# Michigan v. Harvey

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## Dissenting Opinion

    Stevens
United States Supreme Court
494 U.S. 344
Michigan v. Harvey
No. 88-512 Argued: Oct. 11, 1989. --- Decided: March 5, 1990
Syllabus
Following respondent Harvey's arraignment on rape charges and the appointment of counsel for him, he told a police officer that he wanted to make a statement, but did not know whether he should talk to his lawyer. Although the record is unclear as to the entire context of the discussion, the officer told Harvey that he did not need to speak with his attorney, because "his lawyer was going to get a copy of the statement anyway." Harvey then signed a constitutional rights waiver form and made a statement detailing his version of the events on the night in question. When his testimony at his state-court bench trial conflicted with his statement to the police, the court allowed the State to use the statement to impeach his testimony. He was convicted of first-degree criminal sexual conduct, but the Michigan Court of Appeals reversed. That court ruled that the statement was inadmissible even for impeachment purposes, because it was taken in violation of Harvey's Sixth Amendment right to counsel, citing Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631. The State concedes that the police transgressed the rule of Jackson, which held that once a defendant invokes his Sixth Amendment right to counsel, any waiver of that right-even if voluntary, knowing, and intelligent under traditional standards-is presumed invalid if given in a police-initiated discussion, and that evidence obtained pursuant to that waiver is inadmissible in the prosecution's case in chief.
Held: A statement to police taken in violation of Jackson may be used to impeach a defendant's testimony. The Jackson rule is based on the identical "prophylactic rule" announced in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, in the context of the Fifth Amendment privilege against self-incrimination during custodial interrogation. Moreover, Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, and subsequent cases have held that voluntary statements taken in violation of Fifth Amendment prophylactic rules, while inadmissible in the prosecution's case in chief, may nevertheless be used to impeach the defendant's conflicting testimony. There is no reason for a different result in a Jackson case. Harvey's argument for distinguishing such cases from Fifth Amendment cases that, because the adversarial process is commenced at the time of a Jackson violation, postarraignment interrogations implicate the constitutional guarantee of the Sixth Amendment itself, whereas prearraignment Fifth Amendment violations relate only to procedural safeguards that are not themselves constitutionally protected rights-is without merit. 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. Cf. Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261. Moreover, Harvey's view would render the Jackson rule wholly unnecessary, because even waivers given during defendant-initiated conversations would be per se involuntary or otherwise invalid, unless counsel were first notified. Harvey's alternative assertion-that the police officer who took his statement affirmatively misled him as to his need for counsel and therefore violated the "core value" of the Sixth Amendment's constitutional guarantee, such that his purported waiver is invalid and the statement may not be used even for impeachment purposes-is also unavailing, since the present record is insufficient to determine whether there was a knowing and voluntary waiver of Sixth Amendment rights. Pp. 348-354.
Reversed and remanded.
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 355.
Timothy A. Baugham, for petitioner.
Robert M. Morgan, Detroit, Mich., for respondent.
Chief Justice REHNQUIST delivered the opinion of the Court.

## 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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