definition and application of the
proposed rule is our concern over its consequence that the suspect
whose counsel is prompt would lose the protection of
while the one whose counsel is dilatory would
not. There is more than irony to this result. There is a strong
possibility that it would distort the proper conception of the
attorney's duty to the client and set us on a course at odds with
what ought to be effective representation.
Both waiver of rights and admission of guilt are consistent with
the affirmation of individual responsibility that is a principle of
the criminal justice system. It does not detract from this
principle, however, to insist that neither admissions nor waivers
are effective unless there are both particular and systemic
assurances that the coercive pressures of custody were not the
inducing cause. The Edwards
rule sets forth a specific
standard to fulfill these purposes, and we have declined
Page 498 U. S. 156
to confine it in other instances. See Arizona v.
Roberson, 486 U. S. 675
(1988). It would detract from the efficacy of the rule to remove
its protections based on consultation with counsel.
does not foreclose finding a waiver of Fifth
Amendment protections after counsel has been requested, provided
the accused has initiated the conversation or discussions with the
authorities; but that is not the case before us. There can be no
doubt that the interrogation in question was initiated by the
police; it was a formal interview which petitioner was compelled to
attend. Since petitioner made a specific request for counsel before
the interview, the police-initiated interrogation was
impermissible. Petitioner's statement to Denham was not admissible
The judgment is reversed and the case remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
Justice SOUTER took no part in the consideration or decision of
Justice SCALIA, with whom THE CHIEF JUSTICE joins,
The Court today establishes an irrebuttable presumption that a
criminal suspect, after invoking his Miranda
counsel, can never validly waive that right during any
police-initiated encounter, even after the suspect has been
provided multiple Miranda
warnings and has actually
consulted his attorney. This holding builds on foundations already
established in Edwards v. Arizona, 451 U.
(1981), but "the rule of Edwards
rule, not a constitutional command; and it is our obligation to
justify its expansion." Arizona v. Roberson, 486 U.
, 486 U. S. 688
(1988) (KENNEDY, J., dissenting). Because I see no justification
for applying the Edwards
irrebuttable presumption when a
criminal suspect has actually consulted with his attorney, I
Page 498 U. S. 157
Some recapitulation of pertinent facts is in order, given the
Court's contention that "[t]he case before us well illustrates the
pressures, and abuses, that may be concomitants of custody."
at 498 U. S. 153
It is undisputed that the FBI agents who first interviewed Minnick
on Saturday, August 23, 1986, advised him of his Miranda
rights before any questioning began. Although he refused to sign
Page 498 U. S. 158
waiver form, he agreed to talk to the agents, and described his
escape from prison in Mississippi and the ensuing events. When he
came to what happened at the trailer, however, Minnick hesitated.
The FBI agents then reminded him that he did not have to answer
questions without a lawyer present. Minnick indicated that he would
finish his account on Monday, when he had a lawyer, and the FBI
agents terminated the interview forthwith.
Minnick was then provided with an attorney, with whom he
consulted several times over the weekend. As Minnick testified at a
subsequent suppression hearing:
"I talked to [my attorney] two different times and -- it might
have been three different times. . . . He told me that first day
that he was my lawyer and that he was appointed to me and not to
talk to nobody and not tell nobody nothing and to not sign no
waivers and not sign no extradition papers or sign anything and
that he was going to get a court order to have any of the police --
I advised him of the FBI talking to me and he advised me not to
tell anybody anything that he was going to get a court order drawn
up to restrict anybody talking to me outside of the San Diego
On Monday morning, Minnick was interviewed by Deputy Sheriff
J.C. Denham, who had come to San Diego from Mississippi. Before the
interview, Denham reminded Minnick of his Miranda
Minnick again refused to sign a waiver form, but he did talk with
Denham, and did not ask for his attorney. As Minnick recalled at
the hearing, he and Denham
"went through several different conversations about -- first,
about how everybody was back in the county jail and what everybody
was doing, had he heard from Mama and had -- he went and talked to
Mama and had he seen my brother, Tracy, and several different other
questions pertaining to such things as that. And, we went off into
how the escape went down at the county jail. . . ."
App. 50. Minnick then proceeded to describe his participation in
the double murder at the trailer.
Minnick was later extradited and tried for murder in
Mississippi. Before trial, he moved to suppress the statements he
had given the FBI agents and Denham in the San Diego jail. The
trial court granted the motion with respect to the statements made
to the FBI agents, but ordered a hearing on the admissibility of
the statements made to Denham. After receiving testimony from both
Minnick and Denham, the court concluded that Minnick's confession
had been "freely and voluntarily given from the evidence beyond a
reasonable doubt," id.
at 25, and allowed Denham to
describe Minnick's confession to the jury.
The Court today reverses the trial court's conclusion. It holds
that, because Minnick had asked for counsel during the interview
with the FBI agents, he could not -- as a matter of law -- validly
waive the right to have counsel present during the conversation
initiated by Denham. That Minnick's original request to see an
attorney had been honored, that Minnick had consulted with his
attorney on several occasions, and that the attorney had
specifically warned Minnick not to speak to the authorities, are
irrelevant. That Minnick was familiar with the criminal justice
system in general or Miranda
warnings in particular (he
had previously been convicted of robbery in Mississippi and assault
with a deadly
Page 498 U. S. 159
weapon in California) is also beside the point. The confession
must be suppressed, not because it was "compelled," nor even
because it was obtained from an individual who could realistically
be assumed to be unaware of his rights, but simply because this
Court sees fit to prescribe as a "systemic assuranc[e],"
at 498 U. S. 155
that a person in custody who has once asked for counsel cannot
thereafter be approached by the police unless counsel is present.
Of course the Constitution's proscription of compelled testimony
does not remotely authorize this incursion upon state practices;
and even our recent precedents are not a valid excuse.
In Miranda v. Arizona, 384 U.
(1966), this Court declared that a criminal
suspect has a right to have counsel present during custodial
interrogation, as a prophylactic assurance that the "inherently
compelling pressures," id.
at 384 U. S. 467
of such interrogation will not violate the Fifth Amendment. But
did not hold that these "inherently compelling
pressures" precluded a suspect from waiving his right to have
counsel present. On the contrary, the opinion recognized that a
State could establish that the suspect "knowingly and intelligently
waived . . . his right to retained or appointed counsel."
at 384 U. S. 475
For this purpose, the Court expressly adopted the "high standar[d]
of proof for the waiver of constitutional rights," ibid.,
set forth in Johnson v. Zerbst, 304 U.
waiver standard, and the means of applying
it, are familiar: Waiver is "an intentional relinquishment or
abandonment of a known right or privilege," id.
304 U. S. 464
and whether such a relinquishment or abandonment has occurred
"in each case, upon the particular facts and circumstances
surrounding that case, including the background, experience, and
conduct of the accused,"
We have applied the Zerbst
many contexts where a State bears the burden of showing a waiver of
Page 498 U. S. 160
procedural rights. See, e.g., Faretta v. California,
422 U. S. 806
422 U. S. 835
(1975) (right to the assistance of counsel at trial); Brookhart
v. Janis, 384 U. S. 1
384 U. S. 4
(right to confront adverse witnesses); Adams v. United States
ex rel. McCann, 317 U. S. 269
317 U. S.
-280 (1942) (right to trial by jury).
Notwithstanding our acknowledgment that Miranda
"not themselves rights protected by the Constitution, but . . .
instead measures to insure that the right against compulsory
self-incrimination [is] protected,"
Michigan v. Tucker, 417 U. S. 433
417 U. S. 444
(1974), we have adhered to the principle that nothing less than the
standard for the waiver of constitutional rights
applies to the waiver of Miranda
however, we refrained from imposing on the States
standard for the waiver of Miranda
rights. For example, in Michigan v. Mosley, 423 U. S.
(1975), we rejected a proposed irrebuttable
presumption that a criminal suspect, after invoking the
right to remain silent, could not validly waive
the right during any subsequent questioning by the police. In
North Carolina v. Butler, 441 U.
(1979) we rejected a proposed rule that waivers
rights must be deemed involuntary absent an
explicit assertion of waiver by the suspect. And in Fare v.
Michael C., 442 U. S. 707
442 U. S.
-727 (1979) we declined to hold that waivers of
rights by juveniles are per se
however, broke with this approach, holding
that a defendant's waiver of his Miranda
right to counsel,
made in the course of a police-initiated encounter after he had
requested counsel but before counsel had been provided, was per
involuntary. The case stands as a solitary exception to our
waiver jurisprudence. It does, to be sure, have the desirable
consequences described in today's opinion. In the narrow context in
which it applies, it provides 100% assurance against confessions
that are "the result of coercive pressures," ante
498 U. S. 151
it "prevent[s] police from badgering a
Page 498 U. S.
defendant,'" ibid. (quoting Michigan v.
Harvey, 494 U. S. 344,
494 U. S. 350
(1990)); it "conserves judicial resources which would otherwise be
expended in making difficult determinations of voluntariness,"
ante at 498 U. S. 151;
and it provides " `"clear and unequivocal" guidelines to the law
enforcement profession,'" ibid. (quoting Arizona v.
Roberson, 486 U.S. at
486 U. S. 682). But so would a rule that simply excludes
all confessions by all persons in police custody. The value of any
prophylactic rule (assuming the authority to adopt a prophylactic
rule) must be assessed not only on the basis of what is gained, but
also on the basis of what is lost. In all other contexts, we have
thought the above-described consequences of abandoning
Zerbst outweighed by "`the need for police questioning as
a tool for effective enforcement of criminal laws,'" Moran v.
Burbine, 475 U. S. 412,
475 U. S. 426
(1986). "Admissions of guilt," we have said,
"are more than merely 'desirable;' they are essential to
society's compelling interest in finding, convicting, and punishing
those who violate the law."
In this case, of course, we have not been called upon to
but simply to determine whether its
irrebuttable presumption should continue after a suspect has
actually consulted with his attorney. Whatever justifications might
are even less convincing in this
Most of the Court's discussion of Edwards
stresses repeatedly, in various formulations, the case's emphasis
upon "the right to have counsel present during
custodial interrogation,'" ante at 498 U. S. 152,
quoting 451 U.S. at 451 U. S. 482
(emphasis added by the Court) -- is beside the point. The existence
and the importance of the Miranda-created right "to have
counsel present" are unquestioned here. What is questioned
is why a State should not be given the opportunity to prove (under
Zerbst) that the right was voluntarily waived by
a suspect who, after having been read his Miranda rights
Page 498 U. S. 162
having consulted with counsel at least twice, chose to speak to
a police officer (and to admit his involvement in two murders)
without counsel present.
did not assert the principle that no waiver of
right "to have counsel present
possible. It simply adopted the presumption that no waiver is
in certain circumstances, and the issue before
us today is how broadly those circumstances are to be defined. They
should not, in my view, extend beyond the circumstances present in
itself -- where the suspect in custody asked to
consult an attorney, and was interrogated before that attorney had
ever been provided. In those circumstances, the Edwards
rule rests upon an assumption similar to that of Miranda
itself: that, when a suspect in police custody is first questioned,
he is likely to be ignorant of his rights and to feel isolated in a
hostile environment. This likelihood is thought to justify special
protection against unknowing or coerced waiver of rights. After a
suspect has seen his request for an attorney honored, however, and
has actually spoken with that attorney, the probabilities change.
The suspect then knows that he has an advocate on his side, and
that the police will permit him to consult that advocate. He almost
certainly also has a heightened awareness (above what the
warning itself will provide) of his right to
remain silent -- since, at the earliest opportunity, "any lawyer
worth his salt will tell the suspect in no uncertain terms to make
no statement to the police under any circumstances." Watts v.
Indiana, 338 U. S. 49
338 U. S. 59
(1949) (Opinion of Jackson, J.).
Under these circumstances, an irrebuttable presumption that any
police-prompted confession is the result of ignorance of rights, or
of coercion, has no genuine basis in fact. After the first
consultation, therefore, the Edwards
should cease to apply. Does this mean, as the Court implies, that
the police will thereafter have license to "badger" the suspect?
Only if all one means by "badger" is asking, without such
insistence or frequency as would constitute coercion,
Page 498 U. S. 163
whether he would like to reconsider his decision not to confess.
Nothing in the Constitution (the only basis for our intervention
here) prohibits such inquiry, which may often produce the desirable
result of a voluntary confession. If and when post-consultation
police inquiry becomes so protracted or threatening as to
constitute coercion, the Zerbst
standard will afford the
One should not underestimate the extent to which the Court's
expansion of Edwards
constricts law enforcement. Today's
ruling, that the invocation of a right to counsel permanently
prevents a police-initiated waiver, makes it largely impossible for
the police to urge a prisoner who has initially declined to confess
to change his mind -- or indeed, even to ask whether he has changed
his mind. Many persons in custody will invoke the Miranda
right to counsel during the first interrogation, so that the
permanent prohibition will attach at once. Those who do not do so
will almost certainly request or obtain counsel at arraignment. We
have held that a general request for counsel, after the Sixth
Amendment right has attached, also triggers the Edwards
prohibition of police-solicited confessions, see Michigan v.
Jackson, 475 U. S. 625
(1986), and I presume that the perpetuality of prohibition
announced in today's opinion applies in that context as well.
"Perpetuality" is not too strong a term, since, although the Court
rejects one logical moment at which the Edwards
presumption might end, it suggests no alternative. In this case,
Minnick was reapproached by the police three days after he
requested counsel, but the result would presumably be the same if
it had been three months, or three years, or even three decades.
This perpetual irrebuttable presumption will apply, I might add,
not merely to interrogations involving the original crime, but to
those involving other subjects as well. See Arizona v.
Roberson, 486 U. S. 675
Besides repeating the uncontroverted proposition that the
suspect has a "right to have counsel present," the Court stresses
the clarity and simplicity that are achieved by today's
Page 498 U. S. 164
holding. Clear and simple rules are desirable, but only in
pursuance of authority that we possess. We are authorized by the
Fifth Amendment to exclude confessions that are "compelled," which
we have interpreted to include confessions that the police obtain
from a suspect in custody without a knowing and voluntary waiver of
his right to remain silent. Undoubtedly some bright-line rules can
be adopted to implement that principle, marking out the situations
in which knowledge or voluntariness cannot possibly be established
-- for example, a rule excluding confessions obtained after five
hours of continuous interrogation. But a rule excluding all
confessions that follow upon even the slightest police inquiry
cannot conceivably be justified on this basis. It does not rest
upon a reasonable prediction that all such confessions, or even
most such confessions, will be unaccompanied by a knowing and
It can be argued that the same is true of the category of
confessions excluded by the Edwards
rule itself. I think
that is so, but, as I have discussed above, the presumption of
involuntariness is at least more plausible for that category. There
is, in any event, a clear and rational line between that category
and the present one, and I see nothing to be said for expanding
upon a past mistake. Drawing a distinction between police-initiated
inquiry before consultation with counsel and police-initiated
inquiry after consultation with counsel is assuredly more
reasonable than other distinctions Edwards
has already led
us into -- such as the distinction between police-initiated inquiry
after assertion of the Miranda
right to remain silent, and
police-initiated inquiry after assertion of the Miranda
right to counsel, see
Kamisar, The Edwards
Cases: The Court Giveth and the Court Taketh
Away, in 5 The Supreme Court: Trends and Developments 157 (J.
Choper, Y. Kamisar, & L. Tribe eds. 1984) ("[E]ither
was wrongly decided or Edwards
the distinction between what is needed to prove waiver of the
Page 498 U. S. 165
right to have counsel present and what is
needed to prove waiver of rights found in the Constitution.
The rest of the Court's arguments can be answered briefly. The
suggestion that it will either be impossible or ethically
impermissible to determine whether a "consultation" between the
suspect and his attorney has occurred is alarmist. Since, as I have
described above, the main purpose of the consultation requirement
is to eliminate the suspect's feeling of isolation and to assure
him the presence of legal assistance, any discussion between him
and an attorney whom he asks to contact, or who is provided to him,
in connection with his arrest, will suffice. The precise content of
the discussion is irrelevant.
As for the "irony" that "the suspect whose counsel is prompt
would lose the protection of Edwards,
while the one whose
counsel is dilatory would not," ante
at 498 U. S. 155
There seems to me no irony in applying a special protection only
when it is needed. The Edwards
rule is premised on an
(already tenuous) assumption about the suspect's psychological
state, and, when the event of consultation renders that assumption
invalid, the rule should no longer apply. One searching for ironies
in the state of our law should consider, first, the irony created
itself: The suspect in custody who says
categorically "I do not wish to discuss this matter" can be asked
to change his mind; but if he should say, more tentatively, "I do
not think I should discuss this matter without my attorney present"
he can no longer be approached. To that there is added, by today's
decision, the irony that it will be far harder for the state to
establish a knowing and voluntary waiver of Fifth Amendment rights
by a prisoner who has already consulted with counsel than by a
newly arrested suspect.
Finally, the Court's concern that "Edwards'
could pass in and out of existence multiple times," ante
at 498 U. S. 154
does not apply to the resolution of the matter I have proposed.
Page 498 U. S. 166
would cease to apply, permanently, once
consultation with counsel has occurred.
* * * *
Today's extension of the Edwards
prohibition is the
latest stage of prophylaxis built upon prophylaxis, producing a
veritable fairyland castle of imagined constitutional restriction
upon law enforcement. This newest tower, according to the Court, is
needed to avoid "inconsisten[cy] with [the] purpose" of
prophylactic rule, ante
at 498 U. S. 154
which was needed to protect Miranda's
to have counsel present, which was needed to protect the right
against compelled self-incrimination
found (at last!) in
It seems obvious to me that, even in Edwards
surely in today's decision, we have gone far beyond any genuine
concern about suspects who do not know their right to remain
silent, or who have been coerced
to abandon it. Both
holdings are explicable, in my view, only as an effort to protect
suspects against what is regarded as their own folly. The
sharp-witted criminal would know better than to confess; why should
the dull-witted suffer for his lack of mental endowment? Providing
him an attorney at every stage where he might be induced or
persuaded (though not coerced) to incriminate himself will even the
odds. Apart from the fact that this protective enterprise is beyond
our authority under the Fifth Amendment or any other provision of
the Constitution, it is unwise. The procedural protections of the
Constitution protect the guilty as well as the innocent, but it is
not their objective to set the guilty free. That some clever
criminals may employ those protections to their advantage is poor
reason to allow criminals who have not done so to escape
Thus, even if I were to concede that an honest confession is a
foolish mistake, I would welcome rather than reject it; a rule that
foolish mistakes do not count would leave most offenders
Page 498 U. S. 167
not only unconvicted but undetected. More fundamentally,
however, it is wrong, and subtly corrosive of our criminal justice
system, to regard an honest confession as a "mistake." While every
person is entitled to stand silent, it is more virtuous for the
wrongdoer to admit his offense and accept the punishment he
deserves. Not only for society, but for the wrongdoer himself,
"admissio[n] of guilt . . . , if not coerced, [is] inherently
desirable," United States v. Washington, 431 U.
, 431 U. S. 187
(1977), because it advances the goals of both "justice and
rehabilitation." Michigan v. Tucker,
417 U.S. at
417 U. S. 448
n. 23 (emphasis added). A confession is rightly regarded by the
sentencing guidelines as warranting a reduction of sentence,
because it "demonstrates a recognition and affirmative acceptance
of personal responsibility for . . . criminal conduct," U.S.
Sentencing Commission, Guidelines Manual § 3E1.1 (1988), which is
the beginning of reform. We should, then, rejoice at an honest
confession, rather than pity the "poor fool" who has made it; and
we should regret the attempted retraction of that good act, rather
than seek to facilitate and encourage it. To design our laws on
premises contrary to these is to abandon belief in either personal
responsibility or the moral claim of just government to obedience.
Caplan, Questioning Miranda,
1417, 1471-1473 (1985). Today's decision is misguided, it seems to
me, in so readily exchanging, for marginal, super-Zerbst
protection against genuinely compelled testimony, investigators'
ability to urge, or even ask, a person in custody to do what is