# McNeil v. Wisconsin/Concurrence Kennedy

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* Opinion of the Court
* Concurring Opinion Kennedy
* Dissenting Opinion Stevens
* Wikipedia article
Justice KENNEDY, concurring.
I join the opinion of the Court in all respects. Its sensible recognition that invocation of the Sixth Amendment right to counsel is specific to the offense in question should apply as well to requests for counsel under the Fifth Amendment. See Arizona v. Roberson, 486 U.S. 675, 688, 108 S.Ct. 2093, 2101, 100 L.Ed.2d 704 (1988) (KENNEDY, J., dissenting). For those in custody, Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and its progeny go far to protect an individual who desires the assistance of counsel during interrogation. Limiting the extraordinary protections of Edwards to a particular investigation would not increase the risk of confessions induced by official efforts to wear down the will of a suspect. Having adopted an offense-specific rule for invocation of the Sixth Amendment right to counsel, the Court should devote some attention to bringing its Fifth and Sixth Amendment jurisprudence into a logical alignment, and should give uniform, fair, and workable guidelines for the criminal justice system.
Even if petitioner had invoked his Fifth Amendment right with respect to the West Allis armed robbery, I do not believe the authorities should have been prohibited from questioning him in connection with the Caledonia offenses.
Justice STEVENS, with whom Justice MARSHALL and Justice BLACKMUN join, dissenting.
The Court's opinion demeans the importance of the right to counsel. As a practical matter, the opinion probably will have only a slight impact on current custodial interrogation procedures. As a theoretical matter, the Court's innovative development of an "offense-specific" limitation on the scope of the attorney-client relationship can only generate confusion in the law and undermine the protections that undergird our adversarial system of justice. As a symbolic matter, today's decision is ominous because it reflects a preference for an inquisitorial system that regards the defense lawyer as an impediment rather than a servant to the cause of justice.
* The predicate for the Court's entire analysis is the failure of the defendant at the preliminary hearing to make a "statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police." Ante, at 178. If petitioner in this case had made such a statement indicating that he was invoking his Fifth Amendment right to counsel as well as his Sixth Amendment right to counsel, the entire offense-specific house of cards that the Court has erected today would collapse, pursuant to our holding in Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), that a defendant who invokes the right to counsel for interrogation on one offense may not be reapproached regarding any offense unless counsel is present.
In future preliminary hearings, competent counsel can be expected to make sure that they, or their clients, make a statement on the record that will obviate the consequences of today's holding. That is why I think this decision will have little, if any, practical effect on police practices.
The outcome of this case is determined by the Court's parsimonious "offense-specific" description of the right to counsel guaranteed by the Sixth Amendment. The Court's definition is inconsistent with the high value our prior cases have placed on this right, with the ordinary understanding of the scope of the right, and with the accepted practice of the legal profession.
In Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), we held that the defendant's invocation of his right to the assistance of counsel at arraignment prohibited the police from initiating a postarraignment custodial interrogation without notice to his lawyer. After explaining that our prior cases required us "to give a broad, rather than a narrow, interpretation to a defendant's request for counsel," we squarely rejected "the State's suggestion that respondents' requests for the appointment of counsel should be construed to apply only to representation in formal legal proceedings." Id., at 633, 106 S.Ct., at 1409. Instead, we noted that "it is the State that has the burden of establishing a valid waiver [of the right to counsel]. Doubts must be resolved in favor of protecting the constitutional claim." Ibid. (citation omitted).
Today, however, the Court accepts a narrow, rather than a broad, interpretation of the same right. It accepts the State's suggestion that although, under our prior holding in Michigan v. Jackson, a request for the assistance of counsel at a formal proceeding such as an arraignment constitutes an invocation of the right to counsel at police-initiated custodial interrogation as well, such a request only covers interrogation about the specific charge that has already been filed and for which the formal proceeding was held. Today's approach of construing ambiguous requests for counsel narrowly and presuming a waiver of rights is the opposite of that taken in Jackson.
The Court's holding today moreover rejects the common sense evaluation of the nature of an accused's request for counsel that we expressly endorsed in Jackson:
"We also agree with the comments of the Michigan Supreme Court about the nature of an accused's request for counsel:
" 'Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking; he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge. The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.' 421 Mich., at 63-64, 365 N.W.2d, at 67."
Id., 475 U.S., at 633-634, n. 7, 106 S.Ct., at 1409-1410, n. 7.
The Court explains away this commonsense understanding by stating that although "[t]hose observations were perhaps true in the context of deciding whether a request for the assistance of counsel in defending against a particular charge implied a desire to have that counsel serve as an 'intermediary' for all further interrogation on that charge[, t]hey are assuredly not true in the quite different context of deciding whether such a request implies a desire never to undergo custodial interrogation, about anything, without counsel present." Ante, at 180, n. 1. Even assuming that this explanation by the Court could be supported if the custodial interrogation related to an offense that was entirely separate from the charge for which a suspect had invoked his Sixth Amendment right to counsel, it cannot explain away the commonsense reality that petitioner in this case could not have known that his invocation of his Sixth Amendment right to counsel was restricted to the Milwaukee County offense, given that investigations of the Milwaukee County offense and the Caledonia offense were concurrent and conducted by overlapping personnel.
Finally, the Court's "offense-specific" characterization of the constitutional right to counsel ignores the substance of the attorney-client relationship that the legal profession has developed over the years. The scope of the relationship between an individual accused of crime and his attorney is as broad as the subject matter that might reasonably be encompassed by negotiations for a plea bargain or the contents of a presentence investigation report. Any notion that a constitutional right to counsel is, or should be, narrowly defined by the elements of a pending charge is both unrealistic and invidious. Particularly given the implication that McNeil would be given favorable treatment if he told "his side of the story" as to either or both crimes to the Milwaukee County officers, I find the Court's restricted construal of McNeil's relationship with his appointed attorney at the arraignment on the armed robbery charges to be unsupported.
In any case, the offense-specific limitation on the Sixth Amendment right to counsel can only generate confusion in the law. The parties and the Court have assumed in this case, for the purposes of analyzing the legal issues, that the custodial interrogation of McNeil involved an offense (murder) that was completely unrelated to the pending charge of armed robbery. The Court therefore does not flesh out the precise boundaries of its newly created "offense-specific" limitation on a venerable constitutional right. I trust its boundaries will not be patterned after the Court's double jeopardy jurisprudence, cf. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and I can only wonder how much leeway it will accord the police to file charges selectively in order to preserve opportunities for custodial interrogation, particularly if the Court is so unquestioningly willing to treat the offenses in this case as separate even though the investigations were concurrent and conducted by overlapping personnel. Whatever the future may portend, the Court's new rule can only dim the "bright-line" quality of prior cases such as Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984), and Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986).
In the final analysis, the Court's decision is explained by its fear that making counsel available to persons held in custody would "seriously impede effective law enforcement." Ante, at 180. The magnitude of the Court's alarm is illuminated by its use of italics:
"Thus, if we were to adopt petitioner's rule, most persons in pretrial custody for serious offenses would be unapproachable by police officers suspecting them of involvement in other crimes, even though they have never expressed any unwillingness to be questioned." Ibid.
Of course, the Court is quite wrong and its fears are grossly exaggerated. The fears are exaggerated because, as I have explained, today's holding will probably affect very few cases in the future. The fears are misguided because a contrary rule would not make all pretrial detainees "unapproachable"; it would merely serve to ensure that a suspect's statements during custodial interrogation are truly voluntary.
A contrary rule would also comport with respect to tradition. Undergirding our entire line of cases requiring the police to follow fair procedures when they interrogate presumptively innocent citizens suspected of criminal wrongdoing is the longstanding recognition that an adversarial system of justice can function effectively only when the adversaries communicate with one another through counsel and when laypersons are protected from overreaching by more experienced and skilled professionals. Whenever the Court ignores the importance of fair procedure in this context and describes the societal interest in obtaining "uncoerced confessions" from pretrial detainees as an "unmitigated good," the Court is revealing a preference for an inquisitorial system of justice. As I suggested in Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986):
"This case turns on a proper appraisal of the role of the lawyer in our society. If a lawyer is seen as a nettlesome obstacle to the pursuit of wrongdoers-as in an inquisitorial society-then the Court's decision today makes a good deal of sense. If a lawyer is seen as an aid to the understanding and protection of constitutional rights-as in an accusatorial society-then today's decision makes no sense at all." Id., at 468, 106 S.Ct., at 1165 (STEVENS, J., dissenting).
The Court's refusal to acknowledge any "danger of 'subtle compulsion' " in a case of this kind evidences an inability to recognize the difference between an inquisitorial and an adversarial system of justice. Accordingly, I respectfully dissent.

## Notes

* ↑ After McNeil was first apprehended in Omaha pursuant to the Milwaukee County arrest warrant, Deputy Sheriff Smukowski of Milwaukee County and a colleague from the same department traveled to Omaha for purposes of transporting McNeil back to Wisconsin. Smukowski testified at trial that prior to going to Omaha he had been aware that McNeil was a suspect in the Caledonia murder as well as in the Milwaukee County armed robbery. Tr. 4-5 (Nov. 9, 1987). He further testified that on May 21, 1987, he and his colleague talked to McNeil during the transport back to Wisconsin "about the murder case and the armed robbery," id., at 7, and that they were operating under the understanding that they would take "a statement as to either case" if McNeil would provide one. Id., at 9. Smukowski testified that they urged petitioner to "tell his side of the story" in order that his cooperation might help him later, id., at 8, and that prior to leaving Omaha with petitioner, Smukowski and his colleague used petitioner's help in trying to locate Crowley, another suspect in the Caledonia murder, in Omaha. Id., at 13.
* ↑ In his opinion dissenting for himself and two other members of the Wisconsin Supreme Court, Chief Justice Heffernan wrote:
"It is apparent that there is danger of 'subtle compulsion' when a defendant requests the assistance of an attorney at an initial appearance and is nevertheless subjected to further interrogation while custody continues. Whether a request for an attorney is made to a police officer or to a judge, whether in the jail or during an initial appearance, the dangers of the inherent pressure of custodial interrogation when not having an attorney present are the same. Just as the Edwards [v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981),] protection is not dependant upon the subject matter of the interrogation, neither is this protection dependent upon whether the request for assistance of counsel is made to a police officer while in custody or to a magistrate at an initial appearance before the defendant is interrogated." 155 Wis.2d 24, 50, 454 N.W.2d 742, 752-753 (1990).
See also United States ex rel. Espinoza v. Fairman, 813 F.2d 117 (CA7 1987).
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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