New 14-Day Rule in Miranda-Edwards Cases
The Supreme Court heard a very important argument this week in the case of Maryland v. Shatzer. It was one of those situations where the oral argument makes a huge difference in the outcome of the case. We read the briefs earlier this month, and remarked to colleagues that both sides’ arguments seemed eminently reasonable. So reasonable that we couldn’t form a strong opinion either way.
But the oral arguments convinced us thoroughly: Both sides are stupid.
While Shatzer was in prison on another conviction, allegations arose that he’d molested his son. A detective went to the prison to interrogate him. Shatzer invoked his Miranda right to counsel, and the detective ended the interrogation and left. Shatzer went back into general population, and the investigation was closed. Three years later, another detective began investigating again, went to the prison to interrogate Shatzer, and this time Shatzer waived his Miranda rights and incriminated himself. The Maryland Court of Appeals said his statements should have been suppressed, because there was no break in custody between his invocation of his right to counsel and his subsequent interrogation, because he’d stayed in prison the whole time.
At oral argument, Maryland proposed an idiotic rule that any break in custody, no matter how short, would end the Edwards presumption that the invoked rights were still invoked. That would just allow catch-and-release until the suspect broke down and waived his rights.
Shatzer’s position was even more idiotic — that invoking the right to counsel in one case now, counts as an invocation of the right to counsel in all future cases he may ever have, even in other jurisdictions decades later.
We suggested a simple rule:
1) If a suspect was in custody, was read his Miranda rights, and invoked his Fifth Amendment right to have a lawyer present during questioning…
2) And if there was a break in custody, so that an objectively reasonable person would have felt free to leave his questioners…
3) Then there is a rebuttable presumption that his invoked right to counsel continues to be invoked with respect to any subsequent questioning about the same underlying allegations.
4) The state can rebut this presumption with facts that demonstrate, by clear and convincing evidence, that the suspect no longer desired the presence of counsel during questioning. (This will necessarily be extremely rare, though not at all inconceivable.)
The rule could be streamlined even further, by deleting the phrase “there is a rebuttable presumption that” from #3, and deleting #4 altogether.
This rule provides all the protections that defendants, law enforcement and the courts require. At the same time, it avoids the absurdities of the existing bright-line rule, and of the more extreme bright-line rules proposed by the parties in this case
In today’s decision, the Supreme Court agreed with us that the positions taken by both sides are absurd. But they didn’t impose a new rule. Instead, they merely focused on what counts as “uninterrupted Miranda custody” for the purposes of Edwards.
First, the Court imposed a bright-line rule, in the hopes of preventing catch-and-release tactics. They said that, once a person has been released from police custody, a period of 14 days must elapse before he can be said to have waived his Miranda rights voluntarily. So if a suspect invokes his rights, ending the interrogation, and he is released from custody, he cannot be interrogated again for 14 days. Once that fortnight has passed, the Court felt that enough time had passed for the suspect to shake off the coercive effects of custody and get back to normal life.
That’s a bright-line rule, and so that’s going to create injustices on either side of the line for suspects who are more or less able to shake off the coercive effects of custody. Which can be truly traumatizing.
The Court has always liked bright-line rules for police conduct, of course, because it leaves less room for police judgment or discretion, which makes it easier for the police to know what they’re allowed to do. The thinking goes that the less gray area there is, the less likely police will be to cross the line, and the more likely individuals will not have their rights violated. That may be true so far as it goes, but only at the cost of new injustice for those whose individual circumstances would move the line. What’s reasonable for me may not be reasonable for you.
Scalia tries to avoid this interpretation by reassuring us that Edwards only creates a presumption about the voluntariness of the waiver — “a defendant is still free to claim the prophylactic protection of Miranda [by] arguing that his waiver . . . was in fact involuntary.” But that’s buried in footnote 7. We doubt that this is going to be picked up on by every suppression judge out there.
Even so, we’re still not terribly happy with the bright-line rule here. It seems highly arbitrary. Scalia, who wrote the opinion, does remind us that “the Edwards rule is not a constitutional mandate, but a judicially-prescribed prophylaxis. . . . a judicially crafted rule is justified only by reference to its prophylactic purpose. . . .” and then went on to say that some arbitrary term limit is needed to prevent the Edwards rule from being either meaninglessly brief or absurdly eternal.
And his reasoning is nothing if not arbitrary. All he says is “we think it appropriate to specify a period of time to avoid the consequence that continuation of the Edwards presumption will not reach the correct result most of the time. It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.”
What basis does he have for that feeling? None. They wanted a bright-line rule, instead of a reasonableness rule, and bright-line rules are by their very nature arbitrary. We guess we should appreciate that Scalia didn’t insult us by trying to force some statistics into supporting his gut feeling. At least he’s being straight with us.
On the issue of whether Shatzer was ever released from custody in the first place, this was a novel issue for the Court. (Well, they’ve been asked to decide it a couple of times before, but they chose not to address the issue.)
Ordinarily, Miranda custody is when “there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” That’s certainly the case when the suspect is already in prison.
But Scalia steps back to look at the policy underlying the Miranda rule in the first place. The whole point of the Fifth Amendment protections here is to ensure that the government does not override the free will of the individual. No Star Chamber. The government has the power to hurt you, or to punish you, or to increase your punishment. Using that awesome power to force you to convict yourself out of your own mouth, against your own will, is anathema to American jurisprudence.
He doesn’t say it as clearly as that, but that’s what he’s getting at. He says that a sentenced prisoner has a ground state of control over his life, and once he’s returned to that ground state, released from the control of his interrogators, he’s released from custody. Makes sense. Also, the interrogator can’t make his punishment or incarceration any worse.
So the concerns we have with Miranda custody don’t exist with a person who was already in prison for something else, and is released back to his normal incarceration. “The inherently compelling pressures of custodial interrogation ended when he returned to his normal life.”
On that point, we can’t help but agree.
We’ll just note here that yesterday, the Court decided another Miranda case, Florida v. Powell. That one’s fairly limited and commonsensical. Tampa police Miranda warnings stated that “you have the right to talk to a lawyer before answering any of our questions,” and “you have the right to use any of these rights at any time you want during this interview.” The Florida Supreme Court thought that was misleading, because it didn’t explicitly state that you have the right to have a lawyer present during questioning. But the U.S. Supreme Court said that there’s really no other interpretation of the two statements. If you can consult with a lawyer before answering any question, and if you can exercise that right at any point in the questioning, that pretty much means you have the right to have a lawyer present the whole time.
Yes, the warnings were artlessly composed, but they actually give more information than the basic one. They say you’re entitled, not just to have a lawyer there, but also to talk to him before answering any question. Hard to say that it violated anyone’s rights.