U.S. Supreme Court Patterson v. Illinois, 487
U.S. 285 (1988) Patterson v. Illinois No. 86-7059 Argued March 22, 1988 Decided June 24, 1988 487
U.S. 285 CERTIORARI TO THE SUPREME COURT OF
ILLINOIS Syllabus After being informed by police that he had been indicted for
murder, petitioner, who was in police custody, twice indicated his
willingness to discuss the crime during interviews initiated by the
authorities. On both occasions, petitioner was read a form waiving
his rights under Miranda v. Arizona, 384 U.
S. 436 , initialed each of the five specific warnings on
the form, and signed the form. He then gave inculpatory statements
to the authorities. The Illinois trial court denied his motions to
suppress his statements on constitutional grounds, and the
statements were used against him at trial. The State Supreme Court
affirmed his conviction, rejecting his contention that the warnings
he received, while adequate to protect his Fifth Amendment rights
as guaranteed by Miranda, did not adequately inform him of
his Sixth Amendment right to counsel. Held: The postindictment questioning that produced
petitioner's incriminating statements did not violate his Sixth
Amendment right to counsel. Pp. 487 U. S.
290 -300.

															(a) Petitioner cannot avail himself of the argument that,
because his Sixth Amendment right to counsel arose with his
indictment, the police were thereafter barred from initiating
questioning, since he at no time sought to have counsel present.
The essence of Edwards v. Arizona, 451 U.
S. 477 , and its progeny, on which petitioner relies, is
the preservation of the integrity of an accused's choice to
communicate with police only through counsel. Had petitioner
indicated he wanted counsel's assistance, the questioning would
have stopped, and further questioning would have been forbidden
unless he himself initiated the meeting. Michigan v.
Jackson, 475 U. S. 625 .
However, once an accused "knowingly and intelligently" elects to
proceed without counsel, the uncounseled statements he then makes
need not be excluded at trial. Pp. 487 U. S.
290 -291.

															(b) Petitioner's contention that his Sixth Amendment rights were
violated because he did not "knowingly and intelligently" waive his
right to have counsel present during his postindictment questioning
is without merit. The constitutional minimum for determining
whether a waiver was "knowing and intelligent" is that the accused
be made sufficiently aware of his right to have counsel present and
of the possible consequences of a decision to forgo the aid of
counsel. Here, by admonishing petitioner with the Miranda warnings, respondent met this burden, and petitioner's waiver was
valid. First, by telling him that he had the Page 487 U. S. 286 rights to consult an attorney, to have a lawyer present while he
was questioned, and even to have a lawyer appointed if he could not
afford one, the authorities conveyed to him the sum and substance
of his Sixth Amendment rights. Second, by informing him that any
statement he made could be used against him, the authorities made
him aware of the ultimate adverse consequence of his decision to
waive his Sixth Amendment rights, and of what a lawyer could "do
for him" during postindictment questioning: namely, advise him to
refrain from making any such statements. Petitioner's inability
here to articulate with precision what additional information
should have been provided before he would have been competent to
waive his right to counsel supports the conclusion that the
information that was provided satisfies the constitutional minimum.
Pp. 487 U. S.
292 -297.

															(c) This Court has never adopted petitioner's suggestion that
the Sixth Amendment right to counsel is "superior" to or "more
difficult" to waive than its Fifth Amendment counterpart. Rather,
in Sixth Amendment cases, the court has defined the scope of the
right to counsel by a pragmatic assessment of the usefulness of
counsel to the accused at the particular stage of the proceedings
in question, and the dangers to the accused of proceeding without
counsel at that stage. An accused's waiver is "knowing and
intelligent" if he is made aware of these basic facts. Miranda warnings are sufficient for this purpose in the
postindictment questioning context, because, at that stage, the
role of counsel is relatively simple and limited, and the dangers
and disadvantages of self-representation are less substantial and
more obvious to an accused than they are at trial. Pp. 487 U. S.
297 -300. 116 Ill. 2d
290 , 507 N.E.2d
843 , affirmed.

															WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined.
BLACKMUN, J., filed a dissenting opinion, post, p. 487 U. S. 300 .
STEVENS, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined, post, p. 487 U. S.
301 . Page 487 U. S. 287 JUSTICE WHITE delivered the opinion of the Court.

															In this case, we are called on to determine whether the
interrogation of petitioner after his indictment violated his Sixth
Amendment right to counsel. I Before dawn on August 21, 1983, petitioner and other members of
the "Vice Lords" street gang became involved in a fight with
members of a rival gang, the "Black Mobsters." Some time after the
fight, a former member of the Black Mobsters, James Jackson, went
to the home where the Vice Lords had fled. A second fight broke out
there, with petitioner and three other Vice Lords beating Jackson
severely. The Vice Lords then put Jackson into a car, drove to the
end of a nearby street, and left him face down in a puddle of
water. Later that morning, police discovered Jackson, dead, where
he had been left.

															That afternoon, local police officers obtained warrants for the
arrest of the Vice Lords, on charges of battery and mob action, in
connection with the first fight. One of the gang members who was
arrested gave the police a statement concerning the first fight;
the statement also implicated several of the Vice Lords (including
petitioner) in Jackson's murder. A few hours later, petitioner was
apprehended. Petitioner was informed of his rights under Miranda v. Arizona, 384 U. S. 436 (1966), and volunteered to answer questions put to him by the
police. Petitioner gave a statement concerning the initial fight
between the rival gangs, but denied knowing anything Page 487 U. S. 288 about Jackson's death. Petitioner was held in custody the
following day, August 22, as law enforcement authorities completed
their investigation of the Jackson murder.

															On August 23, a Cook County grand jury indicted petitioner and
two other gang members for the murder of James Jackson. Police
Officer Michael Gresham, who had questioned petitioner earlier,
removed him from the lockup where he was being held and told
petitioner that, because he had been indicted, he was being
transferred to the Cook County jail. Petitioner asked Gresham which
of the gang members had been charged with Jackson's murder, and,
upon learning that one particular Vice Lord had been omitted from
the indictments, asked: "[W]hy wasn't he indicted, he did
everything." App. 7. Petitioner also began to explain that there
was a witness who would support his account of the crime.

															At this point, Gresham interrupted petitioner, and handed him a Miranda waiver form. The form contained five specific
warnings, as suggested by this Court's Miranda decision,
to make petitioner aware of his right to counsel and of the
consequences of any statement he might make to police. [ Footnote 1 ] Gresham read the warnings
aloud, as petitioner read along with him. Petitioner initialed each
of the five warnings, and signed the waiver form. Petitioner then
gave a lengthy statement to police officers concerning the Jackson
murder; petitioner's statement described in detail the role of each
of the Vice Lords -- including himself -- in the murder of James
Jackson.

															Later that day, petitioner confessed involvement in the murder
for a second time. This confession came in an interview Page 487 U. S. 289 with Assistant State's Attorney (ASA) George Smith. At the
outset of the interview, Smith reviewed with petitioner the Miranda waiver he had previously signed, and petitioner
confirmed that he had signed the waiver and understood his rights.
Smith went through the waiver procedure once again: reading
petitioner his rights, having petitioner initial each one, and sign
a waiver form. In addition, Smith informed petitioner that he was a
lawyer working with the police investigating the Jackson case.
Petitioner then gave another inculpatory statement concerning the
crime.

															Before trial, petitioner moved to suppress his statements,
arguing that they were obtained in a manner at odds with various
constitutional guarantees. The trial court denied these motions,
and the statements were used against petitioner at his trial. The
jury found petitioner guilty of murder, and petitioner was
sentenced to a 24-year prison term.

															On appeal, petitioner argued that he had not "knowingly and
intelligently" waived his Sixth Amendment right to counsel before
he gave his uncounseled postindictment confessions. Petitioner
contended that the warnings he received, while adequate for the
purposes of protecting his Fifth Amendment rights as guaranteed by Miranda, did not adequately inform him of his Sixth
Amendment right to counsel. The Illinois Supreme Court, however,
rejected this theory, applying its previous decision in People
v. Owens, 102 Ill. 2d
88 , 464 N.E.2d
261 , cert. denied, 469 U.S. 963 (1984), which had held
that Miranda warnings were sufficient to make a defendant
aware of his Sixth Amendment right to counsel during postindictment
questioning. People v. Thomas, 116 Ill. 2d
290 , 298-300, 507 N.E.2d
843 , 846-847 (1987).

															In reaching this conclusion, the Illinois Supreme Court noted
that this Court had reserved decision on this question on several
previous occasions, [ Footnote
2 ] and that the lower courts are Page 487 U. S. 290 divided on the issue. Id. at 299, 507 N.E.2d at 846. We
granted this petition for certiorari, 484 U.S. 895 (1987), to
resolve this split of authority and to address the issues we had
previously left open. II There can be no doubt that petitioner had the right to have the
assistance of counsel at his postindictment interviews with law
enforcement authorities. Our cases make it plain that the Sixth
Amendment guarantees this right to criminal defendants. Michigan v. Jackson, 475 U. S. 625 , 475 U. S.
629 -630 (1986); Brewer v. Williams, 430 U. S. 387 , 430 U. S.
398 -401 (1977); Massiah v. United States, 377 U. S. 201 , 377 U. S.
205 -207 (1964). [ Footnote 3 ] Petitioner asserts that the questioning that
produced his incriminating statements violated his Sixth Amendment
right to counsel in two ways. A Petitioner's first claim is that, because his Sixth Amendment
right to counsel arose with his indictment, the police were
thereafter barred from initiating a meeting with him. See Brief for Petitioner 30-31; Tr. of Oral Arg. 2, 9, 11, 17. He
equates himself with a preindictment suspect who, while being
interrogated, asserts his Fifth Amendment right to counsel; under Edwards v. Arizona, 451 U. S. 477 (1981), such a suspect may not be questioned again unless he
initiates the meeting.

															Petitioner, however, at no time sought to exercise his right to
have counsel present. The fact that petitioner's Sixth Page 487 U. S. 291 Amendment right came into existence with his indictment, i.e., that he had such a right at the time of his
questioning, does not distinguish him from the preindictment
interrogatee whose right to counsel is in existence and available
for his exercise while he is questioned. Had petitioner indicated
he wanted the assistance of counsel, the authorities' interview
with him would have stopped, and further questioning would have
been forbidden (unless petitioner called for such a meeting). This
was our holding in Michigan v. Jackson, supra, which
applied Edwards to the Sixth Amendment context. We observe
that the analysis in Jackson is rendered wholly
unnecessary if petitioner's position is correct: under petitioner's
theory, the officers in Jackson would have been completely
barred from approaching the accused in that case unless he called
for them. Our decision in Jackson, however, turned on the
fact that the accused "ha[d] asked for the help of a lawyer" in
dealing with the police. Jackson, supra, at 475 U. S. 631 ,
633-635.

															At bottom, petitioner's theory cannot be squared with our
rationale in Edwards, the case he relies on for support. Edwards rested on the view that, once "an accused . . .
ha[s] expressed his desire to deal with the police only through
counsel," he should

															"not [be] subject to further interrogation by the authorities
until counsel has been made available to him, unless the accused
himself initiates further communication." Edwards, supra, at 451 U. S.
484 -485; cf. also Michigan v. Mosley, 423 U. S. 96 , 423 U. S. 104 ,
n. 10 (1975). Preserving the integrity of an accused's choice to
communicate with police only through counsel is the essence of Edwards and its progeny -- not barring an accused from
making an initial election as to whether he will face the
State's officers during questioning with the aid of counsel, or go
it alone. If an accused "knowingly and intelligently" pursues the
latter course, we see no reason why the uncounseled statements he
then makes must be excluded at his trial. Page 487 U. S. 292 B Petitioner's principal and more substantial claim is that
questioning him without counsel present violated the Sixth
Amendment because he did not validly waive his right to have
counsel present during the interviews. Since it is clear that,
after the Miranda warnings were given to petitioner, he
not only voluntarily answered questions without claiming his right
to silence or his right to have a lawyer present to advise him, but
also executed a written waiver of his right to counsel during
questioning, the specific issue posed here is whether this waiver
was a "knowing and intelligent" waiver of his Sixth Amendment
right. [ Footnote 4 ] See
Brewer v. Williams, supra, at 430 U. S. 401 , 430 U. S. 404 ; Johnson v. Zerbst, 304 U. S. 458 , 304 U. S.
464 -465 (1938).

															In the past, this Court has held that a waiver of the Sixth
Amendment right to counsel is valid only when it reflects "an
intentional relinquishment or abandonment of a known right or
privilege." Johnson v. Zerbst, supra, at 304 U. S. 464 .
In other words, the accused must "kno[w] what he is doing" so that
"his choice is made with eyes open." Adams v. United States ex
rel. McCann, 317 U. S. 269 , 317 U. S. 279 (1942). In a case arising under the Fifth Amendment, we described
this requirement as "a full awareness of both the nature of the
right being abandoned and the consequences of the decision to
abandon it." Moran v. Burbine, 475 U.
S. 412 , 475 U. S. 421 (1986). Whichever of these formulations is used, the key inquiry in
a case such as this one must be: was the accused, who waived his
Sixth Amendment rights during postindictment questioning, made
sufficiently aware of his right to have counsel present during the
questioning, and of the possible consequences Page 487 U. S. 293 of a decision to forgo the aid of counsel? In this case, we are
convinced that, by admonishing petitioner with the Miranda warnings, respondent has met this burden, and that petitioner's
waiver of his right to counsel at the questioning was valid.
[ Footnote 5 ]

															First, the Miranda warnings given petitioner made him
aware of his right to have counsel present during the questioning.
By telling petitioner that he had a right to consult with an
attorney, to have a lawyer present while he was questioned, and
even to have a lawyer appointed for him if he could not afford to
retain one on his own, Officer Gresham and ASA Smith conveyed to
petitioner the sum and substance of the rights that the Sixth
Amendment provided him. "Indeed, it seems self-evident that one who
is told he" has such rights to counsel "is in a curious posture to
later complain" that his waiver of these rights was unknowing. Cf. United States v. Washington, 431 U.
S. 181 , 431 U. S. 188 (1977). There is little more petitioner could have possibly been
told in an effort to satisfy this portion of the waiver
inquiry.

															Second, the Miranda warnings also served to make
petitioner aware of the consequences of a decision by him to waive
his Sixth Amendment rights during postindictment questioning.
Petitioner knew that any statement that he made could be used
against him in subsequent criminal proceedings. This is the
ultimate adverse consequence petitioner could have suffered by
virtue of his choice to make Page 487 U. S. 294 uncounseled admissions to the authorities. This warning also
sufficed -- contrary to petitioner's claim here, see Tr.
of Oral Arg. 7-8 -- to let petitioner know what a lawyer could "do
for him" during the postindictment questioning: namely, advise
petitioner to refrain from making any such statements. [ Footnote 6 ] By knowing what could be
done with any statements he might make, and therefore, what benefit
could be obtained by having the aid of counsel while making such
statements, petitioner was essentially informed of the possible
consequences of going without counsel during questioning. If
petitioner nonetheless lacked "a full and complete appreciation of
all of the consequences flowing" from his waiver, it does not
defeat the State's showing that the information it provided to him
satisfied the constitutional minimum. Cf. Oregon v.
Elstad, 470 U. S. 298 , 470 U. S.
316 -317 (1985).

															Our conclusion is supported by petitioner's inability, in the
proceedings before this Court, to articulate with precision what
additional information should have been provided to him before he
would have been competent to waive his right to counsel. All that
petitioner's brief and reply brief suggest is petitioner should
have been made aware of his "right under the Sixth Amendment to the
broad protection of counsel" -- a rather nebulous suggestion -- and
the "gravity of [his] situation." Reply Brief for Petitioner 13; see Brief for Petitioner 30-31. But surely this latter
"requirement" (if it is one) was met when Officer Gresham informed
petitioner that he had been formally charged with the murder of
James Jackson. Page 487 U. S. 295 See n 8, infra. Under close questioning on this same point at
argument, petitioner likewise failed to suggest any meaningful
additional information that he should have been, but was not,
provided in advance of his decision to waive his right to counsel.
[ Footnote 7 ] The discussions
found in favorable court decisions, on which petitioner relies, are
similarly lacking. [ Footnote
8 ] Page 487 U. S. 296 As a general matter, then, an accused who is admonished with the
warnings prescribed by this Court in Miranda, 384 U.S. at 384 U. S. 479 ,
has been sufficiently apprised of the nature of his Sixth Amendment
rights, and of the consequences of abandoning those rights, so that
his waiver on this basis will be considered a knowing and
intelligent one. [ Footnote 9 ]
We feel that Page 487 U. S. 297 our conclusion in a recent Fifth Amendment case is equally
apposite here:

															"Once it is determined that a suspect's decision not to rely on
his rights was uncoerced, that he at all times knew he could stand
mute and request a lawyer, and that he was aware of the State's
intention to use his statements to secure a conviction, the
analysis is complete, and the waiver is valid as a matter of
law." See Moran v. Burbine, 475 U.S. at 475 U. S.
422 -423. C We consequently reject petitioner's argument, which has some
acceptance from courts and commentators, [ Footnote 10 ] that, since "the sixth amendment right
[to counsel] is far superior to that of the fifth amendment right,"
and since "[t]he greater the right, the greater the loss from a
waiver of that right," waiver of an accused's Sixth Amendment right
to counsel should be "more difficult" to effectuate than waiver of
a suspect's Fifth Amendment rights. Brief for Petitioner 23. While
our cases have recognized a "difference" between the Fifth
Amendment and Sixth Amendment rights to counsel, and the "policies"
behind these constitutional guarantees, [ Footnote 11 ] we have never suggested that one right is
"superior" or "greater" than the other, nor is there any support in
our cases for the notion that, because Page 487 U. S. 298 a Sixth Amendment right may be involved, it is more difficult to
waive than the Fifth Amendment counterpart.

															Instead, we have taken a more pragmatic approach to the waiver
question -- asking what purposes a lawyer can serve at the
particular stage of the proceedings in question, and what
assistance he could provide to an accused at that stage -- to
determine the scope of the Sixth Amendment right to counsel, and
the type of warnings and procedures that should be required before
a waiver of that right will be recognized.

															At one end of the spectrum, we have concluded there is no Sixth
Amendment right to counsel whatsoever at a postindictment
photographic display identification, because this procedure is not
one at which the accused "require[s] aid in coping with legal
problems or assistance in meeting his adversary." See United
States v. Ash, 413 U. S. 300 , 413 U. S.
313 -320 (1973). At the other extreme, recognizing the
enormous importance and role that an attorney plays at a criminal
trial, we have imposed the most rigorous restrictions on the
information that must be conveyed to a defendant, and the
procedures that must be observed, before permitting him to waive
his right to counsel at trial. See Faretta v. California, 422 U. S. 806 , 422 U. S.
835 -836 (1975); cf. Von Moltke v. Gillies, 332 U. S. 708 , 332 U. S.
723 -724 (1948). In these extreme cases, and in others
that fall between these two poles, we have defined the scope of the
right to counsel by a pragmatic assessment of the usefulness of
counsel to the accused at the particular proceeding, and the
dangers to the accused of proceeding without counsel. An accused's
waiver of his right to counsel is "knowing" when he is made aware
of these basic facts.

															Applying this approach, it is our view that whatever warnings
suffice for Miranda's purposes will also be sufficient in
the context of postindictment questioning. The State's decision to
take an additional step and commence formal adversarial proceedings
against the accused does not substantially increase the value of
counsel to the accused at questioning, or expand the limited
purpose that an attorney serves when the Page 487 U. S. 299 accused is questioned by authorities. With respect to this
inquiry, we do not discern a substantial difference between the
usefulness of a lawyer to a suspect during custodial interrogation
and his value to an accused at postindictment questioning.
[ Footnote 12 ]

															Thus, we require a more searching or formal inquiry before
permitting an accused to waive his right to counsel at trial than
we require for a Sixth Amendment waiver during postindictment
questioning -- not because postindictment questioning is
"less important" than a trial (the analysis that petitioner's
"hierarchical" approach would suggest) -- but because the full
"dangers and disadvantages of self-representation," Faretta,
supra, at 422 U. S. 835 ,
during questioning are less substantial and more obvious to an
accused than they are at trial. [ Footnote 13 ] Because the role of counsel at questioning
is relatively simple and limited, we see no problem in having a
waiver procedure at that stage which is likewise simple and
limited. So long as the accused is made aware of the "dangers and
disadvantages Page 487 U. S. 300 of self-representation" during postindictment questioning, by
use of the Miranda warnings, his waiver of his Sixth
Amendment right to counsel at such questioning is "knowing and
intelligent." III Before confessing to the murder of James Jackson, petitioner was
meticulously informed by authorities of his right to counsel, and
of the consequences of any choice not to exercise that right. On
two separate occasions, petitioner elected to forgo the assistance
of counsel and speak directly to officials concerning his role in
the murder. Because we believe that petitioner's waiver of his
Sixth Amendment rights was "knowing and intelligent," we find no
error in the decision of the trial court to permit petitioner's
confessions to be used against him. Consequently, the judgment of
the Illinois Supreme Court is Affirmed. [ Footnote 1 ]

															Although the signed waiver form does not appear in the record or
the appendix, petitioner concedes that he was informed of his right
to counsel to the extent required by our decision in Miranda v.
Arizona, 384 U. S. 436 (1966). Brief for Petitioner 3; Tr. of Oral Arg. 6-8.

															This apparently included informing petitioner that he had a
right to remain silent; that anything he might say could be used
against him; that he had a right to consult with an attorney; that
he had a right to have an attorney present during interrogation;
and that, as an indigent, the State would provide him with a lawyer
if he so desired.

															[ Footnote 2 ] See, e.g., Michigan v. Jackson, 475 U.
S. 625 , 475 U. S.
635 -636, n. 10 (1986); Moran v. Burbine, 475 U. S. 412 , 475 U. S. 428 ,
n. 2 (1986); Brewer v. Williams, 430 U.
S. 387 , 430 U. S.
405 -406 (1977).

															[ Footnote 3 ]

															We note as a matter of some significance that petitioner had not
retained, or accepted by appointment, a lawyer to represent him at
the time he was questioned by authorities. Once an accused has a
lawyer, a distinct set of constitutional safeguards aimed at
preserving the sanctity of the attorney-client relationship takes
effect. See Maine v. Moulton, 474 U.
S. 159 , 474 U. S. 176 (1985). The State conceded as much at argument. See Tr. of
Oral Arg. 28.

															Indeed, the analysis changes markedly once an accused even
requests the assistance of counsel. See Michigan v. Jackson,
supra; 487 U. S. infra. [ Footnote 4 ]

															Of course, we also require that any such waiver must be
voluntary. Petitioner contested the voluntariness of his confession
in the trial court and in the intermediate appellate courts, which
rejected petitioner's claim that his confessions were coerced. See 140 Ill.App.3d 421, 425-426, 488 N.E.2d 1283, 1287
(1986).

															Petitioner does not appear to have maintained this contention
before the Illinois Supreme Court, and in any event, he does not
press this argument here. Thus, the "voluntariness" of petitioner's
confessions is not before us.

															[ Footnote 5 ]

															We emphasize the significance of the fact that petitioner's
waiver of counsel was only for this limited aspect of the criminal
proceedings against him -- only for postindictment questioning. Our
decision on the validity of petitioner's waiver extends only so
far.

															Moreover, even within this limited context, we note that
petitioner's waiver was binding on him only so long as he
wished it to be. Under this Court's precedents, at any time during
the questioning, petitioner could have changed his mind, elected to
have the assistance of counsel, and immediately dissolve the
effectiveness of his waiver with respect to any subsequent
statements. See, e.g., Michigan v. Jackson, 475 U.S. at 475 U. S.
631 -635; 487 U. S. supra. Our decision today does nothing to change this
rule.

															[ Footnote 6 ]

															An important basis for our analysis is our understanding that an
attorney's role at postindictment questioning is rather limited,
and substantially different from the attorney's role in later
phases of criminal proceedings. At trial, an accused needs an
attorney to perform several varied functions -- some of which are
entirely beyond even the most intelligent layman. Yet during
postindictment questioning, a lawyer's role is rather
unidimensional: largely limited to advising his client as to what
questions to answer and which ones to decline to answer.

															We discuss this point in greater detail below. See 487 U. S. infra. [ Footnote 7 ]

															Representative excerpts from the relevant portions of argument
include the following:

															"QUESTION: [Petitioner] . . . was told that he had a right to
counsel."

															"MR. HONCHELL [petitioner's counsel]: He was told -- the word
'counsel' was used. He was told he had a right to counsel. But not
through information by which it would become meaningful to him,
because the method that was used was not designed to alert the
accused to the Sixth Amendment rights to counsel. . . ."

															"QUESTION: . . . You mean they should have said you have a Sixth
Amendment right to counsel instead of just, you have a right to
counsel?"

															"He knew he had a right to have counsel present before [he] made
the confession. Now, what in addition did he have to know to make
the waiver an intelligent one?"

															"MR. HONCHELL: He had to meaningfully know he had a Sixth
Amendment right to counsel present because -- "

															"QUESTION: What is the difference between meaningfully knowing
and knowing?"

															"MR. HONCHELL: Because the warning here used did not convey or
express what counsel was intended to do for him after
indictment."

															"QUESTION: So then you say . . . [that] he would have had to be
told more about what counsel would do for him after indictment
before he could intelligently waive?"

															"MR. HONCHELL: That there is a right to counsel who would act on
his behalf and represent him."

															" * * * *" "QUESTION: Well, okay. So it should have said, in addition to
saying counsel, counsel who would act on your behalf and represent
you? That would have been the magic solution?"

															"MR. HONCHELL: That is a possible method, yes."

															Tr. of Oral Arg. 7-8. We do not believe that adding the words
"who would act on your behalf and represent you" in Sixth Amendment
cases would provide any meaningful improvement in the Miranda warnings. Cf. Brewer v. Williams, 430
U.S. at 430 U. S.
435 -436, n. 5 (WHITE, J., dissenting).

															[ Footnote 8 ]

															Even those lower court cases which have suggested that something
beyond Miranda warnings is -- or may be -- required before
a Sixth Amendment waiver can be considered "knowing and
intelligent" have failed to suggest just what this "something more"
should be. See, e.g., Felder v. McCotter, 765 F.2d 1245,
1250 (CA5 1985); Robinson v. Percy, 738 F.2d 214, 222 (CA7
1984); Fields v. Wyrick, 706 F.2d 879, 880-881 (CA8
1983).

															An exception to this is the occasional suggestion that, in
addition to the Miranda warnings, an accused should be
informed that he has been indicted before a postindictment waiver
is sought. See, e.g., United States v. Mohabir, 624 F.2d
1140, 1150 (CA2 1980); United States v. Payton, 615 F.2d
922, 924-925 (CA1), cert. denied, 446 U.S. 969 (1980).
Because, in this case, petitioner concedes that he was so informed, see Brief for Petitioner 3, we do not address the question
whether or not an accused must be told that he has been indicted
before a postindictment Sixth Amendment waiver will be valid. Nor
do we even pass on the desirability of so informing the accused --
a matter that can be reasonably debated. See, e.g., Tr. of
Oral Arg. 24.

															Beyond this, only one Court of Appeals -- the Second Circuit --
has adopted substantive or procedural requirements (in addition to Miranda ) that must be completed before a Sixth Amendment
waiver can be effectuated for postindictment questioning. See
United States v. Mohabir, 624 F.2d at 1150-1153. As have a
majority of the Courts of Appeals, we reject Mohabir's holding that some "additional" warnings or discussions with an
accused are required in this situation, or that any waiver in this
context can only properly be made before a "neutral . . . judicial
officer." Ibid. [ Footnote 9 ]

															This does not mean, of course, that all Sixth Amendment
challenges to the conduct of postindictment questioning will fail
whenever the challenged practice would pass constitutional muster
under Miranda. For example, we have permitted a Miranda waiver to stand where a suspect was not told that
his lawyer was trying to reach him during questioning; in the Sixth
Amendment context, this waiver would not be valid. See Moran v.
Burbine, 475 U.S. at 475 U. S. 424 , 475 U. S. 428 .
Likewise a surreptitious conversation between an undercover police
officer and an unindicted suspect would not give rise to any Miranda violation as long as the "interrogation" was not
in a custodial setting, see Miranda, 384 U.S. at 384 U. S. 475 ;
however, once the accused is indicted, such questioning would be
prohibited. See United States v. Henry, 447 U.
S. 264 , 447 U. S. 273 , 447 U. S.
274 -275 (1980).

															Thus, because the Sixth Amendment's protection of the
attorney-client relationship -- "the right to rely on counsel as a medium' between [the accused] and the State" -- extends beyond Miranda's protection of the Fifth Amendment right to
counsel, see Maine v. Moulton, 474 U.S. at 474 U. S. 176 ,
there will be cases where a waiver which would be valid under Miranda will not suffice for Sixth Amendment purposes. See also Michigan v. Jackson, 475 U.S. at 475 U. S.
632 . [ Footnote 10 ] See, e.g., United States v. Mohabir, supra, at
1149-1152; Note, Proposed Requirements for Waiver of the Sixth
Amendment Right to Counsel, 82 Colum.L.Rev. 363, 372 (1982).

															[ Footnote 11 ] See, e.g., Michigan v. Jackson, supra, at 475 U. S. 633 ,
n. 7; Rhode Island v. Innis, 446 U.
S. 291 , 446 U. S. 300 ,
n. 4 (1980).

															[ Footnote 12 ]

															We note, incidentally, that in the Miranda decision
itself, the analysis and disposition of the waiver question relied
on this Court's decision in Johnson v. Zerbst, 304 U. S. 458 (1938) -- a Sixth Amendment waiver case. See
Miranda, 384 U.S. at 384 U. S.
475 .

															From the outset, then, this Court has recognized that the waiver
inquiry focuses more on the lawyer's role during such questioning,
rather than the particular constitutional guarantee that gives rise
to the right to counsel at that proceeding. See ibid.; see also
Moran v. Burbine, supra, at 475 U. S. 421 .
Thus, it should be no surprise that we now find a strong similarity
between the level of knowledge a defendant must have to waive his
Fifth Amendment right to counsel and the protection accorded to
Sixth Amendment rights. See Comment, Constitutional Law --
Right to Counsel, 49 Geo.Wash.L.Rev. 399, 409 (1981).

															[ Footnote 13 ]

															As discussed above, see n 6, supra, an attorney's role at questioning is
relatively limited. But at trial, counsel is required to help even
the most gifted layman adhere to the rules of procedure and
evidence, comprehend the subtleties of voir dire, examine
and cross-examine witnesses effectively (including the accused),
object to improper prosecution questions, and much more. Cf.,
e.g., 1 Bench Book for United States District Court Judges
1.02-2-1.02-5 (3d ed.1986); McDowell v. United States, 484 U. S. 980 (1987) (WHITE, J., dissenting from denial of certiorari).

															JUSTICE BLACKMUN, dissenting.

															I agree with most of what JUSTICE STEVENS says in his dissenting
opinion, post, p. 487 U. S. 301 . I, however, merely would hold that, after
formal adversary proceedings against a defendant have been
commenced, the Sixth Amendment mandates that the defendant not
be

															"'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.'" Michigan v. Jackson, 475 U. S. 625 , 475 U. S. 626 (1986), quoting Edwards v. Arizona, 451 U.
S. 477 , 451 U. S.
484 -485 (1981).

															The Court's majority concludes, ante at 487 U. S.
290 -291:

															"The fact that petitioner's Sixth Amendment right came into
existence with his indictment . . . does not distinguish him from
the preindictment interrogatee whose right to counsel is in
existence and available for his exercise while he is
questioned."

															I must disagree.

															"[W]hen the Constitution grants protection against criminal
proceedings without the assistance of counsel, Page 487 U. S. 301 counsel must be furnished whether or not the accused requested
the appointment of counsel." Carnley v. Cochran, 369 U. S. 506 , 369 U. S. 513 (1962) (internal quotations omitted). In my view, the Sixth
Amendment does not allow the prosecution to take undue advantage of
any gap between the commencement of the adversary process and the
time at which counsel is appointed for a defendant.

															JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, dissenting.

															The Court should not condone unethical forms of trial
preparation by prosecutors or their investigators. In civil
litigation it is improper for a lawyer to communicate with his or
her adversary's client without either notice to opposing counsel or
the permission of the court. [ Footnote
2/1 ] An attempt to obtain evidence for use at trial by going
behind the back of one's adversary would be not only a serious
breach of professional ethics, but also a manifestly unfair form of
trial practice. In the criminal context, the same ethical rules
apply and, in my opinion, notions of fairness that are at least as
demanding should also be enforced.

															After a jury has been empaneled and a criminal trial is in
progress, it would obviously be improper for the prosecutor to
conduct a private interview with the defendant for the purpose Page 487 U. S. 302 of obtaining evidence to be used against him at trial. By
"private interview," I mean, of course, an interview initiated by
the prosecutor, or his or her agents, without notice to the
defendant's lawyer and without the permission of the court. Even if
such an interview were to be commenced by giving the defendant the
five items of legal advice that are mandated by Miranda, see
ante at 487 U. S. 288 ,
n. 1, I have no doubt that this Court would promptly and
unanimously condemn such a shabby practice. As our holding in Michigan v. Jackson, 475 U. S. 625 (1986), suggests, such a practice would not simply constitute a
serious ethical violation, but would rise to the level of an
impairment of the Sixth Amendment right to counsel. [ Footnote 2/2 ] Page 487 U. S. 303 The question that this case raises, therefore, is at what point
in the adversary process does it become impermissible for the
prosecutor, or his or her agents, to conduct such private
interviews with the opposing party? Several alternatives are
conceivable: when the trial commences, when the defendant has
actually met and accepted representation by his or her appointed
counsel, when counsel is appointed, or when the adversary process
commences. In my opinion, the Sixth Amendment right to counsel
demands that a firm and unequivocal line be drawn at the point at
which adversary proceedings commence.

															In prior cases, this Court has used strong language to emphasize
the significance of the formal commencement of adversary
proceedings. Such language has been employed to explain decisions
denying the defendant the benefit of the protection of the Sixth
Amendment in preindictment settings, but an evenhanded
interpretation of the Amendment would support the view that
additional protection should automatically attach the moment the
formal proceedings Page 487 U. S. 304 begin. One such example is Kirby v. Illinois, 406 U. S. 682 (1972), in which the Court concluded that the general rule
requiring the presence of counsel at pretrial, lineup
identifications, see United States v. Wade, 388 U.
S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967), should not extend to protect custodial defendants not yet
formally charged. Justice Stewart's plurality opinion explained the
significance of the formal charge:

															"The initiation of judicial criminal proceedings is far from a
mere formalism. It is the starting point of our whole system of
adversary criminal justice. For it is only then that the government
has committed itself to prosecute, and only then that the adverse
positions of government and defendant have solidified. It is then
that a defendant finds himself faced with the prosecutorial forces
of organized society, and immersed in the intricacies of
substantive and procedural criminal law. It is this point,
therefore, that marks the commencement of the 'criminal
prosecutions' to which alone the explicit guarantees of the Sixth
Amendment are applicable. See Powell v. Alabama, 287 U.S.
at 487 U. S. 66 -71; Massiah
v. United States, 377 U. S. 201 ; Spano v. New
York, 360 U. S. 315 , 360 U. S.
324 (Douglas, J., concurring)."

															406 U.S. at 406 U. S.
689 -690 (footnote omitted).

															Similarly, in United States v. Gouveia, 467 U.
S. 180 (1984), we relied upon the significance of the
absence of a formal charge in concluding that the Sixth Amendment
does not require the appointment of counsel for indigent prison
inmates confined in administrative detention while authorities
investigate their possible involvement in criminal activity. Again,
the Court noted that,

															"given the plain language of the Amendment and its purpose of
protecting the unaided layman at critical confrontations with his
adversary, our conclusion that the right to counsel attaches at the
initiation of adversary judicial Page 487 U. S. 305 criminal proceedings 'is far from a mere formalism.' Kirby
v. Illinois, 406 U.S. at 406 U. S.
689 ." Id. at 467 U. S.
189 .

															Most recently, in Moran v. Burbine, 475 U.
S. 412 (1986), the Court upheld a waiver of the right to
counsel in a pretrial context even though the waiver "would not be
valid" if the same situation had arisen after indictment, see
ante at 487 U. S.
296 -297, n. 9. In the Moran opinion, the Court
explained:

															"It is clear, of course, that, absent a valid waiver, the
defendant has the right to the presence of an attorney during any
interrogation occurring after the first formal charging proceeding,
the point at which the Sixth Amendment right to counsel initially
attaches. United States v. Gouveia, 467 U.
S. 180 , 467 U. S. 187 (1984); Kirby v. Illinois, 406 U.
S. 682 , 406 U. S. 689 (1972) (opinion of Stewart, J.). See Brewer v. Williams, 430 U.S. at 430 U. S.
400 -401. And we readily agree that, once the right has attached, it follows that the police may not interfere
with the efforts of a defendant's attorney to act as a " medium'
between [the suspect] and the State" during the interrogation. Maine v. Moulton, 474 U. S. 159 , 474 U. S. 176 (1985); see Brewer v. Williams, supra, at 430 U. S. 401 ,
n. 8. The difficulty for respondent is that the interrogation
sessions that yielded the inculpatory statements took place before the initiation of "adversary judicial proceedings." United States v. Gouveia, supra, at 467 U. S.
192 ." 475 U.S. at 475 U. S.
428 .

															Today, however, in reaching a decision similarly favorable to
the interest in law enforcement unfettered by process concerns, the
Court backs away from the significance previously attributed to the
initiation of formal proceedings. In the majority's view, the
purported waiver of counsel in this case is properly equated with
that of an unindicted suspect. Yet, as recognized in Kirby,
Gouveia, and Moran, important differences Page 487 U. S. 306 separate the two. [ Footnote 2/3 ]
The return of an indictment, or like instrument, substantially
alters the relationship between the state and the accused. Only
after a formal accusation has "the government . . . committed
itself to prosecute, and only then [have] the adverse positions of
government and defendant . . . solidified." Kirby, 406
U.S. at 406 U. S. 689 .
Moreover, the return of an indictment also presumably signals the
government's conclusion that it has sufficient evidence to
establish a prima facie case. As a result, any further
interrogation can only be designed to buttress the government's
case; authorities are no longer simply attempting " to solve a
crime.'" United States v. Mohabir, 624 F.2d 1140, 1148
(CA2 1980) (quoting People v. Waterman, 9 N.Y.2d 561, 565,
175 N.E.2d 445, 447 (1961)); see also Moran v. Burbine, 475 U.S. at 475 U. S. 430 .
Given the significance of the initiation of formal proceedings and
the concomitant shift in the relationship between the state and the
accused, I think it quite wrong to suggest that Miranda warnings -- or for that Page 487 U. S. 307 matter, any warnings offered by an adverse party -- provide a
sufficient basis for permitting the undoubtedly prejudicial -- and,
in my view, unfair -- practice of permitting trained law
enforcement personnel and prosecuting attorneys to communicate with
as-of-yet unrepresented criminal defendants.

															It is well settled that there is a strong presumption against
waiver of Sixth Amendment protections, see Michigan v.
Jackson, 475 U.S. at 475 U. S. 633 ; Von Moltke v. Gillies, 332 U. S. 708 , 332 U. S. 723 (1948) (plurality opinion); Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 (1938), and that a waiver may only be accepted if made with full
awareness of "the dangers and disadvantages of
self-representation," Faretta v. California, 422 U.
S. 806 , 422 U. S. 835 (1975); see also Adams v. United States ex rel. McCann, 317 U. S. 269 , 317 U. S. 279 (1942) (accused "may waive his Constitutional right to assistance
of counsel if he knows what he is doing and his choice is made with
eyes open"). Warnings offered by an opposing party, whether
detailed or cursory, simply cannot satisfy this high standard.

															The majority premises its conclusion that Miranda warnings lay a sufficient basis for accepting a waiver of the right
to counsel on the assumption that those warnings make clear to an
accused

															"what a lawyer could 'do for him' during the postindictment
questioning: namely, advise [him] to refrain from making any
[incriminating] statements." Ante at 487 U. S. 294 (footnote omitted). [ Footnote 2/4 ]
Yet this is surely a gross understatement of the disadvantage of
proceeding without a lawyer and Page 487 U. S. 308 an understatement of what a defendant must understand to make a
knowing waiver. [ Footnote 2/5 ] The Miranda warnings do not, for example, inform the accused
that a lawyer might examine the indictment for legal sufficiency
before submitting his or her client to interrogation, or that a
lawyer is likely to be considerably more skillful at negotiating a
plea bargain, and that such negotiations may be most fruitful if
initiated prior to any interrogation. Rather, the warnings do not
even go so far as to explain to the accused the nature of the
charges pending against him -- advice that a court would insist
upon before allowing a defendant to enter a guilty plea with or
without the presence of an attorney, see Henderson v.
Morgan, 426 U. S. 637 (1976). Without defining precisely the nature of the inquiry
required to establish a valid waiver of the Sixth Amendment right
to counsel, it must be conceded that at least minimal advice is
necessary -- the accused must be told of the "dangers and
disadvantages of self-representation."

															Yet, once it is conceded that certain advice is required and
that, after indictment, the adversary relationship between the
state and the accused has solidified, it inescapably follows Page 487 U. S. 309 that a prosecutor may not conduct private interviews with a
charged defendant. As at least one Court of Appeals has recognized,
there are ethical constraints that prevent a prosecutor from giving
legal advice to an uncounseled adversary. [ Footnote 2/6 ] Thus, neither the prosecutor nor his or
her agents can ethically provide the unrepresented defendant with
the kind of advice that should precede an evidence-gathering
interview after formal proceedings have been commenced. Indeed, in
my opinion even the Miranda warnings themselves are a
species of legal advice that is improper when given by the
prosecutor after indictment.

															Moreover, there are good reasons why such advice is deemed
unethical, reasons that extend to the custodial, postindictment
setting with unequaled strength. First, the offering of legal
advice may lead an accused to underestimate the prosecuting
authorities' true adversary posture. For an incarcerated defendant
-- in this case, a 17-year-old who had been in custody for 44 hours
at the time he was told of the Page 487 U. S. 310 indictment -- the assistance of someone to explain why he is
being held, the nature of the charges against him, and the extent
of his legal rights, may be of such importance as to overcome what
is perhaps obvious to most, that the prosecutor is a foe, and not a
friend. Second, the adversary posture of the parties, which is not
fully solidified until formal charges are brought, will inevitably
tend to color the advice offered. As hard as a prosecutor might
try, I doubt that it is possible for one to wear the hat of an
effective adviser to a criminal defendant while at the same time
wearing the hat of a law enforcement authority. Finally, regardless
of whether or not the accused actually understands the legal and
factual issues involved and the state's role as an adversary party,
advice offered by a lawyer (or his or her agents) with such an
evident conflict of interest cannot help but create a public
perception of unfairness and unethical conduct. And as we held
earlier this Term,

															"courts have an independent interest in ensuring that criminal
trials are conducted within the ethical standards of the
profession, and that legal proceedings appear fair to all who
observe them." Wheat v. United States, 486 U.
S. 153 , 486 U. S. 160 (1988). This interest is a factor that may be considered in
deciding whether to override a defendant's waiver of his or her
Sixth Amendment right to conflict-free representation, see
ibid., and likewise should be considered in determining
whether a waiver based on advice offered by the criminal
defendant's adversary is ever appropriate. [ Footnote 2/7 ]

															In sum, without a careful discussion of the pitfalls of
proceeding without counsel, the Sixth Amendment right cannot
properly be waived. An adversary party, moreover, cannot adequately
provide such advice. As a result, once the right to counsel
attaches and the adversary relationship between Page 487 U. S. 311 the state and the accused solidifies, a prosecutor cannot
conduct a private interview with an accused party without
"dilut[ing] the protection afforded by the right to counsel," Maine v. Moulton, 474 U. S. 159 , 474 U. S. 171 (1985). Although this ground alone is reason enough to never permit
such private interviews, the rule also presents the added virtue of
drawing a clear and easily identifiable line at the point between
the investigatory and adversary stages of a criminal proceeding.
Such clarity in definition of constitutional rules that govern
criminal proceedings is important to the law enforcement
profession, as well as to the private citizen. See Arizona v.
Roberson, 486 U. S. 675 (1988). It is true, of course, that the interest in effective law
enforcement would benefit from an opportunity to engage in
incommunicado questioning of defendants who, for reasons beyond
their control, have not been able to receive the legal advice from
counsel to which they are constitutionally entitled. But the
Court's single-minded concentration on that interest might also
lead to the toleration of similar practices at any stage of the
trial. I think it clear that such private communications are
intolerable not simply during trial, but at any point after
adversary proceedings have commenced.

															I therefore respectfully dissent.

															[ Footnote 2/1 ]

															Disciplinary Rule 7-104 of the ABA Model Code of Professional
Responsibility (1982) provides in relevant part:

															"(A) During the course of his representation of a client a
lawyer shall not:"

															"(1) Communicate or cause another to communicate on the subject
of the representation with a party he knows to be represented by a
lawyer in that matter unless he has the prior consent of the lawyer
representing such other party or is authorized by law to do
so."

															Likewise, Rule 4.2 of the ABA Model Rules of Professional
Conduct (1984) provides:

															"In representing a client, a lawyer shall not communicate about
the subject of the representation with a party the lawyer knows to
be represented by another lawyer in the matter, unless the lawyer
has the consent of the other lawyer or is authorized by law to do
so."

															[ Footnote 2/2 ]

															In Jackson, we held that,

															"if police initiate interrogation after a defendant's assertion,
at an arraignment or similar proceeding, of his right to counsel,
any waiver of the defendant's right to counsel for that
police-initiated interrogation is invalid."

															475 U.S. at 475 U. S. 636 .
In that case, we held the waiver invalid even though the appointed
law firm had not yet received notice of the appointment and the
defendant had not yet been informed that a law firm had been
appointed to represent him. Id. at 475 U. S.
627 .

															Similarly, our holdings in Massiah v. United States, 377 U. S. 201 (1964), United States v. Henry, 447 U.
S. 264 (1980), and Maine v. Moulton, 474 U. S. 159 (1985), suggest that law enforcement personnel may not bypass
counsel in favor of direct communications with an accused. In each
of these cases, the government engaged in secret attempts to elicit
incriminating statements from an indicted suspect through the use
of government informants. Yet the Court's analysis does not turn
primarily upon the covert nature of the interrogation. See
Brewer v. Williams, 430 U. S. 387 , 430 U. S. 400 (1977) ("That the incriminating statements were elicited
surreptitiously in the Massiah case, and otherwise here,
is constitutionally irrelevant"). Nor does the finding of a Sixth
Amendment violation appear to turn upon the absence of a waiver,
which, of course, could not have been obtained given the
surreptitious nature of the attempts to elicit incriminating
statements. But cf. Jackson, 475 U.S. at 475 U. S. 641 ,
n. 4 (REHNQUIST, J., dissenting). As the Court wrote in Moulton: "Once the right to counsel has attached and been asserted, the
State must of course honor it. This means more than simply that the
State cannot prevent the accused from obtaining the assistance of
counsel. The Sixth Amendment also imposes on the State an
affirmative obligation to respect and preserve the accused's choice
to seek this assistance. We have on several occasions been called
upon to clarify the scope of the State's obligation in this regard,
and have made clear that, at the very least, the prosecutor and
police have an affirmative obligation not to act in a manner that
circumvents, and thereby dilutes, the protection afforded by the
right to counsel."

															474 U.S. at 474 U. S.
170 -171 (footnote omitted). See also Henry, 447
U.S. at 447 U. S. 274 ("By intentionally creating a situation likely to induce Henry to
make incriminating statements without the assistance of counsel,
the Government violated Henry's Sixth Amendment right to counsel")
(footnote omitted); Massiah, 377 U.S. at 377 U. S. 206 ("We hold that the petitioner was denied the basic protections of
[the Sixth Amendment] guarantee when there was used against him at
his trial evidence of his own incriminating words, which federal
agents had deliberately elicited from him after he had been
indicted and in the absence of his counsel"). I think it clear that
an ex parte communication between a prosecutor, or his or
her agents, and a represented defendant -- regardless of whether
the accused has received Miranda warnings -- can only be
viewed as an attempt to "circumven[t]" and "dilut[e] the protection
afforded by the right to counsel." Moulton, 474 U.S. at 474 U. S.
171 .

															[ Footnote 2/3 ]

															Other of our prior decisions have also made clear that the
return of a formal charge fundamentally alters the relationship
between the State and the accused, conferring increased protections
upon defendants in their interactions with state authorities. In Michigan v. Jackson, 475 U. S. 625 (1986), we explained:

															"Indeed, after a formal accusation has been made -- and a person
who had previously been just a 'suspect' has become an 'accused'
within the meaning of the Sixth Amendment -- the constitutional
right to the assistance of counsel is of such importance that the
police may no longer employ techniques for eliciting information
from an uncounseled defendant that might have been entirely proper
at an earlier stage of their investigation. Thus, the surreptitious
employment of a cell-mate, see United States v. Henry, 447 U. S.
264 (1980), or the electronic surveillance of
conversations with third parties, See Maine v. Moulton , [ 474 U.S.
159 (1985)]; Massiah v. United States, 377 U. S.
201 (1964), may violate the defendant's Sixth Amendment
right to counsel even though the same methods of investigation
might have been permissible before arraignment or indictment." Id. at 475 U. S. 632 (footnote omitted). See also Wyrick v. Fields, 459 U. S. 42 , 459 U. S. 50 (1982) (MARSHALL, J., dissenting).

															[ Footnote 2/4 ]

															The majority finds support for its conclusion that Miranda warnings provide a sufficient basis for a waiver
of the Sixth Amendment right to counsel in "petitioner's inability,
in the proceedings before this Court, to articulate with precision
what additional information should have been provided to him before
he would have been competent to waive his right to counsel." Ante at 487 U. S. 294 .
Additional -- although not exhaustive -- possible warnings,
however, have been articulated. See, e.g., United States v.
Callabrass, 458 F.
Supp. 964 , 967 (SDNY 1978). Part of the difficulty in
fashioning a proper boilerplate set of warnings is that, unlike in
the Fifth Amendment context, the information that must be imparted
to the accused will vary from case to case as the facts, legal
issues, and parties differ.

															[ Footnote 2/5 ]

															Respondent, and the United States as amicus curiae, argue that the comprehensive inquiry required by Faretta v.
California, 422 U. S. 806 (1975), should not be extended to pretrial waivers because the role
of counsel -- and conversely the difficulty of proceeding without
counsel -- is more important at trial. I reject the premise that a
lawyer's skills are more likely to sit idle at a pretrial
interrogation than at trial. Both events require considerable
experience and expertise, and I would be reluctant to rank one over
the other. Moreover, as we recognized in Escobedo v.
Illinois, 378 U. S. 478 (1964):

															"[T]he"

															"right to use counsel at the formal trial [would be] a very
hollow thing [if], for all practical purposes, the conviction is
already assured by pretrial examination."

															" In re Groban, 352 U. S. 330 , 352 U. S.
344 (Black, J., dissenting)."

															"One can imagine a cynical prosecutor saying: 'Let them have the
most illustrious counsel, now. They can't escape the noose. There
is nothing that counsel can do for them at the trial.' "

															" Ex parte Sullivan, 107 F.
Supp. 514 , 517-518." Id. at 378 U. S.
487 -488 (footnote omitted). See also United States
v. Wade, 388 U. S. 218 , 388 U. S. 226 (1967); Spano v. New York, 360 U.
S. 315 , 360 U. S. 325 , 360 U. S. 326 (1959) (Douglas, J., concurring).

															[ Footnote 2/6 ]

															In discussing a suggestion that the prosecutor should supplement
the customary Miranda warnings in the postindictment
setting, the Court of Appeals for the Second Circuit wrote:

															"We believe there are strong policy reasons, grounded in ethical
considerations, for not adopting the . . . alternative of having
the prosecutor give further warnings to the defendant. The
government itself points out that a prosecutor 'is, in many senses,
an adversary of the defendant, and, as such, is counselled not to
give him legal advice;' in support of this proposition, the
government cites the ABA Code of Professional Responsibility, DR
7-104(A)(2).[14]"

															"14. DR 7-104(A) provides:"

															"During the course of his representation of a client a lawyer
shall not:"

															"(1) Communicate or cause another to communicate on the subject
of the representation with a party he knows to be represented by a
lawyer in that matter unless he has the prior consent of the lawyer
representing such other party or is authorized by law to do
so."

															"(2) Give advice to a person who is not represented by a lawyer,
other than the advice to secure counsel, if the interests of such
person are or have a reasonable possibility of being in conflict
with the interests of his client." United States v. Mohabir, 624 F.2d 1140, 1152
(1980).

															[ Footnote 2/7 ]

															In Wheat, we sustained the District Court's decision to
reject the defendant's waiver of the right to conflict-free
representation even though Wheat, unlike the petitioner, made his
decision to waive this right with the assistance of additional
counsel, see 486 U.S. at 486 U. S. 172 (STEVENS, J., dissenting).

Summary: The Supreme Court ruled that the post-indictment questioning of a petitioner, who had twice indicated his willingness to discuss a crime during police interviews and had waived his Miranda rights, did not violate his Sixth Amendment right to counsel. The Court held that the petitioner's uncounseled statements were admissible at trial as he had "knowingly and intelligently" waived his right to counsel by initialing and signing a form that conveyed the essence of his Sixth Amendment rights.