# Michigan v. Harvey/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Stevens
In Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), the Court established a prophylactic rule that once a criminal defendant invokes his Sixth Amendment right to counsel, a subsequent waiver of that right-even if voluntary, knowing, and intelligent under traditional standards-is presumed invalid if secured pursuant to police-initiated conversation. We held that statements obtained in violation of that rule may not be admitted as substantive evidence in the prosecution's case in chief. The question presented in this case is whether the prosecution may use a statement taken in violation of the Jackson prophylactic rule to impeach a defendant's false or inconsistent testimony. We hold that it may do so.
Respondent Tyris Lemont Harvey was convicted of two counts of first-degree criminal sexual conduct in connection with the rape of Audrey Sharp on June 11, 1986. Harvey was taken into custody on July 2, 1986, and on that date, he made a statement to an investigating officer. He was arraigned later on July 2, and counsel was appointed for him. More than two months later, Harvey told another police officer that he wanted to make a second statement, but did not know whether he should talk to his lawyer. Although the entire context of the discussion is not clear from the record, the officer told respondent that he did not need to speak with his attorney, because "his lawyer was going to get a copy of the statement anyway." App. 32-33 (stipulation of prosecution). Respondent then signed a constitutional rights waiver form, on which he initialed the portions advising him of his right to remain silent, his right to have a lawyer present before and during questioning, and his right to have a lawyer appointed for him prior to any questioning. App. to Pet. for Cert. 3a-4a. Asked whether he understood his constitutional rights, respondent answered affirmatively. He then gave a statement detailing his version of the events of June 11.
At a bench trial, Sharp testified that Harvey visited her home at 2:30 a.m. on the date in question and asked to use the telephone. After placing a call, Harvey confronted Sharp with a barbecue fork, and a struggle ensued. According to Sharp, respondent struck her in the face, threatened her with the fork and a pair of garden shears, and eventually threw her to the floor of her kitchen. When she ran to the living room to escape, Harvey pursued her with the weapons, demanded that she take off her clothes, and forced her to engage in sexual acts.
Harvey testified in his own defense and presented a conflicting account of the night's events. He claimed that he had gone to Sharp's home at 9 p.m. and invited her to smoke some crack cocaine, which he offered to supply in return for sexual favors. She agreed, but after smoking the cocaine, she refused to perform the favors. When respondent would not leave her house, Sharp allegedly grabbed the barbecue fork and threatened him, triggering a brief fight during which he grabbed the fork and threw it to the floor. The two then moved to the living room, where, according to Harvey, Sharp voluntarily removed her clothes. He testified, however, that the two never engaged in sexual intercourse and that he left shortly thereafter.
On cross-examination, the prosecutor used Harvey's second statement to the police to impeach his testimony. Before doing so, the prosecutor stipulated that the statement "was not subject to proper Miranda," App. 32, and therefore could not have been used in the case in chief. But because the statement was voluntary, the prosecutor argued that it could be used for impeachment under our decision in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Defense counsel did not object, App. 34; App. to Pet. for Cert. 5a, and the trial court permitted the questioning. The prosecutor then impeached certain of Harvey's statements, including his claim that he had thrown the barbecue fork to the floor, by showing that he had omitted that information from his statement to the police. App. 36-45. The trial judge believed the victim's testimony and found respondent guilty as charged.
The Michigan Court of Appeals reversed the conviction. The court noted that if the second statement had been taken only in violation of the rules announced in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it could have been used to impeach Harvey's testimony. It held, however, that the statement was inadmissible even for impeachment purposes, because it was taken "in violation of defendant's Sixth Amendment right to counsel. See e.g., Michigan v. Jackson, 475 US 625 [106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) ]." App. to Pet. for Cert. 6a-7a. Because the trial "involved a credibility contest between defendant and the victim," the court concluded that the impeachment was not harmless beyond a reasonable doubt. Id., at 7a. The Michigan Supreme Court denied leave to appeal, three justices dissenting, and we granted certiorari. 489 U.S. 1010, 109 S.Ct. 1117, 103 L.Ed.2d 180 (1989). We now reverse.
To understand this case, it is necessary first to review briefly the Court's jurisprudence surrounding the Sixth Amendment. The text of the 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." The essence of this right, we recognized in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), is the opportunity for a defendant to consult with an attorney and to have him investigate the case and prepare a defense for trial. Id., at 58, 71, 53 S.Ct., at 60, 65. More recently, in a line of cases beginning with Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and extending through Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), the Court has held that once formal criminal proceedings begin, the Sixth Amendment renders inadmissible in the prosecution's case in chief statements "deliberately elicited" from a defendant without an express waiver of the right to counsel. See also United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). For the fruits of postindictment interrogations to be admissible in a prosecution's case in chief, the State must prove a voluntary, knowing, and intelligent relinquishment of the Sixth Amendment right to counsel. Patterson v. Illinois, 487 U.S. 285, 292, and n. 4, 108 S.Ct. 2389, 2394-2395, and n. 4, 101 L.Ed.2d 261 (1988); Brewer, supra, 430 U.S., at 404, 97 S.Ct., at 1242. We have recently held that when a suspect waives his right to counsel after receiving warnings equivalent to those prescribed by Miranda v. Arizona, supra, that will generally suffice to establish a knowing and intelligent waiver of the Sixth Amendment right to counsel for purposes of postindictment questioning. Patterson v. Illinois, supra.
In Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), the Court created a bright-line rule for deciding whether an accused who has "asserted" his Sixth Amendment right to counsel has subsequently waived that right. Transposing the reasoning of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), which had announced an identical "prophylactic rule" in the Fifth Amendment context, see Solem v. Stumes, 465 U.S. 638, 644, 104 S.Ct. 1338, 1342, 79 L.Ed.2d 579 (1984), we decided that after a defendant requests assistance of counsel, any waiver of Sixth Amendment rights given in a discussion initiated by police is presumed invalid, and evidence obtained pursuant to such a waiver is inadmissible in the prosecution's case in chief. Jackson, supra, 475 U.S., at 636, 106 S.Ct., at 1411. Thus, to help guarantee that waivers are truly voluntary, Jackson established a presumption which renders invalid some waivers that would be considered voluntary, knowing, and intelligent under the traditional case-by-case inquiry called for by Brewer v. Williams.
There is no dispute in this case that respondent had a Sixth Amendment right to counsel at the time he gave the statement at issue. The State further concedes that the police transgressed the Jackson rule, because the colloquy between respondent and the investigating officer "cannot be viewed as defendant-initiated interrogation." Tr. of Oral Arg. 52. The question, then, is whether a statement to police taken in violation of Jackson can be admitted to impeach a defendant's inconsistent trial testimony.
Michigan v. Jackson is based on the Sixth Amendment, but its roots lie in this Court's decisions in Miranda v. Ari- zona, supra, and succeeding cases. Miranda, of course, required police interrogators to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments and set forth a now-familiar set of suggested instructions for that purpose. Although recognizing that the Miranda rules would result in the exclusion of some voluntary and reliable statements, the Court imposed these "prophylactic standards" on the States, see Michigan v. Tucker, 417 U.S. 433, 446, 94 S.Ct. 2357, 2364-65, 41 L.Ed.2d 182 (1974), to safeguard the Fifth Amendment privilege against self-incrimination. Edwards v. Arizona added a second layer of protection to the Miranda rules, holding that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." 451 U.S., at 484, 101 S.Ct., at 1885. Edwards thus established another prophylactic rule designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights. See Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983) (plurality opinion).
Jackson simply superimposed the Fifth Amendment analysis of Edwards onto the Sixth Amendment. Reasoning that "the Sixth Amendment right to counsel at a postarraignment interrogation requires at least as much protection as the Fifth Amendment right to counsel at any custodial interrogation," Jackson, supra, 475 U.S., at 632, 106 S.Ct., at 1408-09, the Court in Jackson concluded that the Edwards protections should apply when a suspect charged with a crime requests counsel outside the context of interrogation. This rule, like Edwards, is based on the supposition that suspects who assert their right to counsel are unlikely to waive that right voluntarily in subsequent interrogations.
We have already decided that although statements taken in violation of only the prophylactic Miranda rules may not be used in the prosecution's case in chief, they are admissible to impeach conflicting testimony by the defendant. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). The prosecution must not be allowed to build its case against a criminal defendant with evidence acquired in contravention of constitutional guarantees and their corresponding judicially created protections. But use of statements so obtained for impeachment purposes is a different matter. If a defendant exercises his right to testify on his own behalf, he assumes a reciprocal "obligation to speak truthfully and accurately," Harris, supra, 401 U.S., at 225, 91 S.Ct., at 645, and we have consistently rejected arguments that would allow a defendant to " 'turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.' " Id., at 224, 91 S.Ct., at 645 (quoting Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954)). See also Hass, supra, 420 U.S., at 722, 95 S.Ct., at 1220-21; United States v. Havens, 446 U.S. 620, 626, 100 S.Ct. 1912, 1916, 64 L.Ed.2d 559 (1980).
There is no reason for a different result in a Jackson case, where the prophylactic rule is designed to ensure voluntary, knowing, and intelligent waivers of the Sixth Amendment right to counsel rather than the Fifth Amendment privilege against self-incrimination or "right to counsel." We have mandated the exclusion of reliable and probative evidence for all purposes only when it is derived from involuntary statements. New Jersey v. Portash, 440 U.S. 450, 459, 99 S.Ct. 1292, 1297, 59 L.Ed.2d 501 (1979) (compelled incriminating statements inadmissible for impeachment purposes); Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (same). We have never prevented use by the prosecution of relevant voluntary statements by a defendant, particularly when the violations alleged by a defendant relate only to procedural safeguards that are "not themselves rights protected by the Constitution," Tucker, supra, 417 U.S., at 444, 94 S.Ct., at 2364 (Miranda rules), but are instead measures designed to ensure that constitutional rights are protected. In such cases, we have decided that the "search for truth in a criminal case" outweighs the "speculative possibility" that exclusion of evidence might deter future violations of rules not compelled directly by the Constitution in the first place. Hass, supra, 420 U.S., at 722-723, 95 S.Ct., at 1220-21; Havens, supra, 446 U.S., at 627, 100 S.Ct., at 1916-17 (reaffirming Hass ). Hass was decided 15 years ago, and no new information has come to our attention which should lead us to think otherwise now.
Respondent argues that there should be a different exclusionary rule for Jackson violations than for transgressions of Edwards and Miranda. The distinction, he suggests, is that the adversarial process has commenced at the time of a Jackson violation, and the postarraignment interrogations thus implicate the constitutional guarantee of the Sixth Amendment itself. But nothing in the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his own, to speak with police in the absence of an attorney. We have already held that a defendant whose Sixth Amendment right to counsel has attached by virtue of an indictment may execute a knowing and intelligent waiver of that right in the course of a police-initiated interrogation. Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988). To be sure, once a defendant obtains or even requests counsel as respondent had here, analysis of the waiver issue changes. But that change is due to the protective rule we created in Jackson based on the apparent inconsistency between a request for counsel and a later voluntary decision to proceed without assistance. See 487 U.S., at 290, n. 3, 108 S.Ct., at 2393, n. 3; cf. Michigan v. Mosley, 423 U.S. 96, 110, n. 2, 96 S.Ct. 321, 329, n. 2, 46 (1975) (WHITE, J., concurring in result).
In other cases, we have explicitly declined to hold that a defendant who has obtained counsel cannot himself waive his right to counsel. See Brewer, 430 U.S., at 405-406, 97 S.Ct., at 1242-1243 ("The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not") (emphasis in original); Estelle v. Smith, 451 U.S. 454, 471-472, n. 16, 101 S.Ct. 1866, 1877, n. 16, 68 L.Ed.2d 359 (1981) ("We do not hold that respondent was precluded from waiving this constitutional right [to coun sel]. . . . No such waiver has been shown, or even alleged, here"). A defendant's right to rely on counsel as a "medium" between the defendant and the State attaches upon the initiation of formal charges, Moulton, 474 U.S., at 176, 106 S.Ct., at 487, and respondent's contention that a defendant cannot execute a valid waiver of the right to counsel without first speaking to an attorney is foreclosed by our decision in Patterson. Moreover, respondent's view would render the prophylactic rule adopted in Jackson wholly unnecessary, because even waivers given during defendant-initiated conversations would be per se involuntary or otherwise invalid, unless counsel were first notified.
Although a defendant may sometimes later regret his decision to speak with police, the Sixth Amendment does not disable a criminal defendant from exercising his free will. To hold that a defendant is inherently incapable of relinquishing his right to counsel once it is invoked would be "to imprison a man in his privileges and call it the Constitution." Adams v. United States ex rel. McCann, 317 U.S. 269, 280, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942). This we decline to do. Both Jackson and Edwards establish prophylactic rules that render some otherwise valid waivers of constitutional rights invalid when they result from police-initiated interrogation, and in neither case should "the shield provided by [the prophylactic rule] be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." Harris, 401 U.S., at 226, 91 S.Ct., at 646.
Respondent and amici assert, alternatively, that the conduct of the police officer who took Harvey's second statement violated the "core value" of the Sixth Amendment's constitutional guarantee, and under those circumstances, the second statement may not be used even for impeachment purposes. They contend that respondent was affirmatively misled as to his need for counsel, and his purported waiver is therefore invalid. But on the record before us, it is not possible to determine whether Harvey's waiver was knowing and voluntary. The state courts developed no record on that issue, and the Michigan Court of Appeals did not rest its holding on any such determination. There was no testimony on this point before the trial court. The only statement in the trial record concerning the issue of waiver is the prosecutor's concession that the second statement was taken in violation of respondent's Miranda rights. But that concession is consistent with the Michigan Court of Appeals' finding that the police violated Jackson, which is, after all, only a Sixth Amendment analogue to the Miranda and Edwards decisions. The Michigan court made no independent inquiry into whether there had been an otherwise valid waiver of the right to counsel, and respondent's counsel himself conceded that, putting aside the prosecutor's concession, the record is insufficient to determine whether there was a voluntary waiver of Sixth Amendment rights. Tr. of Oral Arg. 31-32. In short, the issue was never litigated in this case.
Because respondent's counsel did not object at trial to the use of his second statement for impeachment purposes, the State had no occasion to offer evidence to establish that Harvey gave a knowing and voluntary waiver of his right to counsel under traditional standards. On remand, the Michigan courts are free to conduct a hearing on that question. It is the State's burden to show that a waiver is knowing and voluntary, Brewer v. Williams, supra, 430 U.S., at 404, 97 S.Ct., at 1242, and if all the circumstances in a particular case show that the police have engaged in a course of conduct which would render the waiver involuntary, the burden will not be satisfied. Those facts are not before us, however, and we need not consider the admissibility for impeachment purposes of a voluntary statement obtained in the absence of a knowing and voluntary waiver of the right to counsel.
The judgment of the Michigan Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice STEVENS, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join, dissenting.

## Notes

* ↑ Harvey declined to initial portions of the waiver form explaining that anything he said could be used against him in court, and that he could decide at any time to exercise his rights and not answer any questions or make any statement. App. to Pet. for Cert. 4a.
* ↑ Respondent also told police that another man and woman had been present in Sharp's house on the night of the incident and that he thought the man's name was "Michael." At trial, however, respondent said that he did not know the man's name. App. 36-37. Respondent further testified that "Michael" had brought some cocaine to Sharp's home, but his statement to police only mentioned cocaine that respondent had provided. Id., at 39.
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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