E-Newsletter Edition: December 18, 2007
Response Provided By: Brian S. Batterton
Always note that state law may be more restrictive on police power than the U.S. Constitution.
Will a break in custody after a suspect has asserted his right to counsel under Miranda (5th Amendment) allow an officer to re-initiate questioning with the suspect In spite of the rule set forth in Edwards v. Arizona, which states that once a suspect has invoked his right to counsel under the Fifth Amendment, the police may not re-initiate questioning with the suspect?
A break in custody after the suspect has asserted his 5th Amendment request for counsel (under Miranda) will allow the police to re-initiate questioning of the suspect. [This is the case in the Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits.]
A case which illustrates the above rule is the United States v. Harris.i In this case, Harris, a pastor, set fire to his church in order to reunite his parishioners under a common goal of repairing the church. Over the course of a few years, local and federal officers investigated the arson. Harris was called and voluntarily went to the sheriff’s department for a polygraph. On February 4th, he was given a polygraph form and a Miranda waiver of rights form which he voluntarily signed. Harris failed the polygraph and was questioned regarding his inconsistencies. He told the investigators “I have something for you, but not today. I want to see a lawyer.” Harris was allowed to leave and he went home. About three hours later, an investigator telephoned Harris at home and asked him if he would come in for another interview the following day. Harris agreed and came in for an interview without a lawyer on February 5th. He was not “in custody” and, therefore, he was not given his Miranda warnings. He confessed, and his motion to suppress his statements was denied. He was subsequently convicted of arson related charges and he appealed to the Eighth Circuit Court of Appeals.
The issue before the court was whether Harris’ previous statement that he wanted to talk to his lawyer barred further police initiated questioning under the rule set forth in Edwards v. Arizona.ii As a reminder, in Edwards, the police questioned Edwards, who was in jail, regarding a murder. He invoked his right to counsel during questioning and the police ceased the interview. The next day, detectives returned to the jail and a detention officer told Edwards that he “had to” speak to the detectives. Edwards then made incriminating statements. The United States Supreme Court held that a suspect who has requested an attorney may not be subjected to further interrogation until counsel has been made available to the suspect, unless the suspect initiates further communication with the police.
In Harris, however, the Eighth Circuit held that the break in custody between his request for an attorney and his confession defeats the protection that is offered by Edwards v. Arizona.iii The Eighth Circuit reasoned that, in dictum in McNeil v. Wisconsin, the United States Supreme Court suggested that a break in custody defeats Edwards’protection.iv Specifically, the Supreme Court stated “If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary.”v This leaves open the possibility that, even if a suspect asserted his right to counsel, if there were a break in custody, the police would be allowed to re-initiate contact with a suspect. The Eighth Circuit noted that six other circuits have followed this rationale and specifically limit Edwards’ protection to those suspects that have remained in continuouscustody from the time they request an attorney to the time they are re-interrogated.vi
The Eighth Circuit specifically discussed the United States v. Skinner, where a suspect being interviewed, but who was not under arrest, requested to end the interview because he wanted to speak to his attorney.vii Skinner was allowed to leave the station; however, the next morning the police arrested him. Skinner signed a Miranda waiver and confessed. The Ninth Circuit considered that Skinner was allowed to leave the station and he did so. They reasoned that, during his break in custody, even though he was not actually “in custody”, he had an opportunity to contact an attorney. Thus, the court held that this “Skinner break” defeated the Edwards rule against re-interrogation after a suspect asserts his right to counsel.viii
The Eighth Circuit then held that Harris’ break “in custody” defeated any protection offered by Edwards and it was permissible for the police to reinitiate questioning.
It is important to note that the above cases and rules all deal with a suspect’s Fifth Amendment right against self incrimination as governed by Miranda. The above rules do not apply to a suspect under his or her Sixth Amendmentright to counsel. The Sixth Amendment right to counsel attaches to a suspect after the initiation of adversarial criminal proceedings such as a preliminary hearing, arraignment, information or indictment.ix The Sixth Amendment right to counsel is also “offense specific.” This means that this right to counsel only applies to the specific offense for which the suspect has been formally charged. In contrast, a suspect’s Fifth Amendment rights (Miranda) are not offense specific and apply to any crime under investigation as long as the suspect remains in custody. Lastly, the Sixth Amendmentright to counsel, once it attaches, applies whether or not the suspect is in custody. Thus, a break in custody will not defeat a suspect’s Sixth Amendment right to counsel.
The best way to determine if a suspect’s Sixth Amendment right to counsel has attached is to determine which stage in the criminal prosecution process the suspect is in. If the suspect is not yet formally charged and/or is under investigation, the Fifth Amendment applies. If a suspect has been arrested under a warrant and is taken to the station for an interview, the Fifth Amendment applies. However, after the suspect appears in court and is formally charged by the court (first appearance, arraignment, etc…) or is indicted by a grand jury, the Sixth Amendment right to counsel attaches for those specific charges.
Further questions on this topic can be addressed to patc.com or to your local prosecutor or legal advisor. Further, states can be more restrictive in the interpretation of their state constitutions, thus the above rules may differ.
i 221 F.3d 1048 (8th Cir. 2000)
ii 451 U.S. 477 (1981)
iii 221 F.3d at 1051
iv 501 U.S. 171 (1991)
v Id.at 177
vi 221 F.3d at 1052 (citing McFadden v. Garraghty, 820 F.2d 654 (4th Cir. 1987); United States v. Barlow, 41 F.3d 935 (5th Cir. 1994); United States ex rel. Espinoza v. Fairman, 813 F.2d 117 (7th Cir. 1994) overruled on other grounds; United States v. LaGrone, 43 F.3d 332 (7th Cir. 1994); United States v. Skinner, 667 F.2d 1306 (9th Cir. 1982); United States v. Geittmann, 733 F.2d 1419 (10th Cir. 1984); and Dunkins v. Thigpen, 854 F.2d 394 (11th Cir. 1988)).
vii 221 F.3d at 1052 (citing 667 F.2d at 1309)
ix United States v. Gouveia, 467 U.S. 180 (1984)