DAVIS v. UNITED STATES
No. 92-1949
Supreme Court of the United States
Argued March 29, 1994—Decided June 24, 1994
512 U.S. 452
David S. Jonas argued the cause for petitioner. With him on the briefs were Philip L. Sundel, Daniel S. Jonas, and David Rudovsky.
Richard H. Seamon argued the cause for the United States. With him on the briefs were Solicitor General Days, Assistant Attorney General Harris, Deputy Solicitor General Bryson, Joel M. Gershowitz, Theodore G. Hess, and Brett D. Barkey.*
*Fred E. Inbau, Wayne W. Schmidt, James P. Manak, Richard M. Weintraub, William C. O‘Malley, and Bernard J. Farber filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging affirmance.
Briefs of amici curiae were filed for the National Association of Criminal Defense Lawyers by Janet E. Ainsworth; and for the Washington Legal Foundation et al. by Paul G. Cassell, Daniel J. Popeo, and Paul D. Kamenar.
In Edwards v. Arizona, 451 U. S. 477 (1981), we held that law enforcement officers must immediately cease questioning a suspect who has clearly asserted his right to have counsel present during custodial interrogation. In this case we decide how law enforcement officers should respond when a suspect makes a reference to counsel that is insufficiently clear to invoke the Edwards prohibition on further questioning.
I
Pool brought trouble—not to River City, but to the Charleston Naval Base. Petitioner, a member of the United States Navy, spent the evening of October 2, 1988, shooting pool at a club on the base. Another sailor, Keith Shackleton, lost a game and a $30 wager to petitioner, but Shackleton refused to pay. After the club closed, Shackleton was beaten to death with a pool cue on a loading dock behind the commissary. The body was found early the next morning.
The investigation by the Naval Investigative Service (NIS) gradually focused on petitioner. Investigative agents determined that petitioner was at the club that evening, and that he was absent without authorization from his duty station the next morning. The agents also learned that only privately owned pool cues could be removed from the club premises, and that petitioner owned two cues—one of which had a bloodstain on it. The agents were told by various people that petitioner either had admitted committing the crime or had recounted details that clearly indicated his involvement in the killing.
On November 4, 1988, petitioner was interviewed at the NIS office. As required by military law, the agents advised petitioner that he was a suspect in the killing, that he was not required to make a statement, that any statement could be used against him at a trial by court-martial, and that he was entitled to speak with an attorney and have an attorney present during questioning. See
About an hour and a half into the interview, petitioner said, “Maybe I should talk to a lawyer.” App. 135. According to the uncontradicted testimony of one of the interviewing agents, the interview then proceeded as follows:
“[We m]ade it very clear that we‘re not here to violate his rights, that if he wants a lawyer, then we will stop any kind of questioning with him, that we weren‘t going to pursue the matter unless we have it clarified is he asking for a lawyer or is he just making a comment about a lawyer, and he said, [‘]No, I‘m not asking for a lawyer,’ and then he continued on, and said, ‘No, I don‘t want a lawyer.‘” Id., at 136.
After a short break, the agents reminded petitioner of his rights to remain silent and to counsel. The interview then continued for another hour, until petitioner said, “I think I want a lawyer before I say anything else.” Id., at 137. At that point, questioning ceased.
At his general court-martial, petitioner moved to suppress statements made during the November 4 interview. The Military Judge denied the motion, holding that “the mention of a lawyer by [petitioner] during the course of the interrogation [was] not in the form of a request for counsel and . . . the agents properly determined that [petitioner] was not indicating a desire for or invoking his right to counsel.” Id., at 164. Petitioner was convicted on one specification of unpremeditated murder, in violation of
The United States Court of Military Appeals granted discretionary review and affirmed. 36 M. J. 337 (1993). The court recognized that the state and federal courts have developed three different approaches to a suspect‘s ambiguous or equivocal request for counsel:
“Some jurisdictions have held that any mention of counsel, however ambiguous, is sufficient to require that all questioning cease. Others have attempted to define a threshold standard of clarity for invoking the right to counsel and have held that comments falling short of the threshold do not invoke the right to counsel. Some jurisdictions . . . have held that all interrogation about the offense must immediately cease whenever a suspect mentions counsel, but they allow interrogators to ask narrow questions designed to clarify the earlier statement and the [suspect‘s] desires respecting counsel.” Id., at 341 (internal quotation marks omitted).
Applying the third approach, the court held that petitioner‘s comment was ambiguous, and that the NIS agents properly clarified petitioner‘s wishes with respect to counsel before continuing questioning him about the offense. Id., at 341-342.
Although we have twice previously noted the varying approaches the lower courts have adopted with respect to ambiguous or equivocal references to counsel during custodial interrogation, see Connecticut v. Barrett, 479 U. S. 523, 529-530, n. 3 (1987); Smith v. Illinois, 469 U. S. 91, 96, n. 3 (1984) (per curiam), we have not addressed the issue on the merits. We granted certiorari, 510 U. S. 942 (1993), to do so.
II
The Sixth Amendment right to counsel attaches only at the initiation of adversary criminal proceedings, see United States v. Gouveia, 467 U. S. 180, 188 (1984), and before proceedings are initiated a suspect in a criminal investigation has no constitutional right to the assistance of counsel. Nevertheless, we held in Miranda v. Arizona, 384 U. S. 436, 469-473 (1966), that a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that the police must explain this right to him before questioning begins. The right to counsel established in Miranda was one of a “series of recommended ‘procedural safeguards’ . . . [that] were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected.” Michigan v. Tucker, 417 U. S. 433, 443-444 (1974); see
The right to counsel recognized in Miranda is sufficiently important to suspects in criminal investigations, we have held, that it “requir[es] the special protection of the knowing and intelligent waiver standard.” Edwards v. Arizona, 451 U. S., at 483. See Oregon v. Bradshaw, 462 U. S. 1039, 1046-1047 (1983) (plurality opinion); id., at 1051 (Powell, J., concurring in judgment). If the suspect effectively waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to question him. North Carolina v. Butler, 441 U. S. 369, 372-376 (1979). But if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation. Edwards v. Arizona, supra, at 484-485. This “second layer of prophylaxis for the Miranda right to counsel,” McNeil v. Wisconsin, 501 U. S. 171, 176 (1991), is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights,” Michigan v. Harvey, 494 U. S. 344, 350 (1990). To that end, we have held that a suspect who has invoked the right to counsel cannot be questioned regarding any offense unless an attorney is actually present. Minnick v. Mississippi, 498 U. S. 146 (1990); Arizona v. Roberson, 486 U. S. 675 (1988). “It remains clear, however, that this prohibition on further questioning—like other aspects of Miranda—is not itself required by the Fifth Amendment‘s prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose.” Connecticut v. Barrett, supra, at 528.
The applicability of the “‘rigid’ prophylactic rule” of Edwards requires courts to “determine whether the accused actually invoked his right to counsel.” Smith v. Illinois, supra, at 95 (emphasis added), quoting Fare v. Michael C., 442 U. S. 707, 719 (1979). To avoid difficulties of proof and to
Rather, the suspect must unambiguously request counsel. As we have observed, “a statement either is such an assertion of the right to counsel or it is not.” Smith v. Illinois, 469 U. S., at 97-98 (brackets and internal quotation marks omitted). Although a suspect need not “speak with the discrimination of an Oxford don,” post, at 476 (SOUTER, J., concurring in judgment), he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect. See Moran v. Burbine, 475 U. S. 412, 433, n. 4 (1986) (“[T]he interrogation must cease until an attorney is present only [i]f the individual states that he wants an attorney“) (citations and internal quotation marks omitted).
We decline petitioner‘s invitation to extend Edwards and require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney. See Arizona v. Roberson, supra, at 688
We recognize that requiring a clear assertion of the right to counsel might disadvantage some suspects who—because of fear, intimidation, lack of linguistic skills, or a variety of other reasons—will not clearly articulate their right to counsel although they actually want to have a lawyer present. But the primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves. “[F]ull comprehension of the rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process.” Moran v. Burbine, supra, at 427. A suspect who knowingly and voluntarily waives his right to counsel after having that right explained
In considering how a suspect must invoke the right to counsel, we must consider the other side of the Miranda equation: the need for effective law enforcement. Although the courts ensure compliance with the Miranda requirements through the exclusionary rule, it is police officers who must actually decide whether or not they can question a suspect. The Edwards rule—questioning must cease if the suspect asks for a lawyer—provides a bright line that can be applied by officers in the real world of investigation and interrogation without unduly hampering the gathering of information. But if we were to require questioning to cease if a suspect makes a statement that might be a request for an attorney, this clarity and ease of application would be lost. Police officers would be forced to make difficult judgment calls about whether the suspect in fact wants a lawyer even though he has not said so, with the threat of suppression if they guess wrong. We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.
Of course, when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. That was the procedure followed by the NIS agents in this case. Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect‘s statement regarding counsel. But we decline to adopt a rule requiring officers to ask clarifying questions. If the suspect‘s state-
To recapitulate: We held in Miranda that a suspect is entitled to the assistance of counsel during custodial interrogation even though the Constitution does not provide for such assistance. We held in Edwards that if the suspect invokes the right to counsel at any time, the police must immediately cease questioning him until an attorney is present. But we are unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the suspect actually requests an attorney, questioning may continue.
The courts below found that petitioner‘s remark to the NIS agents—“Maybe I should talk to a lawyer“—was not a request for counsel, and we see no reason to disturb that conclusion. The NIS agents therefore were not required to stop questioning petitioner, though it was entirely proper for them to clarify whether petitioner in fact wanted a lawyer. Because there is no ground for suppression of petitioner‘s statements, the judgment of the Court of Military Appeals is
Affirmed.
JUSTICE SCALIA, concurring.
Section 3501 of Title 18 of the United States Code is “the statute governing the admissibility of confessions in federal prosecutions.” United States v. Alvarez-Sanchez, 511 U. S. 350, 351 (1994). That provision declares that “a confession . . . shall be admissible in evidence if it is voluntarily given,” and that the issue of voluntariness shall be determined on the basis of “all the circumstances surrounding the giving of the confession, including whether or not [the] defendant was advised or knew that he was not required to make any statement . . . [;] . . . whether or not [the] defendant had been advised prior to questioning of his right to the assistance of counsel; and . . . whether or not [the] defendant was without the assistance of counsel when questioned . . . .”
This is not the first case in which the United States has declined to invoke
I agree with the Court that it is proper, given the Government‘s failure to raise the point, to render judgment without taking account of
For most of this century, voluntariness vel non was the touchstone of admissibility of confessions. See Miranda v. Arizona, 384 U. S. 436, 506-507 (1966) (Harlan, J., dissenting).
The Executive has the power (whether or not it has the right) effectively to nullify some provisions of law by the mere failure to prosecute—the exercise of so-called prosecutorial discretion. And it has the power (whether or not it
The United States’ repeated refusal to invoke
In the midst of his questioning by naval investigators, petitioner said “Maybe I should talk to a lawyer.” The investigators promptly stopped questioning Davis about the killing of Keith Shackleton and instead undertook to determine whether he meant to invoke his right to counsel, see Miranda v. Arizona, 384 U. S. 436 (1966). According to testimony accepted by the courts below, Davis answered the investigators’ questions on that point by saying, “I‘m not asking for a lawyer,” and “No, I don‘t want to talk to a lawyer.” Only then did the interrogation resume (stopping for good when petitioner said, “I think I want a lawyer before I say anything else“).
I agree with the majority that the Constitution does not forbid law enforcement officers to pose questions (like those directed at Davis) aimed solely at clarifying whether a suspect‘s ambiguous reference to counsel was meant to assert his Fifth Amendment right. Accordingly I concur in the judgment affirming Davis‘s conviction, resting partly on evidence of statements given after agents ascertained that he did not wish to deal with them through counsel. I cannot, however, join in my colleagues’ further conclusion that if the investigators here had been so inclined, they were at liberty to disregard Davis‘s reference to a lawyer entirely, in accordance with a general rule that interrogators have no legal obligation to discover what a custodial subject meant by an ambiguous statement that could reasonably be understood to express a desire to consult a lawyer.
Our own precedent, the reasonable judgments of the majority of the many courts already to have addressed the issue before us,¹ and the advocacy of a considerable body of law
¹ See, e. g., United States v. Porter, 776 F. 2d 370 (CA1 1985) (en banc); United States v. Gotay, 844 F. 2d 971, 975 (CA2 1988); Thompson v. Wainwright, 601 F. 2d 768, 771-772 (CA5 1979) (en banc); United States v. Fouche, 833 F. 2d 1284, 1287 (CA9 1987); United States v. March, 999 F. 2d 456, 461-462 (CA10 1993); United States v. Mendoza-Cecelia, 963 F. 2d 1467, 1472 (CA11 1992); see also Howard v. Pung, 862 F. 2d 1348 (CA8 1988). The weight of state-court authority is similarly lopsided, see, e. g., People v. Benjamin, 732 P. 2d 1167, 1171 (Colo. 1987); Crawford v. State, 580 A. 2d 571, 576-577 (Del. 1990); Martinez v. State, 564 So. 2d 1071, 1074 (Fla. 1990); State v. Robinson, 427 N. W. 2d 217, 223 (Minn. 1988).
I
A
While the question we address today is an open one,³ its answer requires coherence with nearly three decades of case
² See Brief for Americans for Effective Law Enforcement, Inc., International Association of Chiefs of Police, Inc., National District Attorneys Association, and National Sheriffs’ Association as Amici Curiae 5 (The approach advocated here “is a common sense resolution of the problem. It fully accommodates the rights of the subject, while at the same time preserv[ing] the interests of law enforcement and of the public welfare“); see also Brief for United States 20 (approach taken by the Court does not “fulfill the fundamental purpose of Miranda“) (internal quotation marks omitted).
³ The majority acknowledges, ante, at 456, that we have declined (despite the persistence of divergent approaches in the lower courts) to decide the operative rule for such ambiguous statements, see, e. g., Connecticut v. Barrett, 479 U. S. 523, 529, n. 3 (1987); Mueller v. Virginia, 507 U. S. 1043 (1993) (White, J., dissenting from denial of certiorari), but then suggests that the conclusion it reaches was foreshadowed by McNeil v. Wisconsin, 501 U. S. 171 (1991), where we noted that the “likelihood that a suspect would wish counsel to be present” was not dispositive, id., at 178. But we were not addressing the degree of clarity required to activate the counsel right (let alone endorsing the standard embraced today), as is evident from the very page of McNeil cited, where we were careful to say only that the Miranda counsel right “requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” 501 U. S., at 178. McNeil instead made the different and familiar point that courts may not presume that a silent defendant “would” want a lawyer whenever circumstances suggest that representation “would” be in his interest.
Nor may this case be disposed of by italicizing the words of Edwards v. Arizona, 451 U. S. 477, 485 (1981), to the effect that when a suspect “clearly assert[s]” his right, questioning must cease. See ante, at 459. Even putting aside that the particular statement in that case was not entirely clear (the highest court to address the question described it as “equivocal,” see State v. Edwards, 122 Ariz. 206, 211, 594 P. 2d 72, 77 (1979); see also 451 U. S., at 480, n. 6), Edwards no more decided the legal consequences of a less than “clear” statement than Miranda, by saying that explicit waivers are sufficient, 384 U. S., at 475, settled whether they are necessary. See North Carolina v. Butler, 441 U. S. 369, 373 (1979) (holding they are not). Were it otherwise, there would have been no reason after Edwards to identify the issue as unresolved, but see Barrett, supra; Smith v. Illinois, 469 U. S. 91, 95-96 (1984) (per curiam).
Nor, finally, is it plausible to read Miranda itself as a presage of the Court‘s rule, on account of language suggesting that questioning need not stop when a request for counsel is “‘indecisive.‘” ante, at 460 (quoting Miranda, 384 U. S., at 485). The statement quoted, however, is not taken from the Court‘s holding, but rather from a lengthy direct quotation of a letter to the Court from the Solicitor General, purporting to summarize then-current FBI practice (which the Court observed was “consistent,” id., at 484, with the rule announced). In any event, the letter further explains that, under the FBI policy, the “indecisive” suspect may be “question[ed] on whether he did or did not waive counsel,” id., at 485, an approach closer to the one advocated here than to the one the Court adopts.
B
Tested against the same two principles, the approach the Court adopts does not fare so well. First, as the majority expressly acknowledges, see ante, at 460, criminal suspects who may (in Miranda‘s words) be “thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures,” 384 U. S., at 457, would seem an odd group to single out for the Court‘s demand of heightened linguistic care. A substantial percentage of them lack anything like a confident command of the English language, see, e. g., United States v. De la Jara, 973 F. 2d 746, 750 (CA9 1992); many are “woefully ignorant,” Miranda, supra, at 468; cf. Davis v. North Carolina, 384 U. S. 737, 742 (1966); and many more will be sufficiently intimidated by the interrogation process or overwhelmed by the uncertainty of their predicament that
Nor may the standard governing waivers as expressed in these statements be deflected away by drawing a distinction between initial waivers of Miranda rights and subsequent
⁴ Social science confirms what common sense would suggest, that individuals who feel intimidated or powerless are more likely to speak in equivocal or nonstandard terms when no ambiguity or equivocation is meant. See W. O‘Barr, Linguistic Evidence: Language, Power, and Strategy in the Courtroom 61-71 (1982). Suspects in police interrogation are strong candidates for these effects. Even while resort by the police to the “third degree” has abated since Miranda, the basic forms of psychological pressure applied by police appear to have changed less. Compare, e. g., Miranda, supra, at 449 (“[T]he principal psychological factor contributing to a successful interrogation is privacy“) (quoting F. Inbau & J. Reid, Criminal Interrogation and Confessions 1 (1962)), with F. Inbau, J. Reid, & J. Buckley, Criminal Interrogation and Confessions 24 (3d ed. 1986) (“The principal psychological factor contributing to a successful interrogation is privacy“).
The Court defends as tolerable the certainty that some poorly expressed requests for counsel will be disregarded on the ground that Miranda warnings suffice to alleviate the inherent coercion of the custodial interrogation. Ante, at 460. But, “[a] once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice” to “assure that the . . . right to choose between silence and speech remains unfettered throughout the interrogation process,” 384 U. S., at 469. Nor does the Court‘s defense reflect a sound reading of the case it relies on, Moran v. Burbine, supra:
“Beyond [the] duty to inform, Miranda requires that the police respect the [suspect‘s] decision to exercise the rights outlined in the warnings. ‘If the individual indicates in any manner, at any time prior to or during ques-
tioning, that he wishes to remain silent, [or if he] states that he wants an attorney, the interrogation must cease.‘” 475 U. S., at 420 (quoting Miranda, supra, at 473-474).
While Moran held that a subject‘s knowing and voluntary waiver of the right to counsel is not undermined by the fact that police prevented an unsummoned lawyer from making contact with him, it contains no suggestion that Miranda affords as ready a tolerance for police conduct frustrating the suspect‘s subjectively held (if ambiguously expressed) desire for counsel. See 475 U. S., at 423 (contrasting Escobedo v. Illinois, 378 U. S. 478, 481 (1964), where “police incorrectly told the suspect that his lawyer ‘didn‘t want to see him‘“); see also Miranda, supra, at 468 (purpose of warnings is to “show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it“).
Indeed, it is easy, amidst the discussion of layers of protection, to lose sight of a real risk in the majority‘s approach, going close to the core of what the Court has held that the Fifth Amendment provides. The experience of the timid or verbally inept suspect (whose existence the Court acknowledges) may not always closely follow that of the defendant in Edwards v. Arizona (whose purported waiver of his right to counsel, made after having invoked the right, was held ineffective, lest police be tempted to “badge[r]” others like him, see Michigan v. Harvey, 494 U. S. 344, 350 (1990)). Indeed, it may be more like that of the defendant in Escobedo v. Illinois, supra, whose sense of dilemma was heightened by his interrogators’ denial of his requests to talk to a lawyer. When a suspect understands his (expressed) wishes to have been ignored (and by hypothesis, he has said something that an objective listener could “reasonably,” although not necessarily, take to be a request), in contravention of the “rights” just read to him by his interrogator, he may well
Nor is it enough to say that a “‘statement either is . . . an assertion of the right to counsel or it is not.‘” ante, at 459 (quoting Smith v. Illinois, 469 U. S., at 97-98) (omitting brackets and internal quotation marks). In Smith, we neither denied the possibility that a reference to counsel could be ambiguous, see id., at 98; accord, id., at 101 (REHNQUIST, J., dissenting), nor suggested that particular statements should be considered in isolation, id., at 98.⁶ While it might be fair to say that every statement is meant either to express a desire to deal with police through counsel or not, this fact does not dictate the rule that interrogators who hear a statement consistent with either possibility may presume the latter and forge ahead; on the contrary, clarification is the intuitively sensible course.
The other justifications offered for the “requisite level of clarity” rule, ante, at 459, are that, whatever its costs, it will further society‘s strong interest in “effective law enforcement,” ante, at 461, and maintain the “ease of application,”
⁵ See People v. Harper, 94 Ill. App. 3d 298, 300, 418 N. E. 2d 894, 896 (1981) (defendant who asked interrogator to retrieve an attorney‘s business card from his wallet but was told that it “wouldn‘t be necessary” held not to have “availed himself” of right to counsel); see also Cooper v. Dupnik, 963 F. 2d 1220, 1225 (CA9 1992) (en banc) (describing elaborate police Task Force plan to ignore systematically a suspect‘s requests for counsel, on the theory that such would induce hopelessness and thereby elicit an admission, which would then be used to keep the suspect off the witness stand, see Oregon v. Hass, 420 U. S. 714 (1975) (statements obtained in violation of Miranda rules admissible for impeachment purposes)).
⁶ Indeed, our Smith decision was quoting from the dissent below, which adverts in the same sentence to the possibility of “bona fide doubt the officer may still have as to whether the defendant desires counsel,” in which case “strictly” limited questioning is prescribed. See People v. Smith, 102 Ill. 2d 365, 375, 466 N. E. 2d 236, 241 (1984) (opinion of Simon, J.).
As for practical application, while every approach, including the majority‘s, will involve some “difficult judgment calls,“⁷ the rule argued for here would relieve the officer of
⁷ In the abstract, nothing may seem more clear than a “clear statement” rule, but in police stations and trial courts the question, “how clear is clear?” is not so readily answered. When a suspect says, “uh, yeah, I‘d like to do that” after being told he has a right to a lawyer, has he “clearly asserted” his right? Compare Smith v. Illinois, 469 U. S., at 97 (statement was “‘neither indecisive nor ambiguous‘“) (citation omitted), with id., at 101 (REHNQUIST, J., dissenting) (questioning clarity); see also Oregon v. Bradshaw, 462 U. S. 1039, 1041-1042 (1983) (plurality opinion) (“I do want an attorney before it goes very much further“); Edwards, 451 U. S., at 479 (“‘I want an attorney before making a deal‘“); cf. n. 3, supra. Indeed, in this case, when Davis finally said, “I think I want a lawyer before I say anything else,” the agents ceased questioning; but see People v. Kendricks, 121 Ill. App. 3d 442, 446, 459 N. E. 2d 1137, 1139 (1984) (agents need not stop interrogation when suspect says, “‘I think I might need a lawyer‘“); cf. People v. Santiago, 133 App. Div. 429, 430-431, 519 N. Y. S. 2d 413, 414-415 (1987) (“‘Will you supply [a lawyer] now so that I may ask him should I continue with this interview at this moment?‘” held “not an unequivocal invocation“). See generally Smith, supra, at 101 (REHNQUIST, J., dissenting) (noting that statements are rarely “crystal-clear“; “differences between certainty and hesitancy may well
II
Although I am convinced that the Court has taken the wrong path, I am not persuaded by petitioner‘s contention that even ambiguous statements require an end to all police questioning. I recognize that the approach petitioner urges on us can claim some support from our case law, most notably in the “indicates in any manner” language of Miranda, and I do not deny that the rule I endorse could be abused by “clarifying” questions that shade subtly into illicitly badgering a suspect who wants counsel, but see Thompson v. Wainwright, 601 F. 2d 768, 771-772 (CA5 1979); cf. State v. Walkowiak, 183 Wis. 2d 478, 515 N. W. 2d 863 (1994) (Abrahamson, J., concurring) (suggesting means properly to focus clarification enquiry). But petitioner‘s proposal is not entirely in harmony with all the major themes of Miranda case law, its virtues and demerits being the reverse images of those that mark the Court‘s rule. While it is plainly wrong, for example, to continue interrogation when the suspect wants it to stop (and so indicates), the strong bias in favor of individual choice may also be disserved by stopping questioning when a suspect wants it to continue (but where his statement might be understood otherwise), see Michigan v.
turn on the inflection with which words are spoken, especially where [a] statement is isolated from the statements surrounding it“).
As a practical matter, of course, the primary arbiters of “clarity” will be the interrogators themselves, who tend as well to be courts’ preferred source in determining the precise words a suspect used. And when an inculpatory statement has been obtained as a result of an unrecorded, incommunicado interrogation, these officers rarely lose “swearing matches” against criminal defendants at suppression hearings.
* * *
Our cases are best respected by a rule that when a suspect under custodial interrogation makes an ambiguous statement that might reasonably be understood as expressing a wish that a lawyer be summoned (and questioning cease), interrogators’ questions should be confined to verifying whether the individual meant to ask for a lawyer. While there is reason to expect that trial courts will apply today’s ruling sensibly (without requiring criminal suspects to speak with the discrimination of an Oxford don) and that interrogators will continue to follow what the Court rightly calls “good police practice” (compelled up to now by a substantial body of state and Circuit law), I believe that the case law under Miranda does not allow them to do otherwise.
Notes
We also note that the Government has not sought to rely in this case on