U.S. Supreme Court Minnick v. Mississippi, 498
U.S. 146 (1990) Minnick v.
Mississippi No. 89-6332 Argued Oct. 3, 1990 Decided Dec. 3, 1990 498
U.S. 146 CERTIORARI TO THE SUPREME COURT OF
MISSISSIPPI Syllabus 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 Page 498 U. S. 147 prompt to lose Edwards' protection while one whose
counsel is dilatory would not 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. 498 U. S.
150 -156. 551 So.
2d 77 (Miss.1988), 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, post, p. 498 U. S. 156 .
SOUTER, J., took no part in the consideration or decision of the
case.

															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 , 384 U. S. 474 (1966). We reinforced the protections of Miranda in Edwards v. Arizona, 451 U. S. 477 , 451 U. S.
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. Page 498 U. S. 148 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,' Page 498 U. S. 149 and stated that he would make a more complete statement then
with his lawyer present."

															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 Page 498 U. S. 150 applies " until counsel has been made available to him,'" ibid., quoting Edwards v. Arizona, supra, 451
U.S. at 451 U. S.
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, 384 U.S. at 384 U. S. 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 451 U. S. 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 451 U. S. 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 451 U. S.
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. 344 , 494 U. S. 350 (1990). Page 498 U. S. 151 See also Smith v. Illinois, 469 U. S.
91 , 469 U. S. 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 , 486 U. S. 682 (1988). Cf. Moran v. Burbine, 475 U.
S. 412 , 475 U. S.
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 , 442 U. S. 718 (1979). This pre- Edwards explanation applies as well to Edwards and its progeny. Arizona v. Roberson,
supra, 486 U.S. at 486 U. S.
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 451 U. S.
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 Page 498 U. S. 152 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 384 U. S. 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 451 U. S. 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 451 U. S.
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 384 U. S. 466 . See Fare v. Michael C., supra, 442 U.S. at 442 U. S. 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 Page 498 U. S. 153 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 , 462 U. S.
1043 (1983) (emphasis added). See also Arizona v.
Roberson, supra, 486 U.S. at 486 U. S. 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 , 470 U. S. 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 , 487 U. S. 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 Page 498 U. S. 154 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 384 U. S. 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, Page 498 U. S. 155 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 Page 498 U. S. 156 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 police-initiated 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.

															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
police-initiated 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 , 486 U. S. 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. Page 498 U. S. 157 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 498 U. S. 153 .
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 Page 498 U. S. 158 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 Page 498 U. S. 159 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 498 U. S. 155 ,
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 384 U. S. 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 384 U. S. 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 304 U. S. 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 Page 498 U. S. 160 procedural rights. See, e.g., Faretta v. California, 422 U. S. 806 , 422 U. S. 835 (1975) (right to the assistance of counsel at trial); Brookhart
v. Janis, 384 U. S. 1 , 384 U. S. 4 (1966)
(right to confront adverse witnesses); Adams v. United States
ex rel. McCann, 317 U. S. 269 , 317 U. S.
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 , 417 U. S. 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 , 442 U. S.
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 498 U. S. 151 ;
it " prevent[s] police from badgering a Page 498 U. S.
161 defendant,'" ibid. (quoting Michigan v.
Harvey, 494 U. S. 344 , 494 U. S. 350 (1990)); it "conserves judicial resources which would otherwise be
expended in making difficult determinations of voluntariness," ante at 498 U. S. 151 ;
and it provides " `"clear and unequivocal" guidelines to the law
enforcement profession,'" ibid. (quoting Arizona v.
Roberson, 486 U.S. at 486 U. S. 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 , 475 U. S. 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 498 U. S. 152 ,
quoting 451 U.S. at 451 U. S. 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 Page 498 U. S. 162 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 , 338 U. S. 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, Page 498 U. S. 163 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 police-solicited 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 Page 498 U. S. 164 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 Page 498 U. S. 165 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 498 U. S. 155 :
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 498 U. S. 154 ,
does not apply to the resolution of the matter I have proposed. Page 498 U. S. 166 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 498 U. S. 154 ,
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 Page 498 U. S. 167 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 , 431 U. S. 187 (1977), because it advances the goals of both "justice and rehabilitation." Michigan v. Tucker, 417 U.S. at 417 U. S. 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 § 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.


U.S. Supreme Court McNeil v. Wisconsin, 501
U.S. 171 (1991) McNeil v. Wisconsin No. 90-5319 Argued Feb. 25, 1991 Decided June 13, 1991 501
U.S. 171 CERTIORARI TO THE SUPREME COURT OF
WISCONSIN Syllabus Charged with an armed robbery in West Allis, Wisconsin,
petitioner McNeil was represented by a public defender at a bail
hearing. While in jail on that charge, he was questioned by police
about a murder and related crimes in Caledonia, Wisconsin. He was
advised of his Miranda rights, signed forms waiving them,
and made statements incriminating himself in the Caledonia
offenses. He was then formally charged with the latter crimes, his
pretrial motion to suppress his statements was denied, and he was
convicted. His conviction was affirmed on appeal, the State Supreme
Court holding that an accused's request for counsel at an initial
appearance on a charged offense does not constitute an invocation
of his Fifth Amendment right to counsel that precludes police
interrogation on unrelated, uncharged offenses. Held: An accused's invocation of his Sixth Amendment
right to counsel during a judicial proceeding does not constitute
an invocation of the right to counsel derived by Miranda v.
Arizona, 384 U. S. 436 ,
from the Fifth Amendment's guarantee against compelled
self-incrimination. Pp. 501 U. S.
175 -182.

															(a) The identity between the two rights that McNeil asserts is
false as a matter of fact. The Sixth Amendment right, which does
not attach until the initiation of adversary judicial proceedings,
is offense-specific, Maine v. Moulton, 474 U.
S. 159 , 474 U. S.
179 -180 and n. 16, as is its effect, under Michigan
v. Jackson, 475 U. S. 625 , of
invalidating subsequent waivers during police-initiated
questioning. Thus, McNeil's invocation of that right with respect
to the West Allis robbery poses no bar to the admission of his
statements regarding the Caledonia crimes, with which he had not
been charged at the time he made the statements. Moreover, although
the Miranda right to counsel is non-offense-specific, Arizona v. Roberson, 486 U. S. 675 ,
and, once asserted, prevents any further police-initiated
interrogation outside the presence of counsel, Edwards v.
Arizona, 451 U. S. 477 , 451 U. S.
484 -485, its assertion cannot be inferred from the
invocation of the Sixth Amendment right in light of the differing
purposes and effects of the two rights. The Sixth Amendment right
is intended to protect the unaided layman at critical
confrontations with the government after the initiation of the
adversary process with respect to a particular crime, United
States v. Gouveia, 467 U. S. 180 , 467 U. S. 189 .
The Miranda-Edwards guarantee is intended to protect the
suspect's Page 501 U. S. 172 "desire to deal with the police only through counsel," Edwards, supra, 451 U.S. at 451 U. S. 484 .
Requesting the assistance of an attorney at a bail hearing does not
satisfy the minimum requirement of some statement that can
reasonably be construed as an expression of a desire for counsel in
dealing with custodial interrogation by the police. Pp. 501 U. S.
175 -1780.

															(b) Nor will this Court declare as a matter of sound policy
(assuming the existence of such expansive power) that assertion of
the Sixth Amendment right implies invocation of the Miranda right. McNeil's proposed rule offers only
insignificant advantages, and would seriously impede effective law
enforcement by precluding uncounseled but uncoerced admissions of
guilt pursuant to valid Miranda waivers. Pp. 501 U. S.
180 -182.

															155 Wis.2d 24, 454 N.W.2d
742 (1990), affirmed.

															SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, O'CONNOR, KENNEDY, and SOUTER, JJ.,
joined. KENNEDY, J., filed a concurring opinion, post, p. 501 U. S. 183 .
STEVENS, J., filed a dissenting opinion, in which MARSHALL and
BLACKMUN, JJ., joined, post, p. 501 U. S.
183 . Page 501 U. S. 173 JUSTICE SCALIA delivered the opinion of the Court.

															This case presents the question whether an accused's invocation
of his Sixth Amendment right to counsel during a judicial
proceeding constitutes an invocation of his Miranda right
to counsel. I Petitioner Paul McNeil was arrested in Omaha, Nebraska, in May,
1987, pursuant to a warrant charging him with an armed robbery in
West Allis, Wisconsin, a suburb of Milwaukee. Shortly after his
arrest, two Milwaukee County deputy sheriffs arrived in Omaha to
retrieve him. After advising him of his Miranda rights,
the deputies sought to question him. He refused to answer any
questions, but did not request an attorney. The deputies promptly
ended the interview.

															Once back in Wisconsin, petitioner was brought before a
Milwaukee County court commissioner on the armed robbery charge.
The Commissioner set bail and scheduled a preliminary examination.
An attorney from the Wisconsin Public Defender's office represented
petitioner at this initial appearance.

															Later that evening, Detective Joseph Butts of the Milwaukee
County Sheriff's Department visited petitioner in jail. Butts had
been assisting the Racine County, Wisconsin, police in their
investigation of a murder, attempted murder, and armed burglary in
the town of Caledonia; petitioner was a suspect. Butts advised
petitioner of his Miranda rights, and petitioner signed a
form waiving them. In this Page 501 U. S. 174 first interview, petitioner did not deny knowledge of the
Caledonia crimes, but said that he had not been involved.

															Butts returned two days later with detectives from Caledonia. He
again began the encounter by advising petitioner of his Miranda rights, and providing a waiver form. Petitioner
placed his initials next to each of the warnings and signed the
form. This time, petitioner admitted that he had been involved in
the Caledonia crimes, which he described in detail. He also
implicated two other men, Willie Pope and Lloyd Crowley. The
statement was typed up by a detective and given to petitioner to
review. Petitioner placed his initials next to every reference to
himself and signed every page.

															Butts and the Caledonia Police returned two days later, having
in the meantime found and questioned Pope, who convinced them that
he had not been involved in the Caledonia crimes. They again began
the interview by administering the Miranda warnings, and
obtaining petitioner's signature and initials on the waiver form.
Petitioner acknowledged that he had lied about Pope's involvement
to minimize his own role in the Caledonia crimes, and provided
another statement recounting the events, which was transcribed,
signed, and initialed as before.

															The following day, petitioner was formally charged with the
Caledonia crimes and transferred to that jurisdiction. His pretrial
motion to suppress the three incriminating statements was denied.
He was convicted of second-degree murder, attempted first-degree
murder, and armed robbery, and sentenced to 60 years in prison.

															On appeal, petitioner argued that the trial court's refusal to
suppress the statements was reversible error. He contended that his
courtroom appearance with an attorney for the West Allis crime
constituted an invocation of the Miranda right to counsel,
and that any subsequent waiver of that right during
police-initiated questioning regarding any offense was
invalid. Observing that the State's Supreme Page 501 U. S. 175 Court had never addressed this issue, the Court of Appeals
certified to that court the following question:

															"Does an accused's request for counsel at an initial appearance
on a charged offense constitute an invocation of his fifth
amendment right to counsel that precludes police interrogation on
unrelated, uncharged offenses?"

															App. 16.

															The Wisconsin Supreme Court answered "no." 155 Wis.2d 24, 454 N.W.2d
742 (1990). We granted certiorari, 498 U.S. 937 (1990). II The Sixth Amendment provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence." In Michigan v.
Jackson, 475 U. S. 625 (1986), we held that, once this right to counsel has attached and
has been invoked, any subsequent waiver during a police-initiated
custodial interview is ineffective. It is undisputed, and we accept
for purposes of the present case, that at the time petitioner
provided the incriminating statements at issue, his Sixth Amendment
right had attached and had been invoked with respect to the West Allis armed robbery, for which he had been formally
charged.

															The Sixth Amendment right, however, is offense-specific. It
cannot be invoked once for all future prosecutions, for it does not
attach until a prosecution is commenced, that is,

															"'at or after the initiation of adversary judicial criminal
proceedings -- whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.'" United States v. Gouveia, 467 U.
S. 180 , 467 U. S. 188 (1984) (quoting Kirby v. Illinois, 406 U.
S. 682 , 406 U. S. 689 (1972) (plurality opinion)). And just as the right is
offense-specific, so also its Michigan v. Jackson effect
of invalidating subsequent waivers in police-initiated interviews
is offense-specific.

															"The police have an interest . . . in investigating new or
additional crimes [after an individual is formally charged Page 501 U. S. 176 with one crime.] . . . [T]o exclude evidence pertaining to
charges as to which the Sixth Amendment right to counsel had not
attached at the time the evidence was obtained, simply because
other charges were pending at that time, would unnecessarily
frustrate the public's interest in the investigation of criminal
activities. . . ." Maine v. Moulton, 474 U. S. 159 , 474 U. S.
179 -180 (1985).

															"Incriminating statements pertaining to other crimes, as to
which the Sixth Amendment right has not yet attached, are, of
course, admissible at a trial of those offenses." Id. at 474 U. S. 180 ,
n. 16. See also Moran v. Burbine, 475 U.
S. 412 , 475 U. S. 431 (1986). Because petitioner provided the statements at issue here
before his Sixth Amendment right to counsel with respect to the Caledonia offenses had been (or even could have been)
invoked, that right poses no bar to the admission of the statements
in this case.

															Petitioner relies, however, upon a different "right to counsel,"
found not in the text of the Sixth Amendment, but in this Court's
jurisprudence relating to the Fifth Amendment guarantee that "[n]o
person . . . shall be compelled in any criminal case to be a
witness against himself." In Miranda v. Arizona, 384 U. S. 436 (1966), we established a number of prophylactic rights designed to
counteract the "inherently compelling pressures" of custodial
interrogation, including the right to have counsel present. Miranda did not hold, however, that those rights could not
be waived. On the contrary, the opinion recognized that statements
elicited during custodial interrogation would be admissible if the
prosecution could establish that the suspect "knowingly and
intelligently waived his privilege against self-incrimination and
his right to retained or appointed counsel." Id. at 384 U. S.
475 .

															In Edwards v. Arizona, 451 U.
S. 477 (1981), we established a second layer of
prophylaxis for the Miranda right to counsel: once a
suspect asserts the right, not only must the Page 501 U. S. 177 current interrogation cease, but he may not be approached for
further interrogation "until counsel has been made available to
him," 451 U.S. at 451 U. S.
484 -485 -- which means, we have most recently held, that
counsel must be present, Minnick v. Mississippi, 498 U. S. 146 (1990). If the police do subsequently initiate an encounter in the
absence of counsel (assuming there has been no break in custody),
the suspect's statements are presumed involuntary and therefore
inadmissible as substantive evidence at trial, even where the
suspect executes a waiver and his statements would be considered
voluntary under traditional standards. This is "designed to prevent
police from badgering a defendant into waiving his previously
asserted Miranda rights," Michigan v. Harvey, 494 U. S. 344 , 494 U. S. 350 (1990). The Edwards rule, moreover, is not offense-specific: once a suspect invokes the Miranda right
to counsel for interrogation regarding one offense, he may not be
reapproached regarding any offense unless counsel is
present. Arizona v. Roberson, 486 U.
S. 675 (1988).

															Having described the nature and effects of both the Sixth
Amendment right to counsel and the Miranda-Edwards "Fifth
Amendment" right to counsel, we come at last to the issue here:
Petitioner seeks to prevail by combining the two of them. He
contends that, although he expressly waived his Miranda right to counsel on every occasion he was interrogated, those
waivers were the invalid product of impermissible approaches,
because his prior invocation of the offense-specific Sixth
Amendment right with regard to the West Allis burglary was also an
invocation of the non-offense-specific Miranda-Edwards right. We think that is false as a matter of fact and inadvisable
(if even permissible) as a contrary-to-fact presumption of
policy.

															As to the former: The purpose of the Sixth Amendment counsel
guarantee -- and hence the purpose of invoking it -- is to
"protec[t] the unaided layman at critical confrontations" with his
"expert adversary," the government, after "the adverse Page 501 U. S. 178 positions of government and defendant have solidified" with
respect to a particular alleged crime. Gouveia, 467 U.S.
at 467 U. S. 189 .
The purpose of the Miranda-Edwards guarantee, on the other
hand -- and hence the purpose of invoking it -- is to protect a
quite different interest: the suspect's "desire to deal with the
police only through counsel," Edwards, 451 U.S. at 451 U. S. 484 .
This is in one respect narrower than the interest protected by the
Sixth Amendment guarantee (because it relates only to custodial
interrogation), and in another respect broader (because it relates
to interrogation regarding any suspected crime and attaches whether
or not the "adversarial relationship" produced by a pending
prosecution has yet arisen). To invoke the Sixth Amendment interest
is, as a matter of fact, not to invoke the Miranda-Edwards interest. One might be quite willing to
speak to the police without counsel present concerning many
matters, but not the matter under prosecution. It can be said,
perhaps, that it is likely that one who has asked for
counsel's assistance in defending against a prosecution would want
counsel present for all custodial interrogation, even interrogation
unrelated to the charge. That is not necessarily true, since
suspects often believe that they can avoid the laying of charges by
demonstrating an assurance of innocence through frank and
unassisted answers to questions. But even if it were true, the likelihood that a suspect would wish counsel to be present
is not the test for applicability of Edwards. The rule of
that case applies only when the suspect "ha[s] expressed "
his wish for the particular sort of lawyerly assistance that is the
subject of Miranda. Edwards, supra, 451 U.S. at 451 U. S. 484 (emphasis added). It requires, at a minimum, some statement that
can reasonably be construed to be expression of a desire for the
assistance of an attorney in dealing with custodial
interrogation by the police. Requesting the assistance of an
attorney at a bail hearing does not bear that construction.

															"[T]o find that [the defendant] invoked his Fifth Amendment
right to counsel on the present charges merely by requesting Page 501 U. S. 179 the appointment of counsel at his arraignment on the unrelated
charge is to disregard the ordinary meaning of that request." State v. Stewart, 113 Wash. 2d
462 , 471, 780 P.2d
844 , 849 (1989), cert. denied, 494 U.S. 1020
(1990).

															Our holding in Michigan v. Jackson, 475 U.
S. 625 (1986), does not, as petitioner asserts,
contradict the foregoing distinction; to the contrary, it rests upon it. That case, it will be recalled, held that
after the Sixth Amendment right to counsel attaches and is invoked,
any statements obtained from the accused during subsequent
police-initiated custodial questioning regarding the charge at
issue (even if the accused purports to waive his rights) are
inadmissible. The State in Jackson opposed that outcome on
the ground that assertion of the Sixth Amendment right to counsel
did not realistically constitute the expression (as Edwards required) of a wish to have counsel present during
custodial interrogation. See 475 U.S. at 475 U. S.
632 -633. Our response to that contention was not that it did constitute such an expression, but that it did not
have to, since the relevant question was not whether the Miranda "Fifth Amendment" right had been asserted, but
whether the Sixth Amendment right to counsel had been waived. We
said that, since our

															"settled approach to questions of waiver requires us to give a
broad, rather than a narrow, interpretation to a defendant's
request for counsel, . . . we presume that the defendant
requests the lawyer's services at every critical stage of the
prosecution."

															475 U.S. at 475 U. S. 633 (emphasis added). The holding of Jackson implicitly
rejects any equivalence in fact between invocation of the Sixth
Amendment right to counsel and the expression necessary to trigger Edwards. If such invocation constituted a real (as opposed
to merely a legally presumed) request for the assistance of counsel
in custodial interrogation, it would have been quite unnecessary
for Jackson to go on to establish, as it did, a new Sixth
Amendment rule of no police-initiated Page 501 U. S. 180 interrogation; we could simply have cited and relied upon Edwards. [ Footnote
1 ]

															There remains to be considered the possibility that, even though
the assertion of the Sixth Amendment right to counsel does not, in fact, imply an assertion of the Miranda "Fifth
Amendment" right, we should declare it to be such as a matter of
sound policy. Assuming we have such an expansive power under the
Constitution, it would not wisely be exercised. Petitioner's
proposed rule has only insignificant advantages. If a suspect does
not wish to communicate with the police except through an attorney,
he can simply tell them that when they give him the Miranda warnings. There is not the remotest chance that he
will feel "badgered" by their asking to talk to him without counsel
present, since the subject will not be the charge on which he has
already requested counsel's assistance (for in that event, Jackson would preclude initiation of the interview), and
he will not have rejected uncounseled interrogation on any subject before (for, in that event, Edwards would preclude
initiation of the interview). The proposed rule would, however,
seriously impede effective law enforcement. The Sixth Amendment
right to Page 501 U. S. 181 counsel attaches at the first formal proceeding against an
accused, and in most States, at least with respect to serious
offenses, free counsel is made available at that time and
ordinarily requested. Thus, if we were to adopt petitioner's rule,
most persons in pretrial custody for serious offenses would be unapproachable by police officers suspecting them of
involvement in other crimes, even though they have never
expressed any unwillingness to be questioned. Since the ready
ability to obtain uncoerced confessions is not an evil, but an
unmitigated good, society would be the loser. Admissions of guilt
resulting from valid Miranda waivers

															"are more than merely 'desirable;' they are essential to
society's compelling interest in finding, convicting, and punishing
those who violate the law." Moran, 475 U.S. at 475 U. S. 426 (citation omitted). [ Footnote
2 ]

															Petitioner urges upon us the desirability of providing a "clear
and unequivocal" guideline for the police: no police-initiated
questioning of any person in custody who has requested counsel to
assist him in defense or in interrogation. But the police do not
need our assistance to establish such a Page 501 U. S. 182 guideline; they are free, if they wish, to adopt it on their
own. Of course, it is our task to establish guidelines for
judicial review. We like them to be "clear and
unequivocal," see, e.g., Roberson, 486 U.S. at 486 U. S.
681 -682, but only when they guide sensibly, and in a
direction we are authorized to go. Petitioner's proposal would, in
our view, do much more harm than good, and is not contained within,
or even in furtherance of, the Sixth Amendment's right to counsel
or the Fifth Amendment's right against compelled
self-incrimination. [ Footnote
3 ] * * * * "This Court is forever adding new stories to the temples of
constitutional law, and the temples have a way of collapsing when
one story too many is added." Douglas v. Jeannette, 319 U. S. 157 , 319 U. S. 181 (1943) (opinion of Jackson, J.). We decline to add yet another
story to Miranda. The judgment of the Wisconsin Supreme
Court is Affirmed. Page 501 U. S. 183 [ Footnote 1 ]

															A footnote in Jackson, 475 U.S. at 475 U. S.
633 -634, n. 7, quoted with approval statements by the
Michigan Supreme Court to the effect that the average person does
not " understand and appreciate the subtle distinctions between
the Fifth and Sixth Amendment rights to counsel,'" that it "'makes little sense to afford relief from further interrogation
to a defendant who asks a police officer for an attorney, but
permit further interrogation to a defendant who makes an identical
request to a judge,'"

															and that

															"'[t]he simple fact that defendant has requested an attorney
indicates that he does not believe that he is sufficiently capable
of dealing with his adversaries single-handedly.'" Michigan v. Bladel, 421 Mich. 39, 63-64, 365 N.W.2d
56 , 67 (1984). Those observations were perhaps true in the
context of deciding whether a request for the assistance of counsel
in defending against a particular charge implied a desire to have
that counsel serve as an "intermediary" for all further
interrogation on that charge. They are assuredly not true in the
quite different context of deciding whether such a request implies
a desire never to undergo custodial interrogation, about anything,
without counsel present.

															[ Footnote 2 ]

															The dissent condemns these sentiments as "revealing a preference
for an inquisitorial system of justice." Post at 501 U. S. 189 .
We cannot imagine what this means. What makes a system adversarial,
rather than inquisitorial, is not the presence of counsel, much
less the presence of counsel where the defendant has not requested
it, but rather the presence of a judge who does not (as an
inquisitor does) conduct the factual and legal investigation
himself, but instead decides on the basis of facts and arguments
pro and con adduced by the parties. In the inquisitorial criminal
process of the civil law, the defendant ordinarily has counsel; and
in the adversarial criminal process of the common law, he sometimes
does not. Our system of justice is, and has always been, an
inquisitorial one at the investigatory stage (even the grand jury
is an inquisitorial body), and no other disposition is conceivable.
Even if detectives were to bring impartial magistrates around with
them to all interrogations, there would be no decision for the
impartial magistrate to umpire. If all the dissent means by a
"preference for an inquisitorial system" is a preference not to
require the presence of counsel during an investigatory interview
where the interviewee has not requested it -- that is a strange way
to put it, but we are guilty.

															[ Footnote 3 ]

															The dissent predicts that the result in this case will routinely
be circumvented when, "[i]n future preliminary hearings, competent
counsel . . . make sure that they, or their clients, make a
statement on the record" invoking the Miranda right to
counsel. Post at 501 U. S. 184 .
We have, in fact, never held that a person can invoke his Miranda rights anticipatorily, in a context other than
"custodial interrogation" -- which a preliminary hearing will not
always, or even usually, involve, cf. Pennsylvania v.
Muniz, 496 U. S. 582 , 496 U. S.
601 -602 (1990) (plurality opinion); Rhode Island v.
Innis, 446 U. S. 291 , 446 U. S.
298 -303 (1980). If the Miranda right to counsel
can be invoked at a preliminary hearing, it could be argued, there
is no logical reason why it could not be invoked by a letter prior
to arrest, or indeed even prior to identification as a suspect.
Most rights must be asserted when the government seeks to take the
action they protect against. The fact that we have allowed the Miranda right to counsel, once asserted, to be effective
with respect to future custodial interrogation does not necessarily
mean that we will allow it to be asserted initially outside the
context of custodial interrogation with similar future effect.
Assuming, however that an assertion at arraignment would be
effective, and would be routinely made, the mere fact that
adherence to the principle of our decisions will not have
substantial consequences is no reason to abandon that principle. It
would remain intolerable that a person in custody who had expressed no objection to being questioned would be
unapproachable.

															JUSTICE KENNEDY, concurring.

															I join the opinion of the Court in all respects. Its sensible
recognition that invocation of the Sixth Amendment right to counsel
is specific to the offense in question should apply as well to
requests for counsel under the Fifth Amendment. See Arizona v.
Roberson, 486 U. S. 675 , 486 U. S. 688 (1988) (KENNEDY, J., dissenting). For those in custody, Edwards
v. Arizona, 451 U. S. 477 (1981), and its progeny go far to protect an individual who desires
the assistance of counsel during interrogation. Limiting the
extraordinary protections of Edwards to a particular
investigation would not increase the risk of confessions induced by
official efforts to wear down the will of a suspect. Having adopted
an offense-specific rule for invocation of the Sixth Amendment
right to counsel, the Court should devote some attention to
bringing its Fifth and Sixth Amendment jurisprudence into a logical
alignment, and should give uniform, fair, and workable guidelines
for the criminal justice system.

															Even if petitioner had invoked his Fifth Amendment right with
respect to the West Allis armed robbery, I do not believe the
authorities should have been prohibited from questioning him in
connection with the Caledonia offenses.

															The Court's opinion demeans the importance of the right to
counsel. As a practical matter, the opinion probably will have only
a slight impact on current custodial interrogation procedures. As a
theoretical matter, the Court's innovative development of an
"offense-specific" limitation on the scope of the attorney-client
relationship can only generate confusion in the law and undermine
the protections that undergird our adversarial system of justice.
As a symbolic matter, today's decision is ominous, because it
reflects a preference for an inquisitorial system that regards the
defense lawyer as an impediment, rather than a servant to the cause
of justice. Page 501 U. S. 184 I The predicate for the Court's entire analysis is the failure of
the defendant at the preliminary hearing to make a "statement that
can reasonably be construed to be expression of a desire for the
assistance of an attorney in dealing with custodial
interrogation by the police. " Ante at 501 U. S. 178 .
If petitioner in this case had made such a statement indicating
that he was invoking his Fifth Amendment right to counsel as well
as his Sixth Amendment right to counsel, the entire
offense-specific house of cards that the Court has erected today
would collapse, pursuant to our holding in Arizona v.
Roberson, 486 U. S. 675 (1988), that a defendant who invokes the right to counsel for
interrogation on one offense may not be reapproached regarding any
offense unless counsel is present.

															In future preliminary hearings, competent counsel can be
expected to make sure that they, or their clients, make a statement
on the record that will obviate the consequences of today's
holding. That is why I think this decision will have little, if
any, practical effect on police practices. II The outcome of this case is determined by the Court's
parsimonious "offense-specific" description of the right to counsel
guaranteed by the Sixth Amendment. The Court's definition is
inconsistent with the high value our prior cases have placed on
this right, with the ordinary understanding of the scope of the
right, and with the accepted practice of the legal profession.

															In Michigan v. Jackson, 475 U.
S. 625 (1986), we held that the defendant's invocation
of his right to the assistance of counsel at arraignment prohibited
the police from initiating a post-arraignment custodial
interrogation without notice to his lawyer. After explaining that
our prior cases required us "to give a broad, rather than a narrow,
interpretation to a defendant's request for counsel," we squarely
rejected

															"the Page 501 U. S. 185 State's suggestion that respondents' requests for the
appointment of counsel should be construed to apply only to
representation in formal legal proceedings." Id. at 475 U. S. 633 .
Instead, we noted that

															"it is the State that has the burden of establishing a valid
waiver [of the right to counsel]. Doubts must be resolved in favor
of protecting the constitutional claim." Ibid. (citation omitted).

															Today, however, the Court accepts a narrow, rather than a broad,
interpretation of the same right. It accepts the State's suggestion
that although, under our prior holding in Michigan v.
Jackson, a request for the assistance of counsel at a formal
proceeding such as an arraignment constitutes an invocation of the
right to counsel at police-initiated custodial interrogation as
well, such a request only covers interrogation about the specific
charge that has already been filed and for which the formal
proceeding was held. Today's approach of construing ambiguous
requests for counsel narrowly and presuming a waiver of rights is
the opposite of that taken in Jackson. The Court's holding today, moreover, rejects the common sense
evaluation of the nature of an accused's request for counsel that
we expressly endorsed in Jackson: "We also agree with the comments of the Michigan Supreme Court
about the nature of an accused's request for counsel:"

															" Although judges and lawyers may understand and appreciate the
subtle distinctions between the Fifth and Sixth Amendment rights to
counsel, the average person does not. When an accused requests an
attorney, either before a police officer or a magistrate, he does
not know which constitutional right he is invoking; he therefore
should not be expected to articulate exactly why or for what
purposes he is seeking counsel. It makes little sense to afford
relief from further interrogation to a defendant who asks a police
officer for an attorney, but permit further interrogation to a
defendant who makes Page 501 U. S. 186 an identical request to a judge. The simple fact that defendant
has requested an attorney indicates that he does not believe that
he is sufficiently capable of dealing with his adversaries
single-handedly."

															"421 Mich. at 63-64, 365 N.W.2d at 67." Id., 475 U.S. at 475 U. S.
633 -634, n. 7. The Court explains away this common sense
understanding by stating that, although

															"[t]hose observations were perhaps true in the context of
deciding whether a request for the assistance of counsel in
defending against a particular charge implied a desire to have that
counsel serve as an 'intermediary' for all further interrogation on
that charge[, t]hey are assuredly not true in the quite different
context of deciding whether such a request implies a desire never
to undergo custodial interrogation, about anything, without counsel
present." Ante at 501 U. S. 180 ,
n. 1. Even assuming that this explanation by the Court could be
supported if the custodial interrogation related to an offense that
was entirely separate from the charge for which a suspect had
invoked his Sixth Amendment right to counsel, it cannot explain
away the common sense reality that petitioner in this case could
not have known that his invocation of his Sixth Amendment right to
counsel was restricted to the Milwaukee County offense, given that
investigations of the Milwaukee County offense and the Caledonia
offense were concurrent and conducted by overlapping personnel.
[ Footnote 2/1 ] Page 501 U. S. 187 Finally, the Court's "offense-specific" characterization of the
constitutional right to counsel ignores the substance of the
attorney-client relationship that the legal profession has
developed over the years. The scope of the relationship between an
individual accused of crime and his attorney is as broad as the
subject matter that might reasonably be encompassed by negotiations
for a plea bargain or the contents of a presentence investigation
report. Any notion that a constitutional right to counsel is, or
should be, narrowly defined by the elements of a pending charge is
both unrealistic and invidious. Particularly given the implication
that McNeil would be given favorable treatment if he told "his side
of the story" as to either or both crimes to the Milwaukee County
officers, I find the Court's restricted construal of McNeil's
relationship with his appointed attorney at the arraignment on the
armed robbery charges to be unsupported.

															In any case, the offense-specific limitation on the Sixth
Amendment right to counsel can only generate confusion in the law.
The parties and the Court have assumed in this case, for the
purposes of analyzing the legal issues, that the custodial
interrogation of McNeil involved an offense (murder) that was
completely unrelated to the pending charge of armed robbery. The
Court therefore does not flesh out the precise boundaries of its
newly created "offense-specific" limitation on a venerable
constitutional right. I trust its boundaries will not be patterned
after the Court's double jeopardy jurisprudence, cf.
Blockburger v. United States, 284 U.
S. 299 (1932), and I can only wonder how much leeway it
will accord the police to file charges selectively in order to
preserve opportunities for custodial interrogation, particularly if
the Court is so unquestioningly willing to treat the offenses in
this case as separate even though the investigations were Page 501 U. S. 188 concurrent and conducted by overlapping personnel. Whatever the
future may portend, the Court's new rule can only dim the
"bright-line" quality of prior cases such as Edwards v.
Arizona, 451 U. S. 477 (1981), Solem v. Stumes, 465 U. S. 638 (1984), and Michigan v. Jackson, 475 U.
S. 625 (1986). III In the final analysis, the Court's decision is explained by its
fear that making counsel available to persons held in custody would
"seriously impede effective law enforcement." Ante at 501 U. S. 180 .
The magnitude of the Court's alarm is illuminated by its use of
italics:

															"Thus, if we were to adopt petitioner's rule, most persons in
pretrial custody for serious offenses would be unapproachable by police officers suspecting them of
involvement in other crimes, even though they have never
expressed any unwillingness to be questioned. " Ibid. Of course, the Court is quite wrong, and its
fears are grossly exaggerated. The fears are exaggerated because,
as I have explained, today's holding will probably affect very few
cases in the future. The fears are misguided because a contrary
rule would not make all pretrial detainees "unapproachable"; it
would merely serve to ensure that a suspect's statements during
custodial interrogation are truly voluntary.

															A contrary rule would also comport with respect to tradition.
Undergirding our entire line of cases requiring the police to
follow fair procedures when they interrogate presumptively innocent
citizens suspected of criminal wrongdoing is the longstanding
recognition that an adversarial system of justice can function
effectively only when the adversaries communicate with one another
through counsel and when laypersons are protected from overreaching
by more experienced and skilled professionals. Whenever the Court
ignores the importance of fair procedure in this context, and
describes the societal interest in obtaining "uncoerced
confessions" Page 501 U. S. 189 from pretrial detainees as an "unmitigated good," the Court is
revealing a preference for an inquisitorial system of justice. As I
suggested in Moran v. Burbine, 475 U.
S. 412 (1986):

															"This case turns on a proper appraisal of the role of the lawyer
in our society. If a lawyer is seen as a nettlesome obstacle to the
pursuit of wrongdoers -- as in an inquisitorial society -- then the
Court's decision today makes a good deal of sense. If a lawyer is
seen as an aid to the understanding and protection of
constitutional rights -- as in an accusatorial society -- then
today's decision makes no sense at all." Id. at 475 U. S. 468 (STEVENS, J., dissenting).

															The Court's refusal to acknowledge any "danger of 'subtle
compulsion'" [ Footnote 2/2 ] in a
case of this kind evidences an inability to recognize the
difference between an inquisitorial and an adversarial system of
justice. Accordingly, I respectfully dissent.

															[ Footnote 2/1 ]

															After McNeil was first apprehended in Omaha pursuant to the
Milwaukee County arrest warrant, Deputy Sheriff Smukowski of
Milwaukee County and a colleague from the same department traveled
to Omaha for purposes of transporting McNeil back to Wisconsin.
Smukowski testified at trial that, prior to going to Omaha, he had
been aware that McNeil was a suspect in the Caledonia murder as
well as in the Milwaukee County armed robbery. Tr. 5 (Nov. 9,
1987). He further testified that, on May 21, 1987, he and his
colleague talked to McNeil during the transport back to Wisconsin
"about the murder case and the armed robbery," id. at 7,
and that they were operating under the understanding that they
would take "a statement as to either case" if McNeil would provide
one. Id. at 9. Smukowski testified that they urged
petitioner to "tell his side of the story" in order that his
cooperation might help him later, id. at 8, and that,
prior to leaving Omaha with petitioner, Smukowski and his colleague
used petitioner's help in trying to locate Crowley, another suspect
in the Caledonia murder, in Omaha. Id. at 13.

															[ Footnote 2/2 ]

															In his opinion dissenting for himself and two other members of
the Wisconsin Supreme Court, Chief Justice Heffernan wrote:

															"It is apparent that there is danger of 'subtle compulsion' when
a defendant requests the assistance of an attorney at an initial
appearance and is nevertheless subjected to further interrogation
while custody continues. Whether a request for an attorney is made
to a police officer or to a judge, whether in the jail or during an
initial appearance, the dangers of the inherent pressure of
custodial interrogation when not having an attorney present are the
same. Just as the Edwards [v. Arizona, 451 U. S.
477 (1981),] protection is not dependant upon the
subject matter of the interrogation, neither is this protection
dependent upon whether the request for assistance of counsel is
made to a police officer while in custody or to a magistrate at an
initial appearance before the defendant is interrogated."

															155 Wis.2d 24, 50, 454 N.W.2d
742 , 752-753 (1990). See also United States ex rel.
Espinoza v. Fairman, 813 F.2d 117 (CA7 1987).