# Minnick v. Mississippi/Dissent Scalia

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* Opinion of the Court
* Dissenting Opinion Scalia
Justice SCALIA, with whom THE CHIEF JUSTICE joins, dissenting.
The Court today establishes an irrebuttable presumption that a criminal suspect, after invoking his Miranda right to counsel, can never validly waive that right during any police-initiated encounter, even after the suspect has been provided multiple Miranda warnings and has actually consulted his attorney. This holding builds on foundations already established in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), but "the rule of Edwards is our rule, not a constitutional command; and it is our obligation to justify its expansion." Arizona v. Roberson, 486 U.S. 675, 688, 108 S.Ct. 2093, 2101-2102, 100 L.Ed.2d 704 (1988) (KENNEDY, J., dissenting). Because I see no justification for applying the Edwards irrebuttable presumption when a criminal suspect has actually consulted with his attorney, I respectfully dissent. I
Some recapitulation of pertinent facts is in order, given the Court's contention that "[t]he case before us well illustrates the pressures, and abuses, that may be concomitants of custody." Ante, at 153. It is undisputed that the FBI agents who first interviewed Minnick on Saturday, August 23, 1986, advised him of his Miranda rights before any questioning began. Although he refused to sign a waiver form, he agreed to talk to the agents, and described his escape from prison in Mississippi and the ensuing events. When he came to what happened at the trailer, however, Minnick hesitated. The FBI agents then reminded him that he did not have to answer questions without a lawyer present. Minnick indicated that he would finish his account on Monday, when he had a lawyer, and the FBI agents terminated the interview forthwith.
Minnick was then provided with an attorney, with whom he consulted several times over the weekend. As Minnick testified at a subsequent suppression hearing:
"I talked to [my attorney] two different times and-it might have been three different times. . . . He told me that first day that he was my lawyer and that he was appointed to me and to not to talk to nobody and not tell nobody nothing and to not sign no waivers and not sign no extradition papers or sign anything and that he was going to get a court order to have any of the police-I advised him of the FBI talking to me and he advised me not to tell anybody anything that he was going to get a court order drawn up to restrict anybody talking to me outside of the San Diego Police Department." App. 46-47.
On Monday morning, Minnick was interviewed by Deputy Sheriff J.C. Denham, who had come to San Diego from Mississippi. Before the interview, Denham reminded Minnick of his Miranda rights. Minnick again refused to sign a waiver form, but he did talk with Denham and did not ask for his attorney. As Minnick recalled at the hearing, he and Denham
"went through several different conversations about-first, about how everybody was back in the county jail and what everybody was doing, had he heard from Mama and had he went and talked to Mama and had he seen my brother, Tracy, and several different other questions pertaining to such things as that. And, we went off into how the escape went down at the county jail. . . ." App. 50.
Minnick then proceeded to describe his participation in the double murder at the trailer.
Minnick was later extradited and tried for murder in Mississippi. Before trial, he moved to suppress the statements he had given the FBI agents and Denham in the San Diego jail. The trial court granted the motion with respect to the statements made to the FBI agents, but ordered a hearing on the admissibility of the statements made to Denham. After receiving testimony from both Minnick and Denham, the court concluded that Minnick's confession had been "freely and voluntarily given from the evidence beyond a reasonable doubt," id., at 25, and allowed Denham to describe Minnick's confession to the jury.
The Court today reverses the trial court's conclusion. It holds that, because Minnick had asked for counsel during the interview with the FBI agents, he could not-as a matter of law validly waive the right to have counsel present during the conversation initiated by Denham. That Minnick's original request to see an attorney had been honored, that Minnick had consulted with his attorney on several occasions, and that the attorney had specifically warned Minnick not to speak to the authorities, are irrelevant. That Minnick was familiar with the criminal justice system in general or Miranda warnings in particular (he had previously been convicted of robbery in Mississippi and assault with a deadly weapon in California) is also beside the point. The confession must be suppressed, not because it was "compelled," nor even because it was obtained from an individual who could realistically be assumed to be unaware of his rights, but simply because this Court sees fit to prescribe as a "systemic assuranc[e]," ante, at 155, that a person in custody who has once asked for counsel cannot thereafter be approached by the police unless counsel is present. Of course the Constitution's proscription of compelled testimony does not remotely authorize this incursion upon state practices; and even our recent precedents are not a valid excuse.
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), this Court declared that a criminal suspect has a right to have counsel present during custodial interrogation, as a prophylactic assurance that the "inherently compelling pressures," id., at 467, 86 S.Ct., at 1624, of such interrogation will not violate the Fifth Amendment. But Miranda did not hold that these "inherently compelling pressures" precluded a suspect from waiving his right to have counsel present. On the contrary, the opinion recognized that a State could establish that the suspect "knowingly and intelligently waived . . . his right to retained or appointed counsel." Id., at 475, 86 S.Ct., at 1628. For this purpose, the Court expressly adopted the "high standar[d] of proof for the waiver of constitutional rights," ibid., set forth in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
The Zerbst waiver standard, and the means of applying it, are familiar: Waiver is "an intentional relinquishment or abandonment of a known right or privilege," id., at 464, 58 S.Ct., at 1023, and whether such a relinquishment or abandonment has occurred depends "in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused," ibid. We have applied the Zerbst approach in many contexts where a State bears the burden of showing a waiver of constitutional criminal procedural rights. See, e.g., Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975) (right to the assistance of counsel at trial); Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314 (1966) (right to confront adverse witnesses); Adams v. United States ex rel. McCann, 317 U.S. 269, 275-280, 63 S.Ct. 236, 240-242, 87 L.Ed. 268 (1942) (right to trial by jury).
Notwithstanding our acknowledgment that Miranda rights are "not themselves rights protected by the Constitution but . . . instead measures to insure that the right against compulsory self-incrimination [is] protected," Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2364, 41 L.Ed.2d 182 (1974), we have adhered to the principle that nothing less than the Zerbst standard for the waiver of constitutional rights applies to the waiver of Miranda rights. Until Edwards, however, we refrained from imposing on the States a higher standard for the waiver of Miranda rights. For example, in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), we rejected a proposed irrebuttable presumption that a criminal suspect, after invoking the Miranda right to remain silent, could not validly waive the right during any subsequent questioning by the police. In North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), we rejected a proposed rule that waivers of Miranda rights must be deemed involuntary absent an explicit assertion of waiver by the suspect. And in Fare v. Michael C., 442 U.S. 707, 723-727, 99 S.Ct. 2560, 2570-2573, 61 L.Ed.2d 197 (1979), we declined to hold that waivers of Miranda rights by juveniles are per se involuntary.
Edwards, however, broke with this approach, holding that a defendant's waiver of his Miranda right to counsel, made in the course of a police-initiated encounter after he had requested counsel but before counsel had been provided, was per se involuntary. The case stands as a solitary exception to our waiver jurisprudence. It does, to be sure, have the desirable consequences described in today's opinion. In the narrow context in which it applies, it provides 100% assurance against confessions that are "the result of coercive pressures," ante, at 151; it " 'prevent[s] police from badgering a defendant,' " ante, at ---- (quoting Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 1180, 108 L.Ed.2d 293 (1990)); it "conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness," ante, at 151; and it provides " ' "clear and unequivocal" guidelines to the law enforcement profession,' " ibid. (quoting Arizona v. Roberson, 486 U.S., at 682, 108 S.Ct., at 2098). But so would a rule that simply excludes all confessions by all persons in police custody. The value of any prophylactic rule (assuming the authority to adopt a prophylactic rule) must be assessed not only on the basis of what is gained, but also on the basis of what is lost. In all other contexts we have thought the above-described consequences of abandoning Zerbst outweighed by " 'the need for police questioning as a tool for effective enforcement of criminal laws,' " Moran v. Burbine, 475 U.S. 412, 426, 106 S.Ct. 1135, 1143, 89 L.Ed.2d 410 (1986). "Admissions of guilt," we have said, "are more than merely 'desirable'; they are essential to society's compelling interest in finding, convicting, and punishing those who violate the law." Ibid. (citation omitted).
In this case, of course, we have not been called upon to reconsider Edwards, but simply to determine whether its irrebuttable presumption should continue after a suspect has actually consulted with his attorney. Whatever justifications might support Edwards are even less convincing in this context.
Most of the Court's discussion of Edwards-which stresses repeatedly, in various formulations, the case's emphasis upon the "right 'to have counsel present during custodial interrogation,' " ante, at 152, quoting 451 U.S., at 482, 101 S.Ct., at 1883 (emphasis added by the Court)-is beside the point. The existence and the importance of the Miranda-created right "to have counsel present" are unquestioned here. What is questioned is why a State should not be given the opportunity to prove (under Zerbst ) that the right was voluntarily waived by a suspect who, after having been read his Miranda rights twice and having consulted with counsel at least twice, chose to speak to a police officer (and to admit his involvement in two murders) without counsel present.
Edwards did not assert the principle that no waiver of the Miranda right "to have counsel present" is possible. It simply adopted the presumption that no waiver is voluntary in certain circumstances, and the issue before us today is how broadly those circumstances are to be defined. They should not, in my view, extend beyond the circumstances present in Edwards itself-where the suspect in custody asked to consult an attorney and was interrogated before that attorney had ever been provided. In those circumstances, the Edwards rule rests upon an assumption similar to that of Miranda itself: that when a suspect in police custody is first questioned he is likely to be ignorant of his rights and to feel isolated in a hostile environment. This likelihood is thought to justify special protection against unknowing or coerced waiver of rights. After a suspect has seen his request for an attorney honored, however, and has actually spoken with that attorney, the probabilities change. The suspect then knows that he has an advocate on his side, and that the police will permit him to consult that advocate. He almost certainly also has a heightened awareness (above what the Miranda warning itself will provide) of his right to remain silent-since at the earliest opportunity "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances." Watts v. Indiana, 338 U.S. 49, 59, 69 S.Ct. 1347, 1358, 93 L.Ed. 1801 (1949) (opinion of Jackson, J.).
Under these circumstances, an irrebuttable presumption that any police-prompted confession is the result of ignorance of rights, or of coercion, has no genuine basis in fact. After the first consultation, therefore, the Edwards exclusionary rule should cease to apply. Does this mean, as the Court implies, that the police will thereafter have license to "badger" the suspect? Only if all one means by "badger" is asking, without such insistence or frequency as would constitute coercion, whether he would like to reconsider his decision not to confess. Nothing in the Constitution (the only basis for our intervention here) prohibits such inquiry, which may often produce the desirable result of a voluntary confession. If and when post consultation police inquiry becomes so protracted or threatening as to constitute coercion, the Zerbst standard will afford the needed protection.
One should not underestimate the extent to which the Court's expansion of Edwards constricts law enforcement. Today's ruling, that the invocation of a right to counsel permanently prevents a police-initiated waiver, makes it largely impossible for the police to urge a prisoner who has initially declined to confess to change his mind-or indeed, even to ask whether he has changed his mind. Many persons in custody will invoke the Miranda right to counsel during the first interrogation, so that the permanent prohibition will attach at once. Those who do not do so will almost certainly request or obtain counsel at arraignment. We have held that a general request for counsel, after the Sixth Amendment right has attached, also triggers the Edwards prohibition of police-solicited confessions, see Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), and I presume that the perpetuality of prohibition announced in today's opinion applies in that context as well. "Perpetuality" is not too strong a term, since, although the Court rejects one logical moment at which the Edwards presumption might end, it suggests no alternative. In this case Minnick was reapproached by the police three days after he requested counsel, but the result would presumably be the same if it had been three months, or three years, or even three decades. This perpetual irrebuttable presumption will apply, I might add, not merely to interrogations involving the original crime, but to those involving other subjects as well. See Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).
Besides repeating the uncontroverted proposition that the suspect has a "right to have counsel present," the Court stresses the clarity and simplicity that are achieved by today's holding. Clear and simple rules are desirable, but only in pursuance of authority that we possess. We are authorized by the Fifth Amendment to exclude confessions that are "compelled," which we have interpreted to include confessions that the police obtain from a suspect in custody without a knowing and voluntary waiver of his right to remain silent. Undoubtedly some bright-line rules can be adopted to implement that principle, marking out the situations in which knowledge or voluntariness cannot possibly be established-for example, a rule excluding confessions obtained after five hours of continuous interrogation. But a rule excluding all confessions that follow upon even the slightest police inquiry cannot conceivably be justified on this basis. It does not rest upon a reasonable prediction that all such confessions, or even most such confessions, will be unaccompanied by a knowing and voluntary waiver.
It can be argued that the same is true of the category of confessions excluded by the Edwards rule itself. I think that is so, but, as I have discussed above, the presumption of involuntariness is at least more plausible for that category. There is, in any event, a clear and rational line between that category and the present one, and I see nothing to be said for expanding upon a past mistake. Drawing a distinction between police-initiated inquiry before consultation with counsel and police-initiated inquiry after consultation with counsel is assuredly more reasonable than other distinctions Edwards has already led us into-such as the distinction between police-initiated inquiry after assertion of the Miranda right to remain silent, and police-initiated inquiry after assertion of the Miranda right to counsel, see Kamisar, The Edwards and Bradshaw Cases: The Court Giveth and the Court Taketh Away, in 5 The Supreme Court: Trends and Developments 153, 157 (J. Choper, Y. Kamisar, & L. Tribe eds. 1984) ("[E]ither Mosley was wrongly decided or Edwards was"); or the distinction between what is needed to prove waiver of the Miranda right to have counsel present and what is needed to prove waiver of rights found in the Constitution.
The rest of the Court's arguments can be answered briefly. The suggestion that it will either be impossible or ethically impermissible to determine whether a "consultation" between the suspect and his attorney has occurred is alarmist. Since, as I have described above, the main purpose of the consultation requirement is to eliminate the suspect's feeling of isolation and to assure him the presence of legal assistance, any discussion between him and an attorney whom he asks to contact, or who is provided to him, in connection with his arrest, will suffice. The precise content of the discussion is irrelevant.
As for the "irony" that "the suspect whose counsel is prompt would lose the protection of Edwards, while the one whose counsel is dilatory would not," ante, at 155: There seems to me no irony in applying a special protection only when it is needed. The Edwards rule is premised on an (already tenuous) assumption about the suspect's psychological state, and when the event of consultation renders that assumption invalid the rule should no longer apply. One searching for ironies in the state of our law should consider, first, the irony created by Edwards itself: The suspect in custody who says categorically "I do not wish to discuss this matter" can be asked to change his mind; but if he should say, more tentatively, "I do not think I should discuss this matter without my attorney present" he can no longer be approached. To that there is added, by today's decision, the irony that it will be far harder for the State to establish a knowing and voluntary waiver of Fifth Amendment rights by a prisoner who has already consulted with counsel than by a newly arrested suspect.
Finally, the Court's concern that "Edwards' protection could pass in and out of existence multiple times," ante, at 154, does not apply to the resolution of the matter I have proposed. Edwards would cease to apply, permanently, once consultation with counsel has occurred.
Today's extension of the Edwards prohibition is the latest stage of prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement. This newest tower, according to the Court, is needed to avoid "inconsisten[cy] with [the] purpose" of Edwards' prophylactic rule, ante, at 154, which was needed to protect Miranda's prophylactic right to have counsel present, which was needed to protect the right against compelled self-incrimination found (at last!) in the Constitution.
It seems obvious to me that, even in Edwards itself but surely in today's decision, we have gone far beyond any genuine concern about suspects who do not know their right to remain silent, or who have been coerced to abandon it. Both holdings are explicable, in my view, only as an effort to protect suspects against what is regarded as their own folly. The sharp-witted criminal would know better than to confess; why should the dull-witted suffer for his lack of mental endowment? Providing him an attorney at every stage where he might be induced or persuaded (though not coerced) to incriminate himself will even the odds. Apart from the fact that this protective enterprise is beyond our authority under the Fifth Amendment or any other provision of the Constitution, it is unwise. The procedural protections of the Constitution protect the guilty as well as the innocent, but it is not their objective to set the guilty free. That some clever criminals may employ those protections to their advantage is poor reason to allow criminals who have not done so to escape justice.
Thus, even if I were to concede that an honest confession is a foolish mistake, I would welcome rather than reject it; a rule that foolish mistakes do not count would leave most offenders not only unconvicted but undetected. More fundamentally, however, it is wrong, and subtly corrosive of our criminal justice system, to regard an honest confession as a "mistake." While every person is entitled to stand silent, it is more virtuous for the wrongdoer to admit his offense and accept the punishment he deserves. Not only for society, but for the wrongdoer himself, "admissio[n] of guilt . . ., if not coerced, [is] inherently desirable," United States v. Washington, 431 U.S. 181, 187, 97 S.Ct. 1814, 1818, 52 L.Ed.2d 238 (1977), because it advances the goals of both "justice and rehabilitation," Michigan v. Tucker, 417 U.S., at 448, n. 23, 94 S.Ct., at 2366, n. 23 (emphasis added). A confession is rightly regarded by the Sentencing Guidelines as warranting a reduction of sentence, because it "demonstrates a recognition and affirmative acceptance of personal responsibility for . . . criminal conduct," U.S. Sentencing Commission, Guidelines Manual § 3E1.1 (1988), which is the beginning of reform. We should, then, rejoice at an honest confession, rather than pity the "poor fool" who has made it; and we should regret the attempted retraction of that good act, rather than seek to facilitate and encourage it. To design our laws on premises contrary to these is to abandon belief in either personal responsibility or the moral claim of just government to obedience. Cf. Caplan, Questioning Miranda, 38 Vand.L.Rev. 1417, 1471-1473 (1985). Today's decision is misguided, it seems to me, in so readily exchanging, for marginal, super-Zerbst protection against genuinely compelled testimony, investigators' ability to urge, or even ask, a person in custody to do what is right.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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