No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Miranda requires that before a suspect in custody is interrogated, he must be given full warnings (or the equivalent) of his rights. Specifically, the suspect must receive express warnings of his right to remain silent; that anything he says may be used as evidence against him; that he has a right to counsel; and that, if he cannot afford counsel, he is entitled to an appointed attorney.1 In a later decision, the Court held that it is unnecessary for the police to give the warnings as a verbatim recital of the words in the Miranda opinion itself, so long as the words used “fully conveyed” to a defendant his rights.2
Once a warned suspect asserts his right to silence and requests counsel, the police must scrupulously respect this assertion. The Miranda Court stated that once a warned suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Further, if the suspect requests the assistance of counsel during interrogation, questioning must cease until he has counsel.3
Subsequently, the Court has often barred the police from continuing (or reinitiating) interrogation with a suspect requesting counsel until counsel is present, except when the suspect himself initiates further communications. In Edwards v. Arizona,4 initial questioning ceased as soon as the suspect requested counsel, and the police returned the suspect to his cell. Questioning resumed the following day only after different police officers had confronted the suspect and again warned him of his rights; the suspect agreed to talk and thereafter incriminated himself. Nonetheless, the Court held, “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. We further hold that an accused . . . , 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.” 5 The Edwards rule bars police-initiated questioning stemming from a separate investigation as well as questioning relating to the crime for which the suspect was arrested.6 It also applies to interrogation by officers of a different law enforcement authority.7
On the other hand, the Edwards rule requiring that a lawyer be provided to a suspect who had requested one in an earlier interrogation does not apply once there has been a meaningful break in custody. The Court in Maryland v. Shatzer8 characterized the Edwards rule as a judicially prescribed precaution against using the coercive pressure of prolonged custody to badger a suspect who has previously requested counsel into talking without one. However, after a suspect has been released to resume his normal routine for a sufficient period to dissipate the coercive effects of custody, a period set at 14 days by the Shatzer Court, the rationale for solicitous treatment ceases. If the police take the suspect into custody again, the options for questioning him are no longer limited to suspect-initiated talks or providing counsel. Rather, the police may issue new Miranda warnings and proceed accordingly.9 The Court has not extended the Edwards rule explicitly to other aspects of the Miranda warnings.10
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Footnotes
- 1
- Miranda v. Arizona, 384 U.S. 436, 444 (1966).
- 2
- California v. Prysock, 453 U.S. 355 (1981). Rephrased, the test is whether the warnings “reasonably conveyed” a suspect’s rights. The Court added that reviewing courts “need not examine Miranda warnings as if construing a will or defining the terms of an easement.” Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (upholding warning that included possibly misleading statement that a lawyer would be appointed “if and when you go to court” ). Even when warnings were not the “clearest possible formulation of Miranda's right-to-counsel advisement,” the Court found them acceptable as “sufficiently comprehensive and comprehensible when given a commonsense reading.” Florida v. Powell, 559 U.S. 50, 63–64 (2010) (upholding warning of a right to talk to a lawyer before answering any questions, coupled with advice that the right could be invoked at any time during police questioning, as adequate to inform a suspect of his right to have a lawyer present during questioning).
- 3
- Miranda v. Arizona, 384 U.S. 436, 472, 473–74 (1966). While a request for a lawyer is a per se invocation of Fifth Amendment rights, a request for another advisor, such as a probation officer or family member, may be taken into account in determining whether a suspect has evidenced an intent to claim his right to remain silent. Fare v. Michael C., 442 U.S. 707 (1979) (juvenile who requested to see his probation officer, rather than counsel, found under the totality-of-the-circumstances to have not invoked a right to remain silent).
- 4
- 451 U.S. 477 (1981).
- 5
- 451 U.S. at 484–85. The decision was unanimous, but three concurrences objected to a special rule limiting waivers with respect to counsel to suspect-initiated further exchanges. Id. at 487, 488 (Chief Justice Warren Burger and Justices Lewis Powell and William Rehnquist). In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Court held, albeit without a majority of Justices in complete agreement as to rationale, that an accused who had initiated further conversations with police had knowingly and intelligently waived his right to have counsel present. So too, an accused who expressed a willingness to talk to police, but who refused to make a written statement without presence of counsel, was held to have waived his rights with respect to his oral statements. Connecticut v. Barrett, 479 U.S. 523 (1987). In Minnick v. Mississippi, 498 U.S. 146 (1990), the Court interpreted Edwards to bar interrogation without counsel present of a suspect who had earlier consulted with an attorney on the accusation at issue. “[W]hen counsel is requested, interrogation must cease, and officials may not reinstate interrogation without counsel present, whether or not the accused has consulted with his attorney.” Id. at 153. The Court held that Edwards should not be applied retroactively to a conviction that had become final, Solem v. Stumes, 465 U.S. 638 (1984), but that Edwards applied to cases pending on appeal at the time it was decided. Shea v. Louisiana, 470 U.S. 51 (1985).
- 6
- Arizona v. Roberson, 486 U.S. 675 (1988). By contrast, the Sixth Amendment right to counsel is offense-specific, and does not bar questioning about a crime unrelated to the crime for which the suspect has been charged. See McNeil v. Wisconsin, 501 U.S. 171 (1991).
- 7
- Minnick v. Mississippi, 498 U.S. 146 (1990).
- 8
- 559 U.S. 98 (2010).
- 9
- Id.
- 10
- For a pre-Edwards case on the right to remain silent, see Michigan v. Mosley, 423 U.S. 96 (1975) (suspect given Miranda warnings at questioning for robbery, requested cessation of interrogation, and police complied; some two hours later, a different policeman interrogated suspect about a murder, gave him a new Miranda warning, and suspect made incriminating admission; since police “scrupulously honored” suspect’s request, admission was valid).