It Seems Oh, So Simple: Invoking the Right to Counsel

Kit Kinports (Pennsylvania State University, Penn State Law) has posted What Does Edwards Ban?: Interrogating, Badgering, or Initiating Contact? (Northern Kentucky Law Review, Forthcoming) on SSRN.

Here is the abstract:

The suspects who receive the most protection from Miranda today are the minority who actually assert their rights, particularly those who invoke the right to counsel. Michigan v. Mosley requires the police to “scrupulously honor” the rights of suspects who wish to remain silent, and the Edwards v. Arizona line of cases provides even greater safeguards to those who ask for a lawyer. Precisely what bars Edwards erects has been the subject of some controversy, however, as the Supreme Court for many years fluctuated between describing Edwards as simply prohibiting the police from interrogating suspects and taking the broader view that Edwards prevents law enforcement officials from even approaching suspects in ways that do not qualify as “interrogation” for purposes of Miranda.

Unsurprisingly, the mixed signals coming from the Supreme Court generated a division among the lower courts, a conflict that was seemingly resolved in favor of the broader interpretation by the Court’s 2010 opinion in Maryland v. Shatzer. In dictum in Shatzer, the majority took the position that Edwards bars not just interrogation, but also “subsequent attempts” at interrogation, “requests for interrogation,” and “any efforts to get [the suspect] to change his mind.” Despite Shatzer, however, the lower courts continue to be divided.

This contribution to a symposium honoring the fiftieth anniversary of Miranda discusses the post-Shatzer record on the scope of Edwards, criticizing the courts that have ignored Shatzer’s straightforward language and continue to limit Edwards to circumstances where police conduct rose to the level of “interrogation.” In defending the broader interpretation of the Edwards prohibition, the Article concludes that Shatzer’s conception of Edwards’ reach is more faithful to the Court’s opinion in Edwards itself as well as to the policy considerations underlying the Edwards line of cases. The Article therefore advocates that cases involving post-invocation confessions be analyzed by asking which party reinitiated the conversation, applying the same standard of initiation to both the suspect and the police. Under this approach, comments made by a suspect that would be considered initiation and thereby would remove her from the Edwards shield would likewise be treated as initiation when made by law enforcement officials and thus would invalidate the suspect’s subsequent waiver of Miranda.

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