TYRONE PATTERSON, PETITIONER V. STATE OF ILLINOIS

   No. 86-7059

   In the Supreme Court of the United States

   October Term, 1987

   On Writ of Certiorari to the Supreme Court of Illinois

   Brief for the United States as Amicus Curiae Supporting Respondent

           TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
     Petitioner's statements during the post-indictment
     interrogations were properly admitted into evidence
     A. The Miranda warnings provide all the information needed to
        make a knowing waiver of the Sixth Amendment right to
        counsel during post-indictment interrogation
     B. Nothing about the Sixth Amendment right to counsel at
        interrogation justifies a waiver procedure more elaborate
        than that required by this Court's decision in Miranda
   Conclusion

                          QUESTION PRESENTED

   Whether petitioner's voluntary statements should be suppressed on
the ground that petitioner did not effectively waive his Sixth
Amendment right to the assistance of counsel at the post-indictment
interrogations.

                     INTEREST OF THE UNITED STATES

   The issue in this case is whether the warnings required by Miranda
v. Arizona, 384 U.S. 436 (1966), supply a suspect with the information
needed for an effective waiver of the Sixth Amendment right to the
assistance of counsel for purposes of post-indictment interrogation.
The Court's analysis and resolution of the question whether additional
information must be provided to suspects in this setting is likely to
have an effect upon the conduct of interrogations by federal law
enforcement officers and the admission of voluntary statements in
federal prosecutions.

                               STATEMENT

   1. Early in the morning of August 21, 1983, petitioner became
involved in a gang fight at the 1623 Club in Evanston, Illinois.  The
fight pitted several members of the Vice Lords and an allied gang --
David Thomas, Carl Harmon, Juan McCune, and petitioner -- against
members of a rival gang, the Black Mobsters.  After the fight, the
Vice Lords went to Thomas's house.  Approximately ten minutes after
they arrived, James Kevin Jackson, a member of the Black Mobsters,
drove by Thomas's house.  Thomas, McCune, Harmon, and petitioner
stopped Jackson's car and administered a severe beating to Jackson,
repeatedly kicking and hitting him in his head and body.  They then
put Jackson into the back seat of his car and drove to the end of a
nearby dead-end street.  J.A. 27, 37.

   When they arrived at the end of the street, petitioner and Harmon
pushed Jackson out of the car, and Harmon threw him face down in a
puddle of water.  Thomas suggested that they throw Jackson into a
sanitary canal that ran near the street.  Harmon and petitioner then
instructed McCune to get a knife.  McCune drove away and did not
return.  Later that morning, the police found Jackson's body in a
puddle of water near the canal.  J.A. 37-38.

   McCune, Thomas, and petitioner were separately arrested later that
day on charges stemming from the fight at the 1623 Club.  McCune
waived his Miranda rights and gave a statement admitting his
involvement in the fight and the murder of Jackson;  he also
implicated petitioner, Thomas, and Harmon in the murder.  J.A. 38;
see also Tr. 4-6, 716-719.

   After petitioner was arrested, he was questioned by Officer Michael
Gresham.  At the outset of the interview, Gresham read the Miranda
warnings to petitioner.  Petitioner stated that he understood his
rights and gave a statement regarding the fight at the 1623 Club.
Petitioner asserted, however, that he did not know anything about the
Jackson murder.  Petitioner remained in police custody overnight.
J.A. 38;  Tr. 10-12, 33, 720-723.

   The next day, August 22, Thomas and McCune were interviewed by
Assistant State's Attorney Robert Friedman.  Thomas at first waived
his Miranda rights and answered the prosecutor's questions, but in the
middle of the interview he refused to answer any more questions and
asserted his right to counsel.  Friedman also questioned McCune, who
again gave a statement implicating petitioner, Thomas, Harmon, and
himself in the murder of Jackson.  Later that evening, a police
officer told petitioner that he had been implicated in the murder and
that "charges were either approved or that the police were seeking
charges at that time." J.A. 38-39.

   On August 23, petitioner, McCune, and Thomas were indicted for
Jackson's murder.  When Officer Gresham informed petitioner of the
indictment, petitioner asked how many individuals had been indicted.
When he found out that Harmon had not been indicted, petitioner asked
"why wasn't he indicted, he did everything." Petitioner further stated
that Harmon had admitted his involvement to a woman named Dorisa.  Tr.
21, 59, 729-730;  see also J.A. 39.  Gresham immediately readvised
petitioner of his Miranda rights by giving petitioner a printed form
bearing the Miranda warnings and by reading the warnings aloud.
Petitioner initialed the warnings and signed the portion of the form
containing the waiver of rights.  Tr. 21-22, 730-732.  Petitioner then
gave a statement implicating himself in the murder.  See Tr. 22-23,
732-734.

   Assistant State's Attorney George Smith interviewed petitioner
later that same day.  Petitioner confirmed that he had signed the
Miranda waiver form given to him by Officer Gresham and that he
understood his rights at the time he signed the form.  Smith again
advised petitioner of his Miranda rights and petitioner repeated his
account of Jackson's murder.  J.A. 40;  see also Tr. 74-78, 795-797,
812-813.

   2. Prior to the trial, petitioner moved to suppress the statements
that he had made to Gresham and Smith.  The trial court denied the
motion (Tr. 168-169).  The statements were introduced at trial (Tr.
731-734, 812-813), and petitioner was convicted of murder.  He was
sentenced to 24 years' imprisonment.  J.A. 36.  /1/

   The intermediate state appellate court affirmed petitioner's
conviction (J.A. 26-35).  It rejected petitioner's claim that he had
not effectively waived his Sixth Amendment right to the assistance of
counsel, stating that petitioner "knew he was under indictment for
murder, so he was aware of the gravity of his legal situation.
Because he had been given Miranda warnings, he was informed of his
right to have an attorney present during questioning.  These facts and
circumstances are sufficient to show that (petitioner) intelligently
waived his known right to counsel before making his statements to
police" (J.A. 30).  /2/

   3. The Supreme Court of Illinois unanimously affirmed petitioner's
conviction (J.A. 36-48).  Relying on its prior decision in People v.
Owens, 102 Ill. 2d 88, 464 N.E.2d 261, cert. denied, 469 U.S. 963
(1984), the court rejected petitioner's argument that "the State must
satisfy a higher burden to establish a knowing and intelligent waiver
of the Sixth Amendment right to counsel than is necessary to establish
a waiver of the right to counsel guaranteed by Miranda" (J.A. 42).
The defendant in Owens had been advised of his Miranda rights prior to
the interrogation and was aware that he was being held in connection
with a murder investigation.  The Illinois Supreme Court held that
those facts were sufficient to establish a valid waiver.  It stated
that the defendant "was aware of the severity of the situation facing
him and, since he had been given his Miranda warnings, he knew he had
the right to have an attorney present during questioning.  Considering
these facts, together with defendant's familiarity with the Miranda
warnings, we have no doubt of the admissibility of the statements"
(People v. Owens, 102 Ill. 2d at 102-103, 464 N.E.2d at 267).

   In the present case, the court found that petitioner was "aware of
the gravity of his situation" because he learned that he had been
indicted on the murder charge before he gave his statements to Gresham
and Smith (J.A. 43).  The court further found that petitioner
"understood his constitutional rights before he gave his statements"
by virtue of the fact that he was advised of his Miranda rights and
indicated that he understood those rights (ibid.).  Therefore, the
court concluded, petitioner "knowingly and intelligently waived his
Sixth Amendment right to counsel" (J.A. 44).

                          SUMMARY OF ARGUMENT

   The Miranda warnings that petitioner received prior to each of his
confessions provided him with the information necessary for an
effective waiver of his Sixth Amendment right to have counsel present
during those interrogations.  To be sure, the Sixth Amendment right to
counsel is not identical to the right to counsel provided in Miranda
v. Arizona, 384 U.S. 436 (1966), and for that reason, the Sixth
Amendment waiver test is not identical in all respects to the waiver
inquiry under Miranda.  In the context of post-indictment
interrogations, however, the test should ordinarily be the same.

   A defendant who faces a decision whether to talk to the police
after indictment is in much the same position as a suspect who faces a
similar decision prior to the filing of formal charges.  In both
cases, there is some prospect that the individual will be able to help
himself by speaking with the authorities, but there is also a risk
that he will hurt himself by doing so.  In both cases, the individual
may be overmatched by trained interrogators, and he may not recognize
when he is making admissions that will be very damaging to him at
trial.  Under those circumstances, the Court in Miranda concluded that
a suspect in a pre-indictment interview setting could validly waive
his rights as long as he was told that he had a right to remain silent
and a right to have counsel present before questioning, and as long as
he was advised of the consequences of his waiver -- that anything he
said could be used against him in court.  In the closely analogous
setting of post-indictment interrogation, those warnings serve the
same purpose:  they apprise the defendant of everything he needs to
know in order to make a knowing waiver of his Sixth Amendment right to
counsel.

   Petitioner argues that the warnings sufficient for pre-indictment
interrogations do not suffice for post-indictment interrogations for
two reasons:  because the need for counsel is greater at a
post-indictment interrogation, and because the Sixth Amendment right
to counsel is more important than the right to counsel that is
conferred by this Court's decision in Miranda.  Neither argument is
persuasive.

   It is true that, after indictment, the proceedings change in
character from investigative to accusatory.  For that reason, it may
be less likely in the post-indictment setting that the accused can
help himself by what he says.  Yet that does not explain why it should
be more difficult for the accused to waive counsel in that setting
than in the pre-indictment context.  For purposes of the waiver
inquiry, nothing is different.  The right is still the same -- the
right to counsel -- and the unfavorable consequences of its waiver are
still the same -- the risk that the accused will create evidence
against himself.  The fact that it may be more likely in the
post-indictment setting that the consequences will turn out to be
unfavorable for the accused goes to the wisdom of the waiver, not to
whether it was knowingly made.  Accordingly, there is no reason that
the advice given by the police in the pre-indictment stage should not
suffice in the post-indictment stage as well.

   There is also no force to petitioner's second argument -- that the
rights granted by the Sixth Amendment are more important than the
rights created by the Court in Miranda, and that a waiver of the
former should therefore require more elaborate procedures than a
waiver of the latter.  That argument misses the point of the waiver
inquiry.  This Court has not created a sliding scale of waiver, in
which rights thought to be of secondary concern are readily found to
be waived, while waiver is more grudgingly found in the case of rights
that are thought to be more important.  Instead, the validity of a
waiver turns on the content of the right being waived.  If the right
is a simple one and the consequences of foregoing it are obvious, the
waiver inquiry need not be exhaustive.  On the other hand, if the
right at issue is complex and the consequences of waiver unclear, a
more detailed inquiry may be required.

   That analysis explains the difference between the waiver inquiry
when the right at issue is the right to counsel at trial, as opposed
to the right to counsel at a pretrial interrogation.  Because the
defendant's right to the assistance of counsel at trial is somewhat
complex, the Court has required, as a prerequisite to a valid waiver,
that the individual be given a relatively detailed explanation of just
what he is surrendering by proceeding pro se or with counsel who is
burdened by a conflict of interest.  When the issue is the assistance
of counsel at an interrogation, on the other hand, the risks facing
the suspect are much more easily explained.  Advising the suspect of
his right to counsel and warning him that if he waives the right he
may produce evidence that could be used against him therefore provides
a sufficient foundation for upholding a subsequent waiver as voluntary
and informed.

                               ARGUMENT

 PETITIONER'S STATEMENTS DURING THE POST-INDICTMENT INTERROGATIONS
WERE PROPERLY ADMITTED INTO EVIDENCE

   Under this Court's decisions, it is clear that petitioner had the
right to the assistance of counsel at the post-indictment
interrogations that resulted in his two inculpatory statements.
Although the "core purpose" of the Sixth Amendment right to counsel is
to assure that the accused has the assistance of counsel at trial
(United States v. Ash, 413 U.S. 300, 309 (1973)), the Court has
extended the right to counsel to "certain 'critical' pretrial
proceedings" that occur after the commencement of adversary judicial
proceedings (United States v. Gouveia, 467 U.S. 180, 188-189 (1984)).
The Court has made clear that a post-indictment interrogation is one
such critical proceeding.  Michigan v. Jackson, 475 U.S. 625, 629-630
(1986);  Brewer v. Williams, 430 U.S. 387, 401 (1977).  Moreover, the
Sixth Amendment right to counsel is applicable without the need for a
request by the defendant.  See Brewer v. Williams, 430 U.S. at 404;
Carnley v. Cochran, 369 U.S. 506, 513 (1962).  For that reason,
petitioner was entitled to the presence of an attorney during the two
post-indictment interrogations unless he validly waived that right.

   To establish that petitioner waived his right to the assistance of
counsel at interrogation, the prosecution was required to prove "'an
intentional relinquishment or abandonment of a known right or
privilege.'" Brewer v. Williams, 430 U.S. at 404 (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)).  That inquiry has two components.
"First, the relinquishment of the right must have been voluntary in
the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception.  Second, the waiver
must have been made with a full awareness both of the nature of the
right being abandoned and the consequences of the decision to abandon
it." Moran v. Burbine, 475 U.S. 412, 421 (1986);  see also Edwards v.
Arizona, 451 U.S. 477, 482 (1981).  /3/

   The first part of the waiver test was plainly satisfied here.
There is no question that by signing the waiver form petitioner
decided to relinquish his right to counsel and that his decision was
voluntary.  Compare Brewer v. Williams, supra (holding that the
defendant had not waived his Sixth Amendment right to counsel because
he did not intentionally relinquish that right).  The sole question in
this case concerns the second part of the waiver test:  whether
petitioner was provided with the information he needed to make a
"knowing" waiver of his right to counsel.

 A. The Miranda Warnings Provide All The Information Needed To Make A
Knowing Waiver of the Sixth Amendment Right To Counsel During
Post-Indictment Interrogation

   Before each of the post-indictment interrogations in this case,
petitioner was informed that he had a right to the assistance of
counsel in connection with the interrogation and that if he could not
afford a lawyer one would be appointed for him.  He also was told that
he had a right to remain silent and that anything he said could be
used against him.  J.A. 39-40.  That information was plainly
sufficient to inform petitioner of the nature of his Sixth Amendment
right.  Indeed, the warning constituted a straightforward and accurate
description of the constitutional right itself:  petitioner was told
that he had a right to the assistance of counsel at the interrogation,
which is precisely what this Court has held the Sixth Amendment
provides in the context of post-indictment questioning by the police.

   Petitioner also was aware of the consequences of waiving that
right.  The most direct consequence, of course, was that petitioner
would not have the assistance of counsel during the interrogation.
Although the interrogating officers did not say that in so many words,
it was the obvious and unavoidable consequence of the decision to
decline the assistance of a lawyer.  Petitioner also was told that, if
he declined to obtain the assistance of counsel and answered the
questions posed by the police officer and the prosecutor, his
statements could be used against him.  Petitioner thus knew that by
permitting the interrogation to proceed without the assistance of
counsel, he ran the risk of creating evidence for the prosecution that
could be introduced at his trial.

   Since petitioner was informed of both the nature of his Sixth
Amendment right and the consequences of his decision to abandon that
right, he had all the information he needed to make a knowing waiver
of the Sixth Amendment right.  To paraphrase the Court's conclusion in
a related context, "(i)t is inconceivable that such a warning would
fail to alert (a defendant) to his right to" the assistance of
counsel.  United States v. Washington, 431 U.S. 181, 188 (1977).

   This Court's decisions upholding waivers of the privilege against
compelled self-incrimination under Miranda v. Arizona, 384 U.S. 436
(1966), strongly support the conclusion that informing an individual
of the nature of the right and the consequence of a waiver is all that
is necessary to lay the foundation for a knowing waiver of that right.
 Cf. Michigan v. Jackson, 475 U.S. 625 (1986) (applying Miranda waiver
concepts in Sixth Amendment context).  The Court recently concluded
that "(t)he Miranda warnings protect (the self-incrimination)
privilege by ensuring that a suspect knows that he may choose not to
talk to law enforcement officers, to talk only with counsel present,
or to discontinue talking at any time.  The Miranda warnings ensure
that a waiver of these rights is knowing and intelligent by requiring
that the suspect be fully advised of this constitutional privilege,
including the critical advice that whatever he chooses to say may be
used as evidence against him." Colorado v. Spring, No. 85-1517 (Jan.
27, 1987), slip op. 9;  see also Moran v. Burbine, 475 U.S. at 424.

   All the information required for an effective waiver of the rights
described in the Miranda warnings is conveyed by (1) a statement of
the substance of the rights -- that the suspect has the right to
remain silent and the right to counsel before questioning, and (2) the
warning that anything the suspect says may be used against him.  For
the same reasons, a statement of the substance of the analogous Sixth
Amendment right to the assistance of counsel at interrogation,
together with a warning regarding the consequences of being questioned
without counsel, provides a sufficient foundation for a knowing waiver
of that Sixth Amendment right.  See Brewer v. Williams, 430 U.S. at
436 n.5 (White, J., joined by Blackmun and Rehnquist, JJ., dissenting)
("(t)here is absolutely no reason to require an additional question to
the already cumbersome Miranda litany just because the majority finds
another case -- Massiah v. United States(, 377 U.S. 201 (1964)) --
providing exactly the same right to counsel as that involved in
Miranda.  * * * If an intentional relinquishment of the right to
counsel under Miranda is established by proof that the accused was
informed of his right and then voluntarily answered questions in
counsel's absence, then similar proof establishes an intentional
relinquishment of the Massiah right to counsel").  /4/

 B. Nothing About the Sixth Amendment Right To Counsel At
Interrogation Justifies A Waiver Procedure More Elaborate Than That
Required By This Court's Decision in Miranda

   Petitioner makes two related arguments in support of his position
that the Miranda warnings are not sufficient to support a waiver of
the Sixth Amendment right to counsel at a post-indictment
interrogation.  First, he asserts that the Sixth Amendment right to
counsel is broader and more important than the right to counsel
referred to in the Miranda warnings.  For that reason, he contends, a
waiver of the Sixth Amendment right cannot be found as readily as a
waiver of the right to counsel at issue in Miranda.  Second,
petitioner argues that there are differences in the setting in which
the two rights arise that justify the application of different waiver
principles.  /5/

   1. The waiver test applicable to a particular right cannot be
ascertained by ranking constitutional rights on some subjective scale
of importance and asserting that the proof necessary to establish a
valid waiver necessarily increases as one moves along that scale.
Constitutional rights cannot be ranked as greater and lesser;  they
are simply different.  Cf. Prince v. Massachusetts, 321 U.S. 158, 164
(1944).  Nor has this Court in any way suggested that the proper
content of the waiver standard depends on a judgment as to the
"importance" of a particular right.  For example, the Fourth Amendment
right to security of the home or person is certainly an "important"
right, but that right can be waived by consent to a search without any
advice at all regarding the nature of the right being given up or the
consequences of its waiver.  See Schneckloth v. Bustamonte, 412 U.S.
218 (1973).

   Rather than depending on an assessment of the importance of the
underlying right, the procedures necessary to obtain a "knowing"
waiver turn on the interests protected by the underlying right and the
relative ease or difficulty of comprehending both the right and the
consequences of its surrender.  When a defendant agrees to plead
guilty, for example, he effectively waives a whole complex of rights.
Because of the number of rights involved and the fact that it is not
necessarily obvious that the consequence of a guilty plea is the
forfeiture of those rights, the defendant must be aware of more than
the mere fact that he has a right to enter a plea of not guilty.  The
defendant must be advised or otherwise be shown to understand each of
the rights he is forfeiting by his guilty plea.  See Boykin v.
Alabama, 395 U.S. 238 (1969).

   As we have explained, the Miranda warnings satisfy this test in the
context of pretrial interrogation.  They fully inform a defendant of
the substantive content of the Sixth Amendment right to the assistance
of counsel during interrogation and the consequences of a decision to
waive that right.

   Petitioner attempts (Br. 25) to analogize the waivers at issue here
to a decision to waive the assistance of counsel at trial.  But the
stark contrast in the complexity of the rights at issue explains the
difference in the procedures for waiving counsel at trial and waiving
counsel during pretrial interrogation.  In Faretta v. California, 422
U.S. 806 (1975), this Court held that the Sixth Amendment guarantees a
defendant the right to refuse the assistance of counsel and to choose
instead to represent himself at trial.  The Court stated that "the
accused must 'knowingly and intelligently' forgo (the benefits of
representation by counsel).  Although a defendant need not himself
have the skill and experience of a lawyer in order competently and
intelligently to choose self-representation, he should be made aware
of the dangers and disadvantages of self-representation, so that the
record will establish that 'he knows what he is doing and his choice
is made with eyes open'" (422 U.S. at 835 (citations omitted)).

   The right to the assistance of counsel at trial addressed in
Faretta is the "core" right guaranteed by the Sixth Amendment (see
United States v. Gouveia, 467 U.S. at 188-189).  This case, on the
other hand, concerns partial waivers of a less central component of
the Sixth Amendment right to counsel:  petitioner's waivers were
limited to his right to the assistance of counsel at the
post-indictment interrogations.  Accordingly, a suspect in
petitioner's position need only be informed of the nature of the
limited right to counsel at interrogation and the consequences of
waiving that limited right.  There is no need to provide the suspect
with information about the portion of the right that is not being
waived.

   The differences between the role of counsel at a pretrial
interrogation and counsel's role at the trial itself justify different
conclusions regarding the amount of information needed for a knowing
waiver in these two contexts.  The complex procedural and substantive
rules governing the conduct of a trial -- and the complex
determinations that must be made by an attorney -- are likely to be
quite unfamiliar to a defendant.  For that reason, it may be necessary
to provide a defendant contemplating self-representation at trial with
a considerable amount of information concerning both the nature of the
proceeding and the lawyer's role in representing his client in that
proceeding.  Cf. United States v. Gouveia, 467 U.S. at 188-189
(citation omitted) (accused is "'confronted with both the intricacies
of the law and the advocacy of the public prosecutor'" at trial);
Powell v. Alabama, 287 U.S. 45, 68-69 (1932).

   Unlike a trial, a pretrial interrogation is not governed by complex
procedural or substantive rules.  The basic issue confronting the
suspect is whether to answer the questions or to exercise his
privilege against self-incrimination.  Counsel's role in that context
is generally just to advise his client whether he should speak with
the authorities or not, and to shield his client from possible
overreaching by the police.  Our legal system assumes that, armed with
the information provided by the Miranda warnings, the suspect has the
capacity to decide whether to seek the assistance of counsel for those
purposes prior to the commencement of adversary proceedings.  See,
e.g., Colorado v. Spring, slip op. 9.  Nothing about the commencement
of such proceedings undercuts that assumption.  Accordingly, no
additional information is required to acquaint the suspect with the
nature of the right to counsel in the pretrial interrogation context.

   2. The virtual identity between the substantive protection
conferred by the right to the presence of counsel under Miranda and
the Sixth Amendment right to the assistance of counsel at
interrogation, as well as the similarity in the interests implicated
in the two contexts, strongly support the conclusion that the same
information should suffice to establish a knowing waiver of the two
rights.

   The Fifth Amendment privilege against compelled self-incrimination
does not expressly encompass a right to the assistance of counsel.
Rather, the privilege "is only that the witness not be compelled to
give self-incriminating testimony.  The test is whether, considering
the totality of the circumstances, the free will of the witness was
overborne" (United States v. Washington, 431 U.S. at 188 (emphasis in
original)).  In most contexts, the failure to assert the privilege
constitutes an effective waiver;  no prior warnings are required.
United States v. Mandujano, 425 U.S. 564, 574-575 (1976) (plurality
opinion).  When an individual is subjected to custodial interrogation,
however, this Court's decision in Miranda v. Arizona, supra, requires
police officers to follow "procedural safeguards" designed to combat
the pressures of custodial interrogation and "permit a full
opportunity to exercise the privilege against self-incrimination." 384
U.S. at 444-445, 467;  see also Moran v. Burbine, 475 U.S. at 420;
Michigan v. Tucker, 417 U.S. 433, 444 (1974).  Accordingly, "(p)rior
to any questioning, the person must be warned that he has a right to
remain silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an attorney,
either retained or appointed" (Miranda, 384 U.S. at 444-445).  The
right to the presence of an attorney set forth in the warning is, of
course, limited to the context of custodial interrogation.  /6/

   The Sixth Amendment right to counsel is, of course, grounded in the
language of the Amendment itself.  /7/ The right to counsel "means
more than simply that the State cannot prevent the accused from
obtaining the assistance of counsel.  (It) also imposes on the State
an affirmative obligation to respect and preserve the accused's choice
to seek this assistance.  * * * (A)t the very least, the prosecutor
and the police have an affirmative obligation not to act in a manner
that circumvents and thereby dilutes the protection afforded by the
right to counsel" (Maine v. Moulton, 474 U.S. 159, 171 (1985)).  Thus,
in addition to providing a defendant with a right to the presence of
counsel at particular proceedings, the Sixth Amendment bars the police
from using investigative techniques that result in the circumvention
of the right to counsel.  See Maine v. Moulton, supra (electronic
surveillance of the defendant's conversations with third parties);
United States v. Henry, 447 U.S. 264 (1980) (use of cellmate to
surreptitiously monitor the defendant's conversations);  Massiah v.
United States, supra.

   There is no difference in the substantive content of these two
guarantees as they apply to the situation presented in this case -- a
non-surreptitious post-indictment interrogation of a suspect in police
custody, where the suspect has not asserted a right to counsel and the
suspect's attorney has not attempted to communicate with him.  Both
Miranda and the Sixth Amendment grant the suspect a right to the
presence of counsel at the interrogation;  if that right is violated,
the suspect's statements may not be admitted at trial.  In view of the
complete congruence between the two rights, the same information
should suffice to establish a knowing waiver of both rights.  /8/

   Nor should the procedures leading to a waiver under Miranda or the
Sixth Amendment differ because of a difference in the balance of
interests between the government and the suspect under the Fifth and
Sixth Amendments.  The Court has described the decision in Miranda as
striking a balance between "society's legitimate law enforcement
interests and the protection of the defendant's Fifth Amendment
rights" (Moran v. Burbine, 475 U.S. at 424).  On one side of the
balance, the Court has recognized that custodial interrogation brings
significant pressures to bear on an individual to give up his right to
remain silent.  In light of those pressures, the Court established a
right to counsel under Miranda in order to "assure that the
individual's right to choose between silence and speech remains
unfettered throughout the interrogation process" (Miranda, 384 U.S. at
469).  The Court noted that the presence of an attorney would reduce
the likelihood that the police would engage in coercion and "help to
guarantee that the accused gives a fully accurate statement to the
police and that the statement is rightly reported by the prosecution."
Id. at 470;  see also Fare v. Michael C., 442 U.S. 707, 719 (1979).
Moreover, the Court observed that the warnings and the right to the
presence of counsel grounded in the privilege against compelled
self-incrimination serves to protect a defendant's rights at trial:
"(w)ithout the protections flowing from adequate warnings and the
rights of counsel, 'all the careful safeguards erected around the
giving of testimony, whether by an accused or any other witness, would
become empty formalities in a procedure where the most compelling
possible evidence of guilt, a confession, would have already been
obtained at the unsupervised pleasure of the police'" (Miranda, 384
U.S. at 466 (citations omitted)).

   On the other side of the balance, the Court has recognized that
"'the need for police questioning as a tool for effective enforcement
of criminal laws' cannot be doubted.  Admissions of guilt are more
than merely 'desirable';  they are essential to society's compelling
interest in finding, convicting, and punishing those who violate the
law." Moran v. Burbine, 475 U.S. at 426 (citations omitted);  see also
Schneckloth v. Bustamonte, 412 U.S. at 225;  Haynes v. Washington, 373
U.S. 503, 515 (1963);  Culombe v. Connecticut, 367 U.S. 568, 571, 576,
578-580 (1961) (opinion of Frankfurter, J.).  For that reason, the
Court has refused to prohibit custodial interrogation, and it has
permitted interrogation following a waiver of the right to have
counsel present during questioning, upon a showing that the suspect
was informed of the right and voluntarily relinquished it.  See
Miranda, 384 U.S. at 475-476, 479.

   The waiver of the Sixth Amendment right to the assistance of
counsel at interrogation implicates similar competing interests and
therefore does not require a different waiver procedure.  On the
government's side of the balance, the interest is the same:  the
government's interest in obtaining evidence of crime does not abate
upon the commencement of adversary proceedings against an individual;
it continues through the preparation for trial.  /9/

   On the individual's side of the balance, the interests protected by
the Sixth Amendment counsel guarantee in the context of police
interrogations are virtually identical to the interests protected by
Miranda.  Indeed, the Court has described the purposes of the right in
terms identical to those used in Miranda, stating that "(i)n Massiah
counsel could have advised his client on the benefits of the Fifth
Amendment and could have sheltered him from the overreaching of the
prosecution." United States v. Ash, 413 U.S. at 312 (citing both
Massiah and Miranda).  Furthermore, like Miranda, the Sixth Amendment
right to counsel is intended to prevent pretrial encounters between a
defendant and the police from effectively nullifying the protections
afforded to the accused at trial.  See Maine v. Moulton, 474 U.S. at
170;  see also Schneckloth v. Bustamonte, 412 U.S. at 239-240.  Since
the interests of the individual protected by the two rights are the
same, it is logical to conclude that knowledge of the same set of
facts permits a suspect to waive both of the rights.

   In seeking to distinguish pre-indictment and post-indictment
interrogation, petitioner points out (Br. 16-18 (citation omitted))
that after the filing of an indictment, the "'adverse positions of
government and defendant have solidified,'" and the defendant is
"'faced with the prosecutorial forces of organized society.'" From
that, he contends that the imposition of a more stringent waiver
standard is appropriate in such a setting.  But the considerations
cited by petitioner merely explain why the Sixth Amendment right
attaches at the time of indictment.  It is those factors that justify
the imposition of some warning requirement rather than no warning at
all;  those factors do not provide any justification for a heightened
warning requirement, especially in light of the similar purposes
served by the Miranda and Sixth Amendment guarantees in this context.

   In any event, with respect to the relative positions of the
individual and the interrogator, it is unclear what, if anything,
turns on the "solidified" positions of the government and the
defendant.  An interrogator, whether before indictment or afterwards,
has a single interest -- to obtain information.  The defendant may
have a variety of interests ranging from persuading the interrogator
of his innocence, improving his position through apparent or actual
cooperation, helping (or perhaps hurting) his cohorts, or simply
experiencing the relief of confession.  Most, if not all, of those
interests are the same whether the interrogation occurs before or
after indictment.  /10/

   Petitioner also suggests (Br. 19-20) that the Sixth Amendment
waiver standard should differ from the Miranda test because a
suspect's interest in cooperating with the police is reduced after
indictment.  That difference, however, does not suggest that there
should be a difference in the waiver procedure.  The nature of the
right to counsel and the unfavorable consequences of waiver remain the
same before or after indictment.  The fact that after indictment it
may be more likely that the consequences will turn out to be
unfavorable goes to the wisdom of the waiver decision, not to whether
it was knowingly made.  Put another way, the fact that the decision to
make a statement may not be in the suspect's self-interest is not
relevant to the waiver decision, because the purpose of the Sixth
Amendment right is to secure to the defendant the right to
representation, not to encourage him not to speak with the police.  In
any event, there are in fact advantages to be gained from cooperation
with the police even after indictment.  For example, the cooperating
suspect may win the right to plead guilty to a lesser charge as the
result of a decision to cooperate with the police, or he may even be
able to persuade the authorities that they have indicted the wrong
person.

   3. Although petitioner repeatedly asserts (Br. 26-30) that the
prosecution should bear a greater burden when it seeks to establish a
waiver of Sixth Amendment rights, he fails to specify the contours of
the additional burden that he proposes.  Petitioner's inability to
define the way in which he would supplement the Miranda waiver
procedures serves only to emphasize the fact that petitioner is unable
to find an interest underlying the Sixth Amendment right to the
assistance of counsel at interrogation that is not fully protected by
the Miranda warnings.

   Petitioner suggests at one point (Br. 30-31 n.1) that "police and
prosecutors might alert the indicted accused to the nature of the
Sixth Amendment right being waived" through additional warnings.  /11/
But, as we have shown, additional warnings are not necessary to inform
a defendant of the nature and consequences of a waiver decision.  The
purpose of such warnings presumably would be to provide a defendant
with "information to help him calibrate his self-interest in deciding
whether to speak or stand by his rights" (Moran v. Burbine, 475 U.S.
at 422).  But nothing in the Sixth Amendment requires the government
to provide a suspect with such information.  And any incremental
protection of the Sixth Amendment privilege "would come at a
substantial cost to society's legitimate and substantial interest in
securing admissions of guilt," because the premise of the additional
warnings is that they would convince a suspect to assert his right to
counsel.  Moran v. Burbine, 475 U.S. at 427.

   Finally, any additional warning requirement would lead to
considerable uncertainty.  The Court repeatedly has cited the benefits
of the bright-line character of the Miranda rules, and it recently
relied upon those benefits in applying one of those rules in the Sixth
Amendment context (see Michigan v. Jackson, 475 U.S. at 634-635).
Holding that the Miranda warnings provide a suspect with the
foundation necessary for a knowing waiver of the Sixth Amendment right
to the assistance of counsel at interrogation would have the advantage
of avoiding confusion regarding the obligations of law enforcement
officers seeking to obtain probative evidence.  /12/

   Petitioner argues (Br. 30-31) that the attachment of Sixth
Amendment rights should be deemed the equivalent of an invocation of
the right to counsel under Miranda.  Under his theory, once the
suspect's Sixth Amendment rights have attached, a police officer would
be barred from approaching the suspect to attempt to obtain
information.  Petitioner's theory, however, is inconsistent with this
Court's analysis in Michigan v. Jackson, supra.  The question in
Jackson was whether the rule of Edwards v. Arizona, 451 U.S. 477
(1981), applies with respect to the Sixth Amendment right to counsel.
Edwards holds that a suspect in custody who has "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" (451 U.S.
at 484-485).  The Court held in Jackson that the Edwards rule applies
to waivers of the Sixth Amendment right to the assistance of counsel
at interrogation:  "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 636).

   If petitioner were correct that the attachment of the Sixth
Amendment right to counsel automatically triggers the Edwards rule,
there would have been no need for this Court to base its decision in
Jackson upon the defendant's request for counsel at his arraignment:
the subsequent waiver would have been invalid even if the defendant
had not previously requested counsel.  Yet nothing in the Court's
decision indicates that the request for counsel was irrelevant or that
the police officers may never approach a defendant after indictment.
See Michigan v. Jackson, 475 U.S. at 640 (Rehnquist, J., dissenting)
(emphasis in original) ("the Court most assuredly does not hold that
the Edwards per se rule prohibiting at all police-initiated
interrogations applies from the moment the defendant's Sixth Amendment
right to counsel attaches, with or without a request for counsel by
the defendant.  * * * Applying the Edwards rule to situations in which
a defendant has not made an explicit request for counsel would * * *
render completely nugatory the extensive discussion of 'waiver' in
such prior Sixth Amendment cases as Brewer v. Williams, 430 U.S. 387,
401-406 (1977)").

   In any event, the automatic prohibition upon police questioning
that would be effected by petitioner's proposed rule would represent a
"shockingly dramatic restructuring of the balance this Court has
traditionally struck between the rights of the defendant and those of
the larger society" (Michigan v. Jackson, 475 U.S. at 640 (Rehnquist,
J., dissenting)).  In some cases, such as where a suspect is not
apprehended until after indictment, police officers may have no
opportunity to question the suspect until after his Sixth Amendment
rights have attached.  Petitioner's rule would completely foreclose
law enforcement officers from making even a single attempt to obtain
the suspect's cooperation, thus placing off limits what might be the
single most valuable source of evidence available.  Nothing in the
Sixth Amendment or practical experience suggests that such an extreme
measure is needed to protect defendants against the risk that they may
improvidently waive their right to counsel.  /13/

                              CONCLUSION

   The judgment of the Supreme Court of Illinois should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   ANDREW J. PINCUS

      Assistant to the Solicitor General

   JANUARY 1988

   /1/ Petitioner's co-defendant David Thomas was also convicted of
murder;  Juan McCune pleaded guilty before trial to the charge of
concealment of a death.  J.A. 36.

   /2/ The court also rejected petitioner's claim that his statements
were involuntary (J.A. 30-32).

   /3/ Moran concerned a waiver of the rights conferred by this
Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966), but the
Moran Court did not indicate that its description of the waiver
inquiry was limited to that context.  Indeed, the Court relied upon
Johnson and Brewer -- two Sixth Amendment waiver cases -- in
formulating the waiver inquiry.

   /4/ Many courts of appeals have reached the same conclusion.  See
United States v. Brown, 569 F.2d 236, 239 (5th Cir. 1978) (en banc);
United States v. Woods, 613 F.2d 629, 634 (6th Cir.), cert. denied,
446 U.S. 920 (1980);  United States v. Binder, 769 F.2d 595, 599 (9th
Cir. 1985);  see also United States v. Payton, 615 F.2d 922, 924-925
(1st Cir.), cert. denied, 446 U.S. 969 (1980) (Miranda warnings plus
information that the defendant had been indicted);  Murphy v. Holland,
776 F.2d 470, 481-482 (4th Cir. 1985) (reserving question);  Robinson
v. Percy, 738 F.2d 214, 222 (7th Cir. 1984) (case-by-case approach).
Only the Second Circuit has taken a contrary view.  See United States
v. Mohabir, 624 F.2d 1140 (1980) (adopting stringent waiver
requirement).

   /5/ Contrary to petitioner's apparent belief (Br. 9), no rule of
constitutional law mandates the formulation of a different waiver
requirement for every constitutional right.  Constitutional guarantees
may overlap, with the result that a particular right is protected by
two separate provisions of the Constitution.  See, e.g., Widmar v.
Vincent, 454 U.S. 263, 269 n.6 (1981) (government interference with
religious speech implicates Free Speech Clause as well as the Free
Exercise Clause).  Nothing renders the Miranda warnings inherently
unsuitable as the means for supplying a suspect with the information
necessary for an effective waiver of the Sixth Amendment right to the
assistance of counsel at a post-indictment interrogation.  The Miranda
warnings are not by their terms limited to the Fifth Amendment
context;  the portion of the warnings relating to the assistance of
counsel at interrogation refers simply to a "right to counsel."

   /6/ That right is not triggered by the initiation of the
interrogation.  Michigan v. Mosley, 423 U.S. 96, 104 n.10 (1975);  see
also Moran v. Burbine, 475 U.S. at 433 n.4.  However, any statement
will be inadmissible at trial unless the suspect waives his right to
counsel before giving the statement.  See Miranda v. Arizona, 384 U.S.
at 479.  As applied to custodial interrogation, the right is therefore
indistinguishable in effect from the Sixth Amendment right to counsel.

   /7/ The Sixth Amendment provides in pertinent part that "(i)n all
criminal prosecutions, the accused shall enjoy the right to * * * have
the Assistance of Counsel for his defence."

   /8/ There would be a difference in both analysis and result under
the two constitutional standards if the facts in a particular case
implicated the aspect of the Sixth Amendment guarantee that bars
government circumvention of the attorney-client relationship.  For
example, a suspect may effectively waive his Miranda rights even if
the police fail to tell him that his attorney has tried to reach him;
a Sixth Amendment waiver, however, would not be valid unless the
police provided the suspect with that information.  See Moran v.
Burbine, 475 U.S. at 424, 428.

   Similarly, conversations initiated by undercover police officers do
not implicate the protections of Miranda because they do not subject
the suspect to custodial interrogation.  But Massiah and its progeny
make clear that such activities do violate the Sixth Amendment,
because the defendant has a right to the assistance of counsel at such
confrontations with the authorities and, by virtue of the
surreptitious nature of the activity, the defendant could not be found
to have waived that right.  See United States v. Henry, 447 U.S. at
273.

   /9/ One court of appeals has suggested that the government's
interest in obtaining such evidence is reduced because "any
questioning of the defendant by the government can only be 'for the
purpose of buttressing * * * a prima facie case'" (United States v.
Mohabir, 624 F.2d 1140, 1148 (2d Cir. 1980) (citation omitted)).  This
suggestion rests upon an unrealistic view of the criminal justice
process.  While in some instances the government's case is complete at
the time of indictment, there are many instances in which charges must
be brought after probable cause is established but before the
investigation is complete.  Even when the prosecution believes that it
has sufficient evidence to warrant a conviction, the vagaries of the
jury system are such that the prospect of a conviction does not
approach certainty until the government's evidence crosses the line
between a strong case and an overwhelming one.  For that reason, the
investigative process often continues after the commencement of
adversary proceedings as the prosecution seeks to present the
strongest possible case at trial.

   /10/ This point can be illustrated by a situation that arises with
some frequency -- where the police seek to question an individual
about several crimes, some of which have been made the subjects of
formal charges and some of which are still in the investigative stage.
 The respective interests of the individual and the police do not
change when the subject of the questioning changes from a crime on
which the individual has been charged to a crime on which charges have
not yet been brought.

   /11/ One possible addition to the Miranda warnings would be to
advise the defendant in the post-indictment setting that he has been
indicted.  That information was conveyed in this case, for petitioner
was advised that he had been indicted for murder.  Tr. 21.  The court
below relied upon that fact in upholding the validity of the waivers,
stating that the information regarding the indictment made petitioner
"aware of the gravity of his legal situation" (J.A. 30).  Because
petitioner was supplied with that information, this case does not
present the question whether police officers must inform a suspect of
the fact that formal adversary proceedings have commenced and specify
the charges lodged against the suspect in order to obtain a valid
waiver of the Sixth Amendment right to the assistance of counsel at
interrogation.

   As a general matter, a defendant involved in post-indictment
interrogation is usually well aware that he has been indicted;  the
question whether such a warning is constitutionally required
accordingly is not likely to arise with any frequency.  In any event,
we doubt that the Sixth Amendment embodies a special rule requiring
that a suspect be informed of "the gravity of his legal situation" in
order to make an effective waiver of rights;  and any additional
warning requirement may lead to uncertainty as to the scope of the
requirement and may deter the gathering of probative evidence.  See
United States v. Mohabir, 624 F.2d at 1150 (holdinig that informing
the defendant of the fact that he was indicted is not sufficient to
validate a Sixth Amendment waiver;  prosecutor also must explain "the
significance of the indictment").

   /12/ Petitioner also suggests (Br. 30-31 n.1) that consultation
with counsel should be a prerequisite to an effective waiver or that a
defendant should be prohibited from waiving his Sixth Amendment right.
 But such rules would squarely conflict with Faretta, which preserves
the individual's rights to decide for himself whether to seek the
assistance of counsel.  One court of appeals has exercised its
supervisory power to adopt the rule that an effective waiver of the
Sixth Amendment right to counsel may be obtained only if the warnings
are administered by a neutral judicial officer.  See United States v.
Mohabir, 624 F.2d at 1153.  As the court of appeals itself apparently
recognized, nothing in the Sixth Amendment supports the conclusion
that rights associated with pretrial proceedings may be waived only in
a trial-type setting.  We submit that law enforcement officers are
competent to supply suspects with the necessary information.