Subject: MINNICK v. MISSISSIPPI, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus


MINNICK v. MISSISSIPPI


certiorari to the supreme court of mississippi

No. 89-6332.  Argued October 3, 1990 -- Decided December 3, 1990

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.

    Held: 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 Edwards' 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' clear and unequivocal character.  Since, under respondent's
formulation of the rule, Edwards' 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 Edwards.  In addition, allowing a suspect
whose counsel is prompt to lose Edwards' protection while one whose counsel
is dilatory would not would 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.
3-10.

551 So. 2d 77, 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.  Souter, J., took no
part in the consideration or decision of the case.

------------------------------------------------------------------------------




Subject: 89-6332 -- OPINION, MINNICK v. MISSISSIPPI

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-6332



ROBERT S. MINNICK, PETITIONER v. MISSISSIPPI

on writ of certiorari to the supreme court of mississippi

[December 3, 1990]


    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. S. 436, 474 (1966).  We reinforced the
protections of Miranda in Edwards v. Arizona, 451 U. S. 477, 484-485
(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.
    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 Miranda
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 report, "Minnick stated `Come back Monday when I have a lawyer,' and
stated that he would make a more complete statement then with his lawyer
pres ent."  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."  Id., 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. 2d 77, 83 (1988).
Relying on language in Edwards indicating that the bar on interrogating the
accused after a request for counsel applies " `until counsel has been made
available to him,' " ibid., quoting Edwards v. Arizona, supra, at 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, at 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 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."   Id., at 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."  Id., at 484-485.
    Edwards is "designed to prevent police from badgering a defendant into
waiving his previously asserted Miranda rights."  Michigan v. Harvey, 494
U. S. ---, --- (1990).  See also Smith v. Illinois, 469 U. S. 91, 98
(1984).  The rule ensures that any statement made in subsequent
interrogation is not the result of coercive pressures.  Edwards conserves
judicial resources which would otherwise be expended in making difficult
determinations of voluntariness, and implements the protections of Miranda
in practical and straightforward terms.
    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, 682 (1988).  Cf. Moran v.
Burbine, 475 U. S. 412, 425-426 (1986).  Even before Edwards, we noted that
Miranda's "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 imposes 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 Amendment analysis."
Fare v. Michael C., 442 U. S. 707, 718 (1979).  This pre-Edwards
explanation applies as well to Edwards and its progeny.  Arizona v.
Roberson, supra, at 681-682.
    The Mississippi Supreme Court relied on our statement in Edwards 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 484-485.  We do not interpret this language to
mean, as the Mississippi court thought, that the protection of Edwards
terminates once counsel has consulted with the suspect.  In 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.
    In Edwards, we focused on Miranda's instruction that when the accused
invokes his right to counsel, "the interrogation must cease until an
attorney is present," 384 U. S., at 474 (emphasis added), agreeing with
Edwards' contention that he had not waived his right "to have counsel
present during custodial interrogation."  451 U. S., at 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 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 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."  Ibid. (emphasis added).
    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 compulsion."  384 U. S., at 466.  See Fare v. Michael C., supra,
at 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 Edwards to be "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 States Constitution."  Oregon v.
Bradshaw, 462 U. S. 1039, 1043 (1983) (emphasis added).  See also Arizona
v. Roberson, supra, at 680 ("The rule of the Edwards case came as a
corollary to Miranda's 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, 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 Edwards and its progeny."  Patterson v. Illinois,
487 U. S. 285, 291 (1988).  In our view, a fair reading of Edwards and
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 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
interrogation resumes.
    The exception to Edwards here proposed is inconsistent with Edwards'
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 that "[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 470 (citation
omitted).
    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 Edwards 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, 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 constitutional principle.
    In addition, adopting the rule proposed would leave far from certain
the sort of consultation required to displace Edwards.  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 privilege.
    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 Edwards, 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 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.
    Edwards 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 policeinitiated interrogation
was impermissible.  Petitioner's statement to Denham was not admissible at
trial.
    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 this
case.
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Subject: 89-6332 -- DISSENT, MINNICK v. MISSISSIPPI

 


    SUPREME COURT OF THE UNITED STATES


No. 89-6332



ROBERT S. MINNICK, PETITIONER v. MISSISSIPPI

on writ of certiorari to the supreme court of mississippi

[December 3, 1990]


    Justice Scalia, with whom The Chief Justice joins, dissenting.

    The Court today establishes an irrebuttable presumption that a criminal
suspect, after invoking his Miranda right to counsel, can never validly
waive that right during any policeinitiated 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. S. 477 (1981), but "the rule of
Edwards is our rule, not a constitutional command; and it is our obligation
to justify its expansion."  Arizona v. Roberson, 486 U. S. 675, 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 respectfully dissent.
I
    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."  Ante, at 7.  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 a 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 Police
Department."  App. 46-47.

    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 rights.  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 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]," ante, at 9, 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.
II
    In Miranda v. Arizona, 384 U. S. 436 (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 467, of such interrogation will not violate the Fifth
Amendment.  But Miranda 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."  Id., at 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. S.
458 (1938).
    The Zerbst waiver standard, and the means of applying it, are familiar:
Waiver is "an intentional relinquishment or abandonment of a known right or
privilege," id., at 464; and whether such a relinquishment or abandonment
has occurred depends "in each case, upon the particular facts and
circumstances surrounding that case, including the background, experience,
and conduct of the accused," ibid.  We have applied the Zerbst approach in
many contexts where a State bears the burden of showing a waiver of
constitutional criminal procedural rights.  See, e. g., Faretta v.
California, 422 U. S. 806, 835 (1975) (right to the assistance of counsel
at trial); Brookhart v. Janis, 384 U. S. 1, 4 (1966) (right to confront
adverse witnesses); Adams v. United States ex rel. McCann, 317 U. S. 269,
275-280 (1942) (right to trial by jury).
    Notwithstanding our acknowledgment that Miranda rights are "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, 444 (1974), we have adhered
to the principle that nothing less than the Zerbst standard for the waiver
of constitutional rights applies to the waiver of Miranda rights.  Until
Edwards, however, we refrained from imposing on the States a higher
standard for the waiver of Miranda rights.  For example, in Michigan v.
Mosley, 423 U. S. 96 (1975), we rejected a proposed irrebuttable
presumption that a criminal suspect, after invoking the Miranda right to
remain silent, could not validly waive the right during any subsequent
questioning by the police.  In North Carolina v. Butler, 441 U. S. 369
(1979) we rejected a proposed rule that waivers of Miranda rights must be
deemed involuntary absent an explicit assertion of waiver by the suspect.
And in Fare v. Michael C., 442 U. S. 707, 723-727 (1979) we declined to
hold that waivers of Miranda rights by juveniles are per se involuntary.
    Edwards, 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 se 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, at 4; it " `prevent[s]
police from badgering a defendant,' " ibid. (quoting Michigan v. Harvey,
494 U. S. ---, --- (1990)); it "conserves judicial resources which would
otherwise be expended in making difficult determinations of voluntariness,"
ante, at 4; and it provides " ` "clear and unequivocal" guidelines to the
law enforcement profession,' " ibid. (quoting Arizona v. Roberson, 486 U.
S., at 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, 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."  Ibid.
(citation omitted).
III
    In this case, of course, we have not been called upon to reconsider
Edwards, but simply to determine whether its irrebuttable presumption
should continue after a suspect has actually consulted with his attorney.
Whatever justifications might support Edwards are even less convincing in
this context.
    Most of the Court's discussion of Edwards -- which stresses repeatedly,
in various formulations, the case's emphasis upon "the `right to have
counsel present during custodial interrogation,' " ante, at 5, quoting 451
U. S., at 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 twice and 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.
    Edwards did not assert the principle that no waiver of the Miranda
right "to have counsel present" is possible.  It simply adopted the
presumption that no waiver is voluntary 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
Edwards 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 Miranda 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, 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 exclusionary rule 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, 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 needed protection.
    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 policesolicited 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
(1988).
    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 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 voluntary waiver.
    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 and
Bradshaw 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 Mosley was wrongly decided or Edwards was"); or
the distinction between what is needed to prove waiver of the Miranda 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 9: 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 by Edwards 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' protection could pass in
and out of existence multiple times," ante, at 8, does not apply to the
resolution of the matter I have proposed.  Edwards 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 Edwards' prophylactic rule, ante, at 8, which was needed
to protect Miranda's prophylactic right to have counsel present, which was
needed to protect the right against compelled self-incrimination found (at
last!) in the Constitution.
    It seems obvious to me that, even in Edwards itself but 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 justice.
    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 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. S. 181, 187 (1977), because it advances
the goals of both "justice and rehabilitation."  Michigan v. Tucker, 417 U.
S., at 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 MDRV 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.
Cf. Caplan, Questioning Miranda, 38 Vand. L. Rev. 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 right.

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