Lead Opinion
delivered the opinion of the Court.
In Edwards v. Arizona,
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 Art. 31, Uniform Code of
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 Art. 118, UCMJ, 10 U. S. C. § 918. He was sentenced to confinement for life, a dishonorable discharge, forfeiture of all pay and allowances, and a reduction to the lowest pay grade. The convening authority approved the findings and sentence. The Navy-
The United States Court of Military Appeals granted discretionary review and affirmed.
“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,
II
The Sixth Amendment right to counsel attaches only at the initiation of adversary criminal proceedings, see United
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.,
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,
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.
Notes
We have never had occasion to consider whether the Fifth Amendment privilege against self-incrimination, or the attendant right to counsel during custodial interrogation, applies of its own force to the military, and we need not do so here. The President, exercising his authority to prescribe procedures for military criminal proceedings, see Art. 36(a), UCMJ, 10 U. S. C. § 836(a), has decreed that statements obtained in violation of the Self-Incrimination Clause are generally not admissible at trials by court-martial. Mil. Rules Evid. 304(a) and (c)(3). Because the Court of Military Appeals has held that our cases construing the Fifth Amendment right to counsel apply to military interrogations and control the admissibility of evidence at trials by court-martial, see, e. g., United States v. McLaren,
We also note that the Government has not sought to rely in this case on 18 U. S. C. §3501, “the statute governing the admissibility of confessions in federal prosecutions,” United States v. Alvarez-Sanchez,
Concurrence Opinion
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,
This is not the first case in which the United States has declined to invoke § 3501 before us — nor even the first case in which that failure has been called to its attention. See Tr. of Oral Arg. in United States v. Green, O. T. 1992, No. 91-1521, pp. 18-21. In fact, with limited exceptions the
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 §3501. But the refusal to consider arguments not raised is a sound prudential practice, rather than a statutory or constitutional mandate, and there are times when prudence dictates the contrary. See United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc.,
For most of this century, voluntariness vel non was the touchstone of admissibility of confessions. See Miranda v. Arizona,
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 §3501, combined with the courts’ traditional (albeit merely prudential) refusal to consider arguments not raised, has caused the federal judiciary to confront a host of “Miranda” issues that might be entirely irrelevant under federal law. See, e. g., in addition to the present case, United States v. Green,
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,
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,
I
A
While the question we address today is an open one,
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,”
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
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,”
“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*472 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
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,
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,
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,”
As for practical application, while every approach, including the majority’s, will involve some “difficult judgment calls,”
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,
* * *
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.
The United States makes the unusually self-denying assertion that the provision “in any event would appear not to be applicable in court-martial cases” since (1) court-martial cases are not “‘criminal prosecutions’” within the meaning of the Sixth Amendment and “therefore would not appear to be ‘criminal prosecution[s]’ for purposes of Section 3501(a),” and (2) courts-martial are governed by Article 31 of the Uniform Code of Military Justice, 10 U. S. C. §831, and Rules 304 and 305 of the Military Rules of Evidence. The first point seems to me questionable: The meaning of terms in statutes does not necessarily parallel their meaning in the Constitution. Moreover, even accepting the premise that §3501 does not apply to courts-martial directly, it does apply indirectly, through Rule 101(b)(1) of the Military Rules of Evidence, which requires courts-martial to apply “the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” As for the second point: The cited provisions of the Uniform Code and the Military Rules may (though I doubt it) be independent reasons why the confession here should be excluded, but they cannot possibly be reasons why §3501 does not prevent Miranda v. Arizona,
See, e. g., United States v. Porter,
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 preserving] 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).
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,
Nor may this case be disposed of by italicizing the words of Edwards v. Arizona,
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,
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”).
See People v. Harper,
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,
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,
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.