Charged with an armed robbery in West Allis, Wisconsin,
petitioner McNeil was represented by a public defender at a bail
hearing. While in jail on that charge, he was questioned by police
about a murder and related crimes in Caledonia, Wisconsin. He was
advised of his
Miranda rights, signed forms waiving them,
and made statements incriminating himself in the Caledonia
offenses. He was then formally charged with the latter crimes, his
pretrial motion to suppress his statements was denied, and he was
convicted. His conviction was affirmed on appeal, the State Supreme
Court holding that an accused's request for counsel at an initial
appearance on a charged offense does not constitute an invocation
of his Fifth Amendment right to counsel that precludes police
interrogation on unrelated, uncharged offenses.
Held: An accused's invocation of his Sixth Amendment
right to counsel during a judicial proceeding does not constitute
an invocation of the right to counsel derived by
Miranda v.
Arizona, 384 U. S. 436,
from the Fifth Amendment's guarantee against compelled
self-incrimination. Pp.
501 U. S.
175-182.
(a) The identity between the two rights that McNeil asserts is
false as a matter of fact. The Sixth Amendment right, which does
not attach until the initiation of adversary judicial proceedings,
is offense-specific,
Maine v. Moulton, 474 U.
S. 159,
474 U. S.
179-180 and n. 16, as is its effect, under
Michigan
v. Jackson, 475 U. S. 625, of
invalidating subsequent waivers during police-initiated
questioning. Thus, McNeil's invocation of that right with respect
to the West Allis robbery poses no bar to the admission of his
statements regarding the Caledonia crimes, with which he had not
been charged at the time he made the statements. Moreover, although
the
Miranda right to counsel is non-offense-specific,
Arizona v. Roberson, 486 U. S. 675,
and, once asserted, prevents any further police-initiated
interrogation outside the presence of counsel,
Edwards v.
Arizona, 451 U. S. 477,
451 U. S.
484-485, its assertion cannot be inferred from the
invocation of the Sixth Amendment right in light of the differing
purposes and effects of the two rights. The Sixth Amendment right
is intended to protect the unaided layman at critical
confrontations with the government after the initiation of the
adversary process with respect to a particular crime,
United
States v. Gouveia, 467 U. S. 180,
467 U. S. 189.
The
Miranda-Edwards guarantee is intended to protect the
suspect's
Page 501 U. S. 172
"desire to deal with the police only through counsel,"
Edwards, supra, 451 U.S. at
451 U. S. 484.
Requesting the assistance of an attorney at a bail hearing does not
satisfy the minimum requirement of some statement that can
reasonably be construed as an expression of a desire for counsel in
dealing with custodial interrogation by the police. Pp.
501 U. S.
175-1780.
(b) Nor will this Court declare as a matter of sound policy
(assuming the existence of such expansive power) that assertion of
the Sixth Amendment right implies invocation of the
Miranda right. McNeil's proposed rule offers only
insignificant advantages, and would seriously impede effective law
enforcement by precluding uncounseled but uncoerced admissions of
guilt pursuant to valid
Miranda waivers. Pp.
501 U. S.
180-182.
155 Wis.2d 24,
454 N.W.2d
742 (1990), affirmed.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, O'CONNOR, KENNEDY, and SOUTER, JJ.,
joined. KENNEDY, J., filed a concurring opinion,
post, p.
501 U. S. 183.
STEVENS, J., filed a dissenting opinion, in which MARSHALL and
BLACKMUN, JJ., joined,
post, p.
501 U. S.
183.
Page 501 U. S. 173
JUSTICE SCALIA delivered the opinion of the Court.
This case presents the question whether an accused's invocation
of his Sixth Amendment right to counsel during a judicial
proceeding constitutes an invocation of his
Miranda right
to counsel.
I
Petitioner Paul McNeil was arrested in Omaha, Nebraska, in May,
1987, pursuant to a warrant charging him with an armed robbery in
West Allis, Wisconsin, a suburb of Milwaukee. Shortly after his
arrest, two Milwaukee County deputy sheriffs arrived in Omaha to
retrieve him. After advising him of his
Miranda rights,
the deputies sought to question him. He refused to answer any
questions, but did not request an attorney. The deputies promptly
ended the interview.
Once back in Wisconsin, petitioner was brought before a
Milwaukee County court commissioner on the armed robbery charge.
The Commissioner set bail and scheduled a preliminary examination.
An attorney from the Wisconsin Public Defender's office represented
petitioner at this initial appearance.
Later that evening, Detective Joseph Butts of the Milwaukee
County Sheriff's Department visited petitioner in jail. Butts had
been assisting the Racine County, Wisconsin, police in their
investigation of a murder, attempted murder, and armed burglary in
the town of Caledonia; petitioner was a suspect. Butts advised
petitioner of his
Miranda rights, and petitioner signed a
form waiving them. In this
Page 501 U. S. 174
first interview, petitioner did not deny knowledge of the
Caledonia crimes, but said that he had not been involved.
Butts returned two days later with detectives from Caledonia. He
again began the encounter by advising petitioner of his
Miranda rights, and providing a waiver form. Petitioner
placed his initials next to each of the warnings and signed the
form. This time, petitioner admitted that he had been involved in
the Caledonia crimes, which he described in detail. He also
implicated two other men, Willie Pope and Lloyd Crowley. The
statement was typed up by a detective and given to petitioner to
review. Petitioner placed his initials next to every reference to
himself and signed every page.
Butts and the Caledonia Police returned two days later, having
in the meantime found and questioned Pope, who convinced them that
he had not been involved in the Caledonia crimes. They again began
the interview by administering the
Miranda warnings, and
obtaining petitioner's signature and initials on the waiver form.
Petitioner acknowledged that he had lied about Pope's involvement
to minimize his own role in the Caledonia crimes, and provided
another statement recounting the events, which was transcribed,
signed, and initialed as before.
The following day, petitioner was formally charged with the
Caledonia crimes and transferred to that jurisdiction. His pretrial
motion to suppress the three incriminating statements was denied.
He was convicted of second-degree murder, attempted first-degree
murder, and armed robbery, and sentenced to 60 years in prison.
On appeal, petitioner argued that the trial court's refusal to
suppress the statements was reversible error. He contended that his
courtroom appearance with an attorney for the West Allis crime
constituted an invocation of the
Miranda right to counsel,
and that any subsequent waiver of that right during
police-initiated questioning regarding
any offense was
invalid. Observing that the State's Supreme
Page 501 U. S. 175
Court had never addressed this issue, the Court of Appeals
certified to that court the following question:
"Does an accused's request for counsel at an initial appearance
on a charged offense constitute an invocation of his fifth
amendment right to counsel that precludes police interrogation on
unrelated, uncharged offenses?"
App. 16.
The Wisconsin Supreme Court answered "no." 155 Wis.2d 24,
454 N.W.2d
742 (1990). We granted certiorari, 498 U.S. 937 (1990).
II
The Sixth Amendment provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence." In
Michigan v.
Jackson, 475 U. S. 625
(1986), we held that, once this right to counsel has attached and
has been invoked, any subsequent waiver during a police-initiated
custodial interview is ineffective. It is undisputed, and we accept
for purposes of the present case, that at the time petitioner
provided the incriminating statements at issue, his Sixth Amendment
right had attached and had been invoked with respect to the
West Allis armed robbery, for which he had been formally
charged.
The Sixth Amendment right, however, is offense-specific. It
cannot be invoked once for all future prosecutions, for it does not
attach until a prosecution is commenced, that is,
"'at or after the initiation of adversary judicial criminal
proceedings -- whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.'"
United States v. Gouveia, 467 U.
S. 180,
467 U. S. 188
(1984) (quoting
Kirby v. Illinois, 406 U.
S. 682,
406 U. S. 689
(1972) (plurality opinion)). And just as the right is
offense-specific, so also its
Michigan v. Jackson effect
of invalidating subsequent waivers in police-initiated interviews
is offense-specific.
"The police have an interest . . . in investigating new or
additional crimes [after an individual is formally charged
Page 501 U. S. 176
with one crime.] . . . [T]o exclude evidence pertaining to
charges as to which the Sixth Amendment right to counsel had not
attached at the time the evidence was obtained, simply because
other charges were pending at that time, would unnecessarily
frustrate the public's interest in the investigation of criminal
activities. . . ."
Maine v. Moulton, 474 U. S. 159,
474 U. S.
179-180 (1985).
"Incriminating statements pertaining to other crimes, as to
which the Sixth Amendment right has not yet attached, are, of
course, admissible at a trial of those offenses."
Id. at
474 U. S. 180,
n. 16.
See also Moran v. Burbine, 475 U.
S. 412,
475 U. S. 431
(1986). Because petitioner provided the statements at issue here
before his Sixth Amendment right to counsel with respect to the
Caledonia offenses had been (or even could have been)
invoked, that right poses no bar to the admission of the statements
in this case.
Petitioner relies, however, upon a different "right to counsel,"
found not in the text of the Sixth Amendment, but in this Court's
jurisprudence relating to the Fifth Amendment guarantee that "[n]o
person . . . shall be compelled in any criminal case to be a
witness against himself." In
Miranda v. Arizona,
384 U. S. 436
(1966), we established a number of prophylactic rights designed to
counteract the "inherently compelling pressures" of custodial
interrogation, including the right to have counsel present.
Miranda did not hold, however, that those rights could not
be waived. On the contrary, the opinion recognized that statements
elicited during custodial interrogation would be admissible if the
prosecution could establish that the suspect "knowingly and
intelligently waived his privilege against self-incrimination and
his right to retained or appointed counsel."
Id. at
384 U. S.
475.
In
Edwards v. Arizona, 451 U.
S. 477 (1981), we established a second layer of
prophylaxis for the
Miranda right to counsel: once a
suspect asserts the right, not only must the
Page 501 U. S. 177
current interrogation cease, but he may not be approached for
further interrogation "until counsel has been made available to
him," 451 U.S. at
451 U. S.
484-485 -- which means, we have most recently held, that
counsel must be present,
Minnick v. Mississippi,
498 U. S. 146
(1990). If the police do subsequently initiate an encounter in the
absence of counsel (assuming there has been no break in custody),
the suspect's statements are presumed involuntary and therefore
inadmissible as substantive evidence at trial, even where the
suspect executes a waiver and his statements would be considered
voluntary under traditional standards. This is "designed to prevent
police from badgering a defendant into waiving his previously
asserted
Miranda rights,"
Michigan v. Harvey,
494 U. S. 344,
494 U. S. 350
(1990). The
Edwards rule, moreover, is
not
offense-specific: once a suspect invokes the
Miranda right
to counsel for interrogation regarding one offense, he may not be
reapproached regarding
any offense unless counsel is
present.
Arizona v. Roberson, 486 U.
S. 675 (1988).
Having described the nature and effects of both the Sixth
Amendment right to counsel and the
Miranda-Edwards "Fifth
Amendment" right to counsel, we come at last to the issue here:
Petitioner seeks to prevail by combining the two of them. He
contends that, although he expressly waived his
Miranda
right to counsel on every occasion he was interrogated, those
waivers were the invalid product of impermissible approaches,
because his prior invocation of the offense-specific Sixth
Amendment right with regard to the West Allis burglary was also an
invocation of the non-offense-specific
Miranda-Edwards
right. We think that is false as a matter of fact and inadvisable
(if even permissible) as a contrary-to-fact presumption of
policy.
As to the former: The purpose of the Sixth Amendment counsel
guarantee -- and hence the purpose of invoking it -- is to
"protec[t] the unaided layman at critical confrontations" with his
"expert adversary," the government,
after "the adverse
Page 501 U. S. 178
positions of government and defendant have solidified" with
respect to a particular alleged crime.
Gouveia, 467 U.S.
at
467 U. S. 189.
The purpose of the
Miranda-Edwards guarantee, on the other
hand -- and hence the purpose of invoking it -- is to protect a
quite different interest: the suspect's "desire to deal with the
police only through counsel,"
Edwards, 451 U.S. at
451 U. S. 484.
This is in one respect narrower than the interest protected by the
Sixth Amendment guarantee (because it relates only to custodial
interrogation), and in another respect broader (because it relates
to interrogation regarding any suspected crime and attaches whether
or not the "adversarial relationship" produced by a pending
prosecution has yet arisen). To invoke the Sixth Amendment interest
is, as a matter of
fact, not to invoke the
Miranda-Edwards interest. One might be quite willing to
speak to the police without counsel present concerning many
matters, but not the matter under prosecution. It can be said,
perhaps, that it is
likely that one who has asked for
counsel's assistance in defending against a prosecution would want
counsel present for all custodial interrogation, even interrogation
unrelated to the charge. That is not necessarily true, since
suspects often believe that they can avoid the laying of charges by
demonstrating an assurance of innocence through frank and
unassisted answers to questions. But even if it were true, the
likelihood that a suspect would wish counsel to be present
is not the test for applicability of
Edwards. The rule of
that case applies only when the suspect "ha[s]
expressed"
his wish for the particular sort of lawyerly assistance that is the
subject of
Miranda. Edwards, supra, 451 U.S. at
451 U. S. 484
(emphasis added). It requires, at a minimum, some statement that
can reasonably be construed to be expression of a desire for the
assistance of an attorney
in dealing with custodial
interrogation by the police. Requesting the assistance of an
attorney at a bail hearing does not bear that construction.
"[T]o find that [the defendant] invoked his Fifth Amendment
right to counsel on the present charges merely by requesting
Page 501 U. S. 179
the appointment of counsel at his arraignment on the unrelated
charge is to disregard the ordinary meaning of that request."
State v. Stewart, 113 Wash. 2d
462, 471,
780 P.2d
844, 849 (1989),
cert. denied, 494 U.S. 1020
(1990).
Our holding in
Michigan v. Jackson, 475 U.
S. 625 (1986), does not, as petitioner asserts,
contradict the foregoing distinction; to the contrary, it
rests upon it. That case, it will be recalled, held that
after the Sixth Amendment right to counsel attaches and is invoked,
any statements obtained from the accused during subsequent
police-initiated custodial questioning regarding the charge at
issue (even if the accused purports to waive his rights) are
inadmissible. The State in
Jackson opposed that outcome on
the ground that assertion of the Sixth Amendment right to counsel
did not realistically constitute the expression (as
Edwards required) of a wish to have counsel present during
custodial interrogation.
See 475 U.S. at
475 U. S.
632-633. Our response to that contention was not that it
did constitute such an expression, but that it
did not
have to, since the relevant question was not whether the
Miranda "Fifth Amendment" right had been asserted, but
whether the Sixth Amendment right to counsel had been waived. We
said that, since our
"settled approach to questions of waiver requires us to give a
broad, rather than a narrow, interpretation to a defendant's
request for counsel, . . . we
presume that the defendant
requests the lawyer's services at every critical stage of the
prosecution."
475 U.S. at
475 U. S. 633
(emphasis added). The holding of
Jackson implicitly
rejects any equivalence in fact between invocation of the Sixth
Amendment right to counsel and the expression necessary to trigger
Edwards. If such invocation constituted a real (as opposed
to merely a legally presumed) request for the assistance of counsel
in custodial interrogation, it would have been quite unnecessary
for
Jackson to go on to establish, as it did, a new Sixth
Amendment rule of no police-initiated
Page 501 U. S. 180
interrogation; we could simply have cited and relied upon
Edwards. [
Footnote
1]
There remains to be considered the possibility that, even though
the assertion of the Sixth Amendment right to counsel does not,
in fact, imply an assertion of the
Miranda "Fifth
Amendment" right, we should declare it to be such as a matter of
sound policy. Assuming we have such an expansive power under the
Constitution, it would not wisely be exercised. Petitioner's
proposed rule has only insignificant advantages. If a suspect does
not wish to communicate with the police except through an attorney,
he can simply tell them that when they give him the
Miranda warnings. There is not the remotest chance that he
will feel "badgered" by their asking to talk to him without counsel
present, since the subject will not be the charge on which he has
already requested counsel's assistance (for in that event,
Jackson would preclude initiation of the interview), and
he will not have rejected uncounseled interrogation on
any
subject before (for, in that event,
Edwards would preclude
initiation of the interview). The proposed rule would, however,
seriously impede effective law enforcement. The Sixth Amendment
right to
Page 501 U. S. 181
counsel attaches at the first formal proceeding against an
accused, and in most States, at least with respect to serious
offenses, free counsel is made available at that time and
ordinarily requested. Thus, if we were to adopt petitioner's rule,
most persons in pretrial custody for serious offenses would be
unapproachable by police officers suspecting them of
involvement in other crimes,
even though they have never
expressed any unwillingness to be questioned. Since the ready
ability to obtain uncoerced confessions is not an evil, but an
unmitigated good, society would be the loser. Admissions of guilt
resulting from valid
Miranda waivers
"are more than merely 'desirable;' they are essential to
society's compelling interest in finding, convicting, and punishing
those who violate the law."
Moran, 475 U.S. at
475 U. S. 426
(citation omitted). [
Footnote
2]
Petitioner urges upon us the desirability of providing a "clear
and unequivocal" guideline for the police: no police-initiated
questioning of any person in custody who has requested counsel to
assist him in defense or in interrogation. But the police do not
need our assistance to establish such a
Page 501 U. S. 182
guideline; they are free, if they wish, to adopt it on their
own. Of course, it
is our task to establish guidelines for
judicial review. We like
them to be "clear and
unequivocal,"
see, e.g., Roberson, 486 U.S. at
486 U. S.
681-682, but only when they guide sensibly, and in a
direction we are authorized to go. Petitioner's proposal would, in
our view, do much more harm than good, and is not contained within,
or even in furtherance of, the Sixth Amendment's right to counsel
or the Fifth Amendment's right against compelled
self-incrimination. [
Footnote
3]
* * * *
"This Court is forever adding new stories to the temples of
constitutional law, and the temples have a way of collapsing when
one story too many is added."
Douglas v. Jeannette, 319 U. S. 157,
319 U. S. 181
(1943) (opinion of Jackson, J.). We decline to add yet another
story to
Miranda. The judgment of the Wisconsin Supreme
Court is
Affirmed.
Page 501 U. S. 183
[
Footnote 1]
A footnote in
Jackson, 475 U.S. at
475 U. S.
633-634, n. 7, quoted with approval statements by the
Michigan Supreme Court to the effect that the average person does
not "
understand and appreciate the subtle distinctions between
the Fifth and Sixth Amendment rights to counsel,'" that it
"'makes little sense to afford relief from further interrogation
to a defendant who asks a police officer for an attorney, but
permit further interrogation to a defendant who makes an identical
request to a judge,'"
and that
"'[t]he simple fact that defendant has requested an attorney
indicates that he does not believe that he is sufficiently capable
of dealing with his adversaries single-handedly.'"
Michigan v. Bladel, 421 Mich. 39, 63-64,
365 N.W.2d
56, 67 (1984). Those observations were perhaps true in the
context of deciding whether a request for the assistance of counsel
in defending against a particular charge implied a desire to have
that counsel serve as an "intermediary" for all further
interrogation on that charge. They are assuredly not true in the
quite different context of deciding whether such a request implies
a desire never to undergo custodial interrogation, about anything,
without counsel present.
[
Footnote 2]
The dissent condemns these sentiments as "revealing a preference
for an inquisitorial system of justice."
Post at
501 U. S. 189.
We cannot imagine what this means. What makes a system adversarial,
rather than inquisitorial, is not the presence of counsel, much
less the presence of counsel where the defendant has not requested
it, but rather the presence of a judge who does not (as an
inquisitor does) conduct the factual and legal investigation
himself, but instead decides on the basis of facts and arguments
pro and con adduced by the parties. In the inquisitorial criminal
process of the civil law, the defendant ordinarily has counsel; and
in the adversarial criminal process of the common law, he sometimes
does not. Our system of justice is, and has always been, an
inquisitorial one at the investigatory stage (even the grand jury
is an inquisitorial body), and no other disposition is conceivable.
Even if detectives were to bring impartial magistrates around with
them to all interrogations, there would be no decision for the
impartial magistrate to umpire. If all the dissent means by a
"preference for an inquisitorial system" is a preference not to
require the presence of counsel during an investigatory interview
where the interviewee has not requested it -- that is a strange way
to put it, but we are guilty.
[
Footnote 3]
The dissent predicts that the result in this case will routinely
be circumvented when, "[i]n future preliminary hearings, competent
counsel . . . make sure that they, or their clients, make a
statement on the record" invoking the
Miranda right to
counsel.
Post at
501 U. S. 184.
We have, in fact, never held that a person can invoke his
Miranda rights anticipatorily, in a context other than
"custodial interrogation" -- which a preliminary hearing will not
always, or even usually, involve,
cf. Pennsylvania v.
Muniz, 496 U. S. 582,
496 U. S.
601-602 (1990) (plurality opinion);
Rhode Island v.
Innis, 446 U. S. 291,
446 U. S.
298-303 (1980). If the
Miranda right to counsel
can be invoked at a preliminary hearing, it could be argued, there
is no logical reason why it could not be invoked by a letter prior
to arrest, or indeed even prior to identification as a suspect.
Most rights must be asserted when the government seeks to take the
action they protect against. The fact that we have allowed the
Miranda right to counsel, once asserted, to be effective
with respect to future custodial interrogation does not necessarily
mean that we will allow it to be asserted initially outside the
context of custodial interrogation with similar future effect.
Assuming, however that an assertion at arraignment would be
effective, and would be routinely made, the mere fact that
adherence to the principle of our decisions will not have
substantial consequences is no reason to abandon that principle. It
would remain intolerable that a person in custody who had expressed
no objection to being questioned would be
unapproachable.
JUSTICE KENNEDY, concurring.
I join the opinion of the Court in all respects. Its sensible
recognition that invocation of the Sixth Amendment right to counsel
is specific to the offense in question should apply as well to
requests for counsel under the Fifth Amendment.
See Arizona v.
Roberson, 486 U. S. 675,
486 U. S. 688
(1988) (KENNEDY, J., dissenting). For those in custody,
Edwards
v. Arizona, 451 U. S. 477
(1981), and its progeny go far to protect an individual who desires
the assistance of counsel during interrogation. Limiting the
extraordinary protections of
Edwards to a particular
investigation would not increase the risk of confessions induced by
official efforts to wear down the will of a suspect. Having adopted
an offense-specific rule for invocation of the Sixth Amendment
right to counsel, the Court should devote some attention to
bringing its Fifth and Sixth Amendment jurisprudence into a logical
alignment, and should give uniform, fair, and workable guidelines
for the criminal justice system.
Even if petitioner had invoked his Fifth Amendment right with
respect to the West Allis armed robbery, I do not believe the
authorities should have been prohibited from questioning him in
connection with the Caledonia offenses.
The Court's opinion demeans the importance of the right to
counsel. As a practical matter, the opinion probably will have only
a slight impact on current custodial interrogation procedures. As a
theoretical matter, the Court's innovative development of an
"offense-specific" limitation on the scope of the attorney-client
relationship can only generate confusion in the law and undermine
the protections that undergird our adversarial system of justice.
As a symbolic matter, today's decision is ominous, because it
reflects a preference for an inquisitorial system that regards the
defense lawyer as an impediment, rather than a servant to the cause
of justice.
Page 501 U. S. 184
I
The predicate for the Court's entire analysis is the failure of
the defendant at the preliminary hearing to make a "statement that
can reasonably be construed to be expression of a desire for the
assistance of an attorney
in dealing with custodial
interrogation by the police."
Ante at
501 U. S. 178.
If petitioner in this case had made such a statement indicating
that he was invoking his Fifth Amendment right to counsel as well
as his Sixth Amendment right to counsel, the entire
offense-specific house of cards that the Court has erected today
would collapse, pursuant to our holding in
Arizona v.
Roberson, 486 U. S. 675
(1988), that a defendant who invokes the right to counsel for
interrogation on one offense may not be reapproached regarding any
offense unless counsel is present.
In future preliminary hearings, competent counsel can be
expected to make sure that they, or their clients, make a statement
on the record that will obviate the consequences of today's
holding. That is why I think this decision will have little, if
any, practical effect on police practices.
II
The outcome of this case is determined by the Court's
parsimonious "offense-specific" description of the right to counsel
guaranteed by the Sixth Amendment. The Court's definition is
inconsistent with the high value our prior cases have placed on
this right, with the ordinary understanding of the scope of the
right, and with the accepted practice of the legal profession.
In
Michigan v. Jackson, 475 U.
S. 625 (1986), we held that the defendant's invocation
of his right to the assistance of counsel at arraignment prohibited
the police from initiating a post-arraignment custodial
interrogation without notice to his lawyer. After explaining that
our prior cases required us "to give a broad, rather than a narrow,
interpretation to a defendant's request for counsel," we squarely
rejected
"the
Page 501 U. S. 185
State's suggestion that respondents' requests for the
appointment of counsel should be construed to apply only to
representation in formal legal proceedings."
Id. at
475 U. S. 633.
Instead, we noted that
"it is the State that has the burden of establishing a valid
waiver [of the right to counsel]. Doubts must be resolved in favor
of protecting the constitutional claim."
Ibid. (citation omitted).
Today, however, the Court accepts a narrow, rather than a broad,
interpretation of the same right. It accepts the State's suggestion
that although, under our prior holding in
Michigan v.
Jackson, a request for the assistance of counsel at a formal
proceeding such as an arraignment constitutes an invocation of the
right to counsel at police-initiated custodial interrogation as
well, such a request only covers interrogation about the specific
charge that has already been filed and for which the formal
proceeding was held. Today's approach of construing ambiguous
requests for counsel narrowly and presuming a waiver of rights is
the opposite of that taken in
Jackson.
The Court's holding today, moreover, rejects the common sense
evaluation of the nature of an accused's request for counsel that
we expressly endorsed in
Jackson:
"We also agree with the comments of the Michigan Supreme Court
about the nature of an accused's request for counsel:"
" Although judges and lawyers may understand and appreciate the
subtle distinctions between the Fifth and Sixth Amendment rights to
counsel, the average person does not. When an accused requests an
attorney, either before a police officer or a magistrate, he does
not know which constitutional right he is invoking; he therefore
should not be expected to articulate exactly why or for what
purposes he is seeking counsel. It makes little sense to afford
relief from further interrogation to a defendant who asks a police
officer for an attorney, but permit further interrogation to a
defendant who makes
Page 501 U. S. 186
an identical request to a judge. The simple fact that defendant
has requested an attorney indicates that he does not believe that
he is sufficiently capable of dealing with his adversaries
single-handedly."
"421 Mich. at 63-64, 365 N.W.2d at 67."
Id., 475 U.S. at
475 U. S.
633-634, n. 7. The Court explains away this common sense
understanding by stating that, although
"[t]hose observations were perhaps true in the context of
deciding whether a request for the assistance of counsel in
defending against a particular charge implied a desire to have that
counsel serve as an 'intermediary' for all further interrogation on
that charge[, t]hey are assuredly not true in the quite different
context of deciding whether such a request implies a desire never
to undergo custodial interrogation, about anything, without counsel
present."
Ante at
501 U. S. 180,
n. 1. Even assuming that this explanation by the Court could be
supported if the custodial interrogation related to an offense that
was entirely separate from the charge for which a suspect had
invoked his Sixth Amendment right to counsel, it cannot explain
away the common sense reality that petitioner in this case could
not have known that his invocation of his Sixth Amendment right to
counsel was restricted to the Milwaukee County offense, given that
investigations of the Milwaukee County offense and the Caledonia
offense were concurrent and conducted by overlapping personnel.
[
Footnote 2/1]
Page 501 U. S. 187
Finally, the Court's "offense-specific" characterization of the
constitutional right to counsel ignores the substance of the
attorney-client relationship that the legal profession has
developed over the years. The scope of the relationship between an
individual accused of crime and his attorney is as broad as the
subject matter that might reasonably be encompassed by negotiations
for a plea bargain or the contents of a presentence investigation
report. Any notion that a constitutional right to counsel is, or
should be, narrowly defined by the elements of a pending charge is
both unrealistic and invidious. Particularly given the implication
that McNeil would be given favorable treatment if he told "his side
of the story" as to either or both crimes to the Milwaukee County
officers, I find the Court's restricted construal of McNeil's
relationship with his appointed attorney at the arraignment on the
armed robbery charges to be unsupported.
In any case, the offense-specific limitation on the Sixth
Amendment right to counsel can only generate confusion in the law.
The parties and the Court have assumed in this case, for the
purposes of analyzing the legal issues, that the custodial
interrogation of McNeil involved an offense (murder) that was
completely unrelated to the pending charge of armed robbery. The
Court therefore does not flesh out the precise boundaries of its
newly created "offense-specific" limitation on a venerable
constitutional right. I trust its boundaries will not be patterned
after the Court's double jeopardy jurisprudence,
cf.
Blockburger v. United States, 284 U.
S. 299 (1932), and I can only wonder how much leeway it
will accord the police to file charges selectively in order to
preserve opportunities for custodial interrogation, particularly if
the Court is so unquestioningly willing to treat the offenses in
this case as separate even though the investigations were
Page 501 U. S. 188
concurrent and conducted by overlapping personnel. Whatever the
future may portend, the Court's new rule can only dim the
"bright-line" quality of prior cases such as
Edwards v.
Arizona, 451 U. S. 477
(1981),
Solem v. Stumes, 465 U. S. 638
(1984), and
Michigan v. Jackson, 475 U.
S. 625 (1986).
III
In the final analysis, the Court's decision is explained by its
fear that making counsel available to persons held in custody would
"seriously impede effective law enforcement."
Ante at
501 U. S. 180.
The magnitude of the Court's alarm is illuminated by its use of
italics:
"Thus, if we were to adopt petitioner's rule, most persons in
pretrial custody for serious offenses would be
unapproachable by police officers suspecting them of
involvement in other crimes,
even though they have never
expressed any unwillingness to be questioned."
Ibid. Of course, the Court is quite wrong, and its
fears are grossly exaggerated. The fears are exaggerated because,
as I have explained, today's holding will probably affect very few
cases in the future. The fears are misguided because a contrary
rule would not make all pretrial detainees "unapproachable"; it
would merely serve to ensure that a suspect's statements during
custodial interrogation are truly voluntary.
A contrary rule would also comport with respect to tradition.
Undergirding our entire line of cases requiring the police to
follow fair procedures when they interrogate presumptively innocent
citizens suspected of criminal wrongdoing is the longstanding
recognition that an adversarial system of justice can function
effectively only when the adversaries communicate with one another
through counsel and when laypersons are protected from overreaching
by more experienced and skilled professionals. Whenever the Court
ignores the importance of fair procedure in this context, and
describes the societal interest in obtaining "uncoerced
confessions"
Page 501 U. S. 189
from pretrial detainees as an "unmitigated good," the Court is
revealing a preference for an inquisitorial system of justice. As I
suggested in
Moran v. Burbine, 475 U.
S. 412 (1986):
"This case turns on a proper appraisal of the role of the lawyer
in our society. If a lawyer is seen as a nettlesome obstacle to the
pursuit of wrongdoers -- as in an inquisitorial society -- then the
Court's decision today makes a good deal of sense. If a lawyer is
seen as an aid to the understanding and protection of
constitutional rights -- as in an accusatorial society -- then
today's decision makes no sense at all."
Id. at
475 U. S. 468
(STEVENS, J., dissenting).
The Court's refusal to acknowledge any "danger of 'subtle
compulsion'" [
Footnote 2/2] in a
case of this kind evidences an inability to recognize the
difference between an inquisitorial and an adversarial system of
justice. Accordingly, I respectfully dissent.
[
Footnote 2/1]
After McNeil was first apprehended in Omaha pursuant to the
Milwaukee County arrest warrant, Deputy Sheriff Smukowski of
Milwaukee County and a colleague from the same department traveled
to Omaha for purposes of transporting McNeil back to Wisconsin.
Smukowski testified at trial that, prior to going to Omaha, he had
been aware that McNeil was a suspect in the Caledonia murder as
well as in the Milwaukee County armed robbery. Tr. 5 (Nov. 9,
1987). He further testified that, on May 21, 1987, he and his
colleague talked to McNeil during the transport back to Wisconsin
"about the murder case and the armed robbery,"
id. at 7,
and that they were operating under the understanding that they
would take "a statement as to either case" if McNeil would provide
one.
Id. at 9. Smukowski testified that they urged
petitioner to "tell his side of the story" in order that his
cooperation might help him later,
id. at 8, and that,
prior to leaving Omaha with petitioner, Smukowski and his colleague
used petitioner's help in trying to locate Crowley, another suspect
in the Caledonia murder, in Omaha.
Id. at 13.
[
Footnote 2/2]
In his opinion dissenting for himself and two other members of
the Wisconsin Supreme Court, Chief Justice Heffernan wrote:
"It is apparent that there is danger of 'subtle compulsion' when
a defendant requests the assistance of an attorney at an initial
appearance and is nevertheless subjected to further interrogation
while custody continues. Whether a request for an attorney is made
to a police officer or to a judge, whether in the jail or during an
initial appearance, the dangers of the inherent pressure of
custodial interrogation when not having an attorney present are the
same. Just as the
Edwards [v. Arizona, 451 U. S.
477 (1981),] protection is not dependant upon the
subject matter of the interrogation, neither is this protection
dependent upon whether the request for assistance of counsel is
made to a police officer while in custody or to a magistrate at an
initial appearance before the defendant is interrogated."
155 Wis.2d 24, 50,
454 N.W.2d
742, 752-753 (1990).
See also United States ex rel.
Espinoza v. Fairman, 813 F.2d 117 (CA7 1987).