MARYLAND v. SHATZER: STAMPING A FOURTEEN-DAY EXPIRATION DATE ON MIRANDA RIGHTS
Hannah Misner [FNa1]
Copyright © 2010 by the Denver University Law Review, University of
Denver (Colorado Seminary) Sturm
College of Law; Hannah Misner
Over forty years ago, the United States Supreme Court established a suspect's
right to be informed of his rights to counsel and silence in
Miranda v. Arizona. [FN1] Today,Miranda rights inundate American televi- sions, movie screens, and perceptions
of criminal justice. [FN2] In its controversial decision, the
Miranda Court used the Self-Incrimination Clause of the Fifth Amendment as the
foundation for rights of the accused. [FN3] Although
Miranda has been a part of American culture since the decision was handed down
in 1966, the Court is still fine-tuning the application of
Miranda rights. [FN4] Most recently, the Court held in
Maryland v. Shatzer [FN5] that a suspect's invocation of the right to counsel is only powerful
enough to prevent further questioning by law enforcement for fourteen
days after the suspect's release from custody. [FN6]
This Comment explores the flaws, inconsistencies, and impact of the
Shatzer fourteen-day rule. Overall, the
Shatzer Court lost sight of the prophylactic ideas of
Miranda in its quest for an easy standard—jeopardizing not only the accused's
right to counsel but also his right to remain silent. Furthermore, even
though these constitu- tional rights are more valuable to suspects today
than they were at the time
Miranda was decided, the
Shatzer fourteen-day rule continues the Court's pattern of gradually deteriorating
Part I of this Comment briefly describes the Court's development and
Miranda rights, high- lighting the topics most altered by
Shatzer. Part II summarizes the facts, procedural history, and opinions of
Shatzer. Part III asserts four propositions: (1)
Shatzer continues the Court's retreat from the prophylactic prin- ciples ofMiranda, further compromising the right to remain silent and the right to counsel;
(2) the Court's re- treat wrongly abandoned prophylactic measures
in favor of efficiency; (3) the Court's fourteen-day rule com- promises
Miranda rights at a time when those rights are increasingly valuable and
*290 decisive to his case; and, (4) the Court's focus on the
Edwards rule, instead of
Miranda rights, makes it easier for the Court to continue to curtail the rights
of the accused. This Comment concludes thatShatzer was wrongly decided, and that the decision will have a detrimental effect
on the fair administration of criminal justice in America.
Miranda's landmark ruling in 1966, the only way for a defendant to attack
the prosecution's use of his confession made before indictment or
the filing of charges was by bringing a due process claim. [FN7] A de-
fendant cannot rely on the Sixth Amendment to challenge confessions made
during initial interrogations because the right to counsel—guaranteed
by the Sixth Amendment—attaches only when prosecution formally com-
mences, “whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment.” [FN8] Although constitutional challenges
under the Due Process Clause remained available to defendants, the prophylactic
measures established by the
Miranda Court provided additional protections to ensure that a sus- pect's
constitutional rights were fully honored.
However, because the rights guaranteed by
Miranda were not explicitly found in the text of the Constitution, [FN9] its holding
has been subject to several challenges—resulting in numerous exceptions to the
Miranda hold- ing. Although the Court has kept
Miranda's mandate alive, its pattern of fashioning exceptions to
Miranda's ap- plication has slowly deteriorated the rights that it previously
found indispensible to suspects in custodial inter- rogation.
A. Traditional Constitutional Challenges to the Admissibility of Statements
The Self-Incrimination Clause of the Fifth Amendment provides that “[n]o
person ... shall be compelled in any criminal case to be a witness against
himself.” [FN10] Prior to 1966, the United States Supreme Court
inter- preted this right literally to mean that a criminal defendant cannot
be compelled to testify in his own criminal proceeding. [FN11] Therefore, the
*291 Self-Incrimination Clause cannot single-handedly protect suspects from
police coercion during interrogations outside of any criminal proceedings
or prevent the admission of any evid- ence obtained from such coercion
at trial. [FN12] Similarly, the Fifth Amendment could not provide suspects
with counsel during interrogation because the Sixth Amendment alone governed
the right to counsel. [FN13]
In the mid-twentieth century, the Court became increasingly concerned about
coerced confessions obtained through dishonest and threatening police
interrogations. [FN14] Although the bare text of the Self-Incrimination
Clause did not encompass police tactics prior to trial, the Court sought
to condemn and prevent involuntary con- fessions [FN15] by looking to
the Due Process Clause of the Fifth and Fourteenth Amendments. [FN16]
Unlike voluntary confessions, coerced confessions offend due process by
forcing an individual to incriminate himself, thereby preventing him from
attaining a fair trial. [FN17] Framing the issue around due process, the
Court estab- lished a totality of the circumstances inquiry to determine
the voluntariness of a confession in
Johnson v. Zerbst. [FN18] This analysis evaluated whether a confession was truly voluntary
by determining “whether the defend- ant's will was overborne
at the time he confessed.” [FN19]
While the due process approach afforded defendants broader rights than
the Self-Incrimination Clause, the Due Process Clause had its own set
of limitations. [FN20] Notably, it did not affirmatively protect suspects
from coercion, but only afforded defendants the opportunity to challenge
any involuntary statements at trial. [FN21] Furthermore, because interrogations
*292 were often conducted secretly, defendants would struggle to prove the use
of coercive interrogation tactics in court over the contradictory testimony
of law enforcement officers. [FN22] As a result, only extremely visible
instances of police brutality and deceit were found to violate due pro-
cess. [FN23] Due to concerns about more subtle and sophisticated police
tactics that made coercion often diffi- cult to ascertain, the Court sought
additional protections for suspects in custodial interrogation. [FN24]
B. Additional Safeguards to the Right against Self-Incrimination: Miranda v. Arizona
In an “unprecedented stretch of the language of the Self-Incrimination
Miranda Court imposed an affirmative obligation on law enforcement to prevent the
occurrence of involuntary statements. [FN25] In
Miranda, Ernesto Miranda was accused of kidnapping and rape. [FN26] Miranda was
taken into custody and questioned without first being advised that he
had a right to have an attorney present. [FN27] After being inter- rogated,
Miranda eventually confessed. [FN28] At trial, the State presented evidence
of Miranda's confession over his objection. [FN29]
In considering whether Miranda's confession was properly admitted at
trial, the Supreme Court addressed “the necessity for procedures
which assure that [an] individual is accorded his privilege under the
Fifth Amend- ment to the Constitution not to be compelled to incriminate
himself.” [FN30] To set the stage for its landmark holding, theMiranda Court depicted the nature and setting of in-custody interrogations, focusing
on recent stud- ies and case law revealing police brutality during such
questioning.*293[FN31] The Court was especially con- cerned with incriminating statements
made by defendants who faced more subtle police tactics and “inherently
compelling pressures” [FN32] of custodial interrogation that were
not egregious enough to warrant protections under the Due Process Clause.
Thus, the Court returned to the Self-Incrimination Clause of the Fifth
Amend- ment in order to provide a more effective set of protections to
defendants in these circumstances. [FN33]
Although the Fifth Amendment does not provide a textual right to counsel, the
Miranda Court considered the right necessary to secure the explicit privilege in
the Self-Incrimination Clause to remain silent. [FN34] Pur- suant to the
Fifth Amendment, the right to remain silent was an established principle
at the time of
Miranda. [FN35] The
Miranda Court—aiming to ensure that a suspect's choice to communicate
with the police was volun- tary throughout the interrogation process—reasoned
that the presence of an attorney would make a suspect more confident and
able to remain silent if desired. [FN36] The Court found that in order
to give meaning to a sus- pect's right to silence, “the compulsion
inherent in custodial interrogation [had] to be diffused by warning the
suspect not only of his right to silence, but of his right to an attorney”
as well. [FN37] For this reason, the Court held that the right to counsel,
though not a textual right in itself, was an indispensable companion to
the funda- mental right to remain silent. [FN38]
C. Effects of Miranda
Miranda's mandate was clear: prior to any questioning, the authorities must
warn a suspect that he has the right to remain silent and the right to
an attorney. [FN39] The Court made equally clear that any questioning
must automatically cease once a suspect invokes his right to remain silent.
[FN40] Similarly, when a suspect in- vokes his right to counsel, the interrogation
cannot continue until counsel is present. [FN41] If a suspect cannot obtain*294 an attorney on his own, law enforcement must either accept his decision
to remain silent or provide him with counsel. [FN42]
Adherence to these rules has become a prerequisite for the admissibility
of any statement made by a defend- ant at his criminal trial. [FN43] The
Miranda holding “drastically overhauled the law of police interrogations”
[FN44] by imposing a “positive obligation on police to advise suspects
of a given litany of rights before any cus- todial interrogation could
begin.” [FN45] Accordingly, most of
Miranda's critics attack the decision for med- dling with law enforcement
procedures, [FN46] asserting that it prevents the admission of voluntary
confessions in criminal trials. [FN47] Specifically, extending the application of
Miranda rights may deter police from trying to obtain voluntary confessions, which
are “essential to society's compelling interest in finding,
convicting, and punishing those who violate the law.” [FN48] Although
a suspect may waive his
Miranda rights, the government
has the heavy burden of demonstrating that the defendant knowingly and
intelligently waived his privilege. [FN49] The Court openly acknowledged
that it imposed a heavy burden on the government, but averred that be-
cause the government is in a position of authority throughout the interrogation
process, that “burden is rightly on its shoulders.” [FN50]
Furthermore, the American criminal justice system places the burden of
proof wholly on the government for every element of a crime, including
proof of the voluntariness of any confession offered as evidence. [FN51]
D. A “Second Layer of Prophylaxis”: Edwards v. Arizona [FN52]
Fifteen years after
Miranda, the Court buttressed the accused's right to counsel in
Edwards v. Arizona by clarifying that a custodial interrogation cannot be resumed until the
protections articulated in
Miranda have been provided. [FN53] In
Edwards, the defendant was charged with robbery, burglary, and first-degree murder.
[FN54] Pursuant to an arrest warrant, Edwards was detained and interrogated
by law enforcement officials after
*295 being properly informed of his
Miranda rights. [FN55] Questioning quickly ceased after Edwards denied involvement
in the crimes and requested to speak with an attorney. [FN56] However,
when officers visited Ed- wards at the county jail the next morning, the
jail's guard told Edwards that he “had to” speak with
them. [FN57] As a result, Edwards spoke to officers and implicated himself
in the crimes, even after officers again informed him of his
Miranda rights. [FN58]
In its review, the
Edwards Court considered whether the defendant had voluntarily waived his right
to coun- sel by speaking with law enforcement at the second interrogation.
[FN59] Relying heavily on its rationale in
Miranda, the Court held that the waiver was involuntary and that the confession
was inadmissible at trial. [FN60] The Court reasoned that once a suspect
initially invokes his right to counsel, any subsequent waivers of that
right are presumed involuntary because such waivers are likely the result
of police coercion, badgering, or dishonesty. [FN61] Therefore, when Edwards
asserted his right to an attorney on the night of his arrest, the po-
lice were required to honor his desire to communicate with law enforcement
only through counsel for the re- mainder of the investigation. [FN62]
Edwards decision permitted questioning to resume if the suspect initiated the discussion
with law enforcement. [FN63] The Court reasoned that where the accused
initiated the discussion, the risk of any po- lice coercion was minimal
and the presumption of involuntariness no longer applied. [FN64] The Court
found that the effect of a suspect's assertion of his right to counsel
differed from a suspect's invocation of the right to remain silent,
which only temporarily paused the interrogation. [FN65]
Although a seemingly bright-line rule, the Court has since been inundated
with proposed exceptions to the
Edwards application. In nearly all of the challenges to
Edwards, “[T]he Court was concerned with preserving the clear, bright-line
nature of the
Edwards decision.” [FN66] For example,*296 the Court applied the
Edwards rule to interrogations concerned with unrelated offenses, forbidding police
from questioning a suspect if he had asserted his right to counsel during
a prior interrogation for an unrelated offense. [FN67] Additionally, the
Court applied the
Edwards rule when a suspect had the opportunity to consult with counsel, but did
not have counsel present for questioning. [FN68] For about a decade, the
right to counsel was a powerful and effective protection against deceitful
interrogation techniques. Despite several challenges and critiques,
Edwards rendered any po- lice-initiated confessions made after an assertion of
the right to counsel per se involuntary.
E. The Court's Gradual Retreat from Additional Prophylaxes
Edwards secured a suspect's right to counsel, the Court crafted various exceptions
to other aspects of
Miranda's application in the decades following the advent ofMiranda rights.
Davis v. United States [FN69] established a notable limitation on
Miranda's application. In
Davis, the de- fendant was accused of murder and initially waived his
Mirandarights during an interview. [FN70] However, an hour-and-a-half into the
interview, Davis stated that he might want to speak with a lawyer. [FN71]
The defend- ant's interviewers testified that they asked Davis if
he meant that he wanted a lawyer, to which Davis allegedly answered, “No,
I'm not asking for a lawyer.” [FN72] After a short break, the
interview continued for another hour until Davis stated, “I think
I want a lawyer before I say anything else.” [FN73] At trial, Davis
moved to suppress statements made during the interview. [FN74] Specifically,
Davis claimed that his statement, “Maybe I should talk to a lawyer,”
constituted an invocation of his right to counsel, and that based on
Ed- wards, the interrogation should have ceased until that right was fully honored. [FN75]
In its review, the
Davis Court considered how law enforcement officers should respond when a suspect
makes a reference to counsel that is insufficiently clear to invoke theEdwards prohibition on further question- ing. [FN76] Stressing the need for effective
law enforcement, the Court held that interrogations may continue unless
a suspect clearly and unequivocally*297 requests an attorney. [FN77] This caveat that a request for coun- sel must
be unambiguous introduced an element of uncertainty to theEdwards rule and limited its reach. [FN78] Paradoxically, the Court highlighted
the importance of
Miranda rights, [FN79] while making the invocation of those rights difficult.
Other notable exceptions to
Miranda provided loopholes for admitting statements obtained without advising a
suspect of his rights, as required by
Michigan v. Tucker, [FN80] the Court held that the exclusion of the “fruits” of a
Miranda violation—the statement of a witness whose identity the defendant
revealed while in custody—was not required. [FN81] Additionally,
the Court ruled in
Oregon v. Haas [FN82] that voluntary state- ments obtained without advising a suspect of his
Miranda rights could be used to impeach a defendant at trial. [FN83] In
New York v. Quarles, [FN84] the Court created a “public safety” exception that
freed law enforce- ment from
Mirandarequirements if questioning needed to occur quickly to secure the safety
of the public. [FN85] Despite these exceptions, in
Dickerson v. United States, [FN86] the Court asserted the continued import- ance and survival of
Miranda's core holding when it invalidated an act of Congress meant to overrule
Miranda was itself a “constitutional” holding. [FN87] In its ruling,
the Court rejected the idea that the advisement of
Miranda rights was merely a factor for a court to consider in determining the voluntariness
of a statement. [FN88]
Although the Court has declined to overrule
Miranda, it has begun to limit the application of the
Edwards rule. Prior to its decision in
Maryland v. Shatzer, the Court had only broadly recognized a time limit to the ap- plication of the
Edwards case, noting, in dicta, that
Edwards applied “assuming there has been no break in cus- tody.” [FN89]
The Court would next have to determine what exactly constituted a “break
in custody.” The
*298 answer revealed just how far the Court was willing to extend the prophylactic
measures it instituted in
Miranda and solidified in
II. MARYLAND V. SHATZER
Maryland v. Shatzer, the United States Supreme Court considered whether a suspect's invocation
of his right to an attorney indefinitely shields the suspect from further
questioning until he hires or is provided an at- torney. In
Shatzer, the defendant was re-interrogated for the same charge two-and-a-half
years after he asserted
his right to an attorney concerning that charge. Although the entire Court
agreed that two-and-a-half years was a sufficient time period for the
suspect's invocation ofMiranda/Edwards rights to expire, the majority insisted on pinpointing exactly how long
law enforcement must honor a suspect's request for an attorney. Despite
criticism from two concurring Justices, the majority held that a suspect's
assertion of his right to an attorney guarded the suspect from further
interrogation without an attorney present for only fourteen days.
Shatzer, a detective initially visited the defendant, Michael Shatzer, Sr., in
2003 to question him about al- legations of sexually abusing his own son.
[FN90] At the time, Shatzer was serving a sentence for an unrelated child
sexual-abuse offense at the Maryland Correctional Institution-Hagerstown.
[FN91] When he learned the reasoning behind the detective's visit,
Shatzer declined to speak to the detective without an attorney present.
[FN92] The detective then ended the visit and closed the case. [FN93]
Two-and-a-half years later, the case was re-opened based on additional
evidence obtained from Shatzer's son. [FN94] Investigators visited
Shatzer at the Roxbury Correctional Institute, where Shatzer had been
trans- ferred. [FN95] This time, Shatzer waived his
Miranda rights and consented to a polygraph examination. [FN96] During the interview,
he “admitted to masturbating in front of his son at a distance of
less than three feet.” [FN97] Later, after failing the polygraph,
Shatzer told police that he “didn't force” his son to
perform fellatio on him, thereby admitting that the act had occurred.
[FN98] Following this admission, Shatzer requested an attor- ney and the
detectives ended the interrogation. [FN99]
*299 B. Procedural History
“The State's Attorney for Washington County, Maryland, charged
Shatzer with second-degree sexual of- fense, sexual child abuse, second-degree
assault, and contributing to conditions rendering a child in need of as-
sistance.” [FN100] In response, Shatzer argued that the
Edwards protections rendered his 2006 waiver involun- tary and moved to suppress
his statements from that day. [FN101] Shatzer pled not guilty and waived
his right to a jury trial. [FN102]
The trial court denied Shatzer's motion and found him guilty of sexually
abusing his son. [FN103] The Court reasoned that
Edwards did not apply because the two-and-a-half-year time period separating the
two interroga- tions constituted a sufficient break in custody to allow
his previously asserted
Miranda rights to expire. [FN104] The Court of Appeals of Maryland reversed and
remanded, holding that: (1) the passage of time alone was insuf- ficient to end
Edwards protections; and (2) if a break-incustody exception to
Edwards existed, Shatzer's release back into prison did not constitute such
a “break in custody.” [FN105] The United States Supreme Court
granted certiorari to determine whether, and at what point, “a break
in custody ends the presumption of involuntariness established in
Justice Scalia wrote the opinion of the Court, with Chief Justice Roberts
and Justices Kennedy, Ginsburg, Breyer, Alito, and Sotomayor joining in
the decision. [FN107] The majority's main concern was that without
some time limit on
Edwards's protections, the effect of a suspect's invocation of the right
to counsel would be “eternal,” and therefore an acute burden
on the administration of justice. [FN108] Accordingly, the Court sought
to place an objective, predictable limit on the applicability
of Edwards by employing a cost-benefit analysis of the indefinite protection it provided. [FN109]
According to the Court, the primary benefit of
Edwards was “measured by the number of coerced confes- sions it suppresse[d]
*300 would have been admitted” at trial. [FN110] On the other hand, any
voluntary confessions withheld from evidence constituted a cost paid by
society. [FN111] The Court elaborated on the costs by arguing that because
Edwards protections apply even where a subsequent interrogation concerns a different
crime, [FN112] or is conducted by a different law enforcement agency,
[FN113] a repeat offender may escape conviction because he remains protected
after a single unrelated invocation of his rights. [FN114] The Court concluded
that with no set limitations, the costs of the
Edwards rule outweighed its benefits. [FN115]
In Shatzer's case, the Court found that the two-and-a-half year break
in custody was sufficient to make his subsequent waiver voluntary. [FN116]
However, the Court then questioned whether a period of one year or one
week would have been sufficient. [FN117] The Court held that it would
be impractical to leave these answers unresolved and established a clear-cut
rule that a fourteen-day break in custody was sufficient to end the pre-
sumption of involuntariness established in
Although the fourteen-day limitation appeared with little explanation,
the Court justified the rule in two ways. First, the Court reasoned that
the need for the
Edwardsprotections lessened where a suspect returned to “normal life.”
[FN119] A return to normal life, the Court noted, increased the likelihood
that the suspect would have consulted with friends, family, or an attorney,
and decreased the likelihood that a waiver was the result of badgering
or coercion by law enforcement officers. [FN120] The Court found that
two weeks was a sufficient amount of time to constitute a return to normal
life. [FN121] Second, the Court asserted that a suspect would still be
Johnson v. Zerbst, [FN122] which mandated a totality of the circumstances inquiry into the
voluntariness of a confession. [FN123] While the Court acknowledged that
it was unusual for the Court to set precise limits governing police action,
it asserted its prerogative to clarify its own legal mandate [FN124] and
instituted its fourteen-day rule over the biting criticism of Justice
Thomas [FN125] and Justice Stevens. [FN126]
*301 The Court also considered judicial and law enforcement efficiency in its
determination. [FN127] The
Edwards bright-line rule conserved judicial resources that would otherwise be dedicated
to determining the vol- untariness of a suspect's waiver. [FN128]
By establishing another clear-cut rule, the
Shatzer Court was able to maintain efficiency while restricting
Edwards's application. [FN129] The Court strengthened its holding by identifying
those hardships on law enforcement that the fourteen-day rule would alleviate,
increasing the ad- missibility of voluntary confessions. [FN130] Specifically,
the Court reasoned that police investigations are more effective if officers
“know, with certainty and beforehand, when renewed interrogation
is lawful.” [FN131]
Last, the Court addressed whether release back into the general prison
population constituted a release from custody for
Miranda purposes. [FN132] Because prisoners retain some control over their lives,
are often able to communicate with others, and the interrogator has no
power over the incarceration, the Court answered the question in the affirmative.
[FN133] Thus, the Court defined “normal” as merely returning
to the state of life enjoyed by the suspect immediately before the interrogation.
The Court held that as long as the sus- pect was not in “interrogative
custody,” meaning isolated with his accusers, release back into
the general prison population constituted a break in custody for purposes of
D. Justice Thomas's Concurring Opinion
Justice Thomas, concurring in part and in the judgment, criticized the
majority's bright-line fourteen-day rule. Thomas immediately made
clear his disagreement with any extension of the
Edwards rule beyond the nar- row facts of that case. [FN135] He then argued that even if
Edwards applied in Shatzer's case, the majority's rule was arbitrary, incomplete,
and inefficient. [FN136]
Furthermore, Justice Thomas maintained that the new fourteen-day rule was
Zerbst mandated a totality of the circumstances*302 test, which accounted for any time lapse, to determine the volun- tariness
of a waiver. [FN137] In addition, Justice Thomas disagreed with the majority's
conclusion that the four- teen-day rule would aid police investigations.
[FN138] Specifically, Justice Thomas stated, “Determining whether
a suspect was previously in custody, and when the suspect was released,
may be difficult without ques- tioning the suspect, especially if state
and federal authorities are conducting simultaneous investigations.”
[FN139] Last, Justice Thomas accused the majority of valuing certainty
and ease of application over well- reasoned, substantive conclusions. [FN140]
E. Justice Stevens's Concurring Opinion
Justice Stevens, also concurring in the judgment, attacked the fourteen-day
rule mainly on public policy con- cerns. He asserted that any bright-line
rule was unsatisfactory because “[n]either a break in custody nor
the pas- sage of time ha[d] an inherent, curative power” to establish
genuine voluntariness. [FN141] Justice Stevens ar- gued that a suspect
may assume that his requests for counsel have been ignored if he is re-interrogated
after two weeks without having obtained counsel, and may assume he has
no choice but to submit to the interrogation. [FN142] Moreover, Justice
Stevens maintained that the police will be motivated “to delay formal
proceedings, in order to gain additional information by way of interrogation
after the time limit lapses.” [FN143]
Justice Stevens also addressed the dangerous implications of the fourteen-day
rule for suspects already in prison. First, Justice Stevens argued that
because prisoners are summoned by guards to interrogation, they may assume
that the guards and police are not independent, and feel forced to surrender
to the questioning. [FN144] Next, Justice Stevens asserted that the fourteen-day
rule could encourage officers or guards to badger im- prisoned suspects,
who will not have the opportunity to overcome the pressures from the interrogation.
[FN145] Although Shatzer did not claim any disparate treatment by prison
officials or guards between his two interroga- tions, [FN146] Justice
Stevens was concerned with this “troubling set of incentives for
police.” [FN147] Last, because a suspect is already in custody, police*303 have no need to formally place the suspect under arrest and can “comfortably
bide their time, interrogating and reinterrogating their suspect”
with little or no evidence of guilt, until the suspect surrenders and
incriminates himself. [FN148]
Shatzer fourteen-day rule confirms the Court's retreat from the prophylactic
measures established in
Edwards. This retreat jeopardizes a suspect's rights to counsel and to remain
Shatzer, the Court continued its gradual abandonment of
Miranda's protections by valuing efficiency above individual rights. Distressingly,
this abandonment arrives at a time when Fifth and Sixth Amendment rights
are increas- ingly more valuable to suspects. And while suspects are most
in need of those rights, the Court's recent focus on
Edwards makes it easier to curtail suspects' rights, making the
Shatzer opinion more detrimental to suspects today. The Court's continued limitation of
Miranda rights is logically unsound, wrongly focused, and inconsist- ent with the
modern realities of criminal justice.
A. The Court's Retreat from the Prophylactic Ideals of Miranda
The Court's recent retreat from prophylactic tenants overlooks the
general concerns that guided the
Miranda Court forty years ago. Relying on
Miranda's assertions, theShatzer Court noted that a set of prophylactic meas- ures was necessary to protect
suspects from the “‘inherently compelling pressures' of
custodial interrogation.” [FN149] “Inherently compelling”
pressures denoted an inescapable characteristic of interrogation that
generated psychological pressures and uncomfortable experiences for individuals
under interrogation. Accordingly, the Court recognized some degree of
psychological pressure present in
all custodial interrogations. [FN150]
Edwards, the Court recognized that these inherent pressures build with subsequent
interrogations. [FN151] As such,
Edwards held that waivers of the right to counsel occurring after a previous invocation
of that right are presumed involuntary. [FN152] Concerned with genuine
Edwards Court likely de- clined to place a limit on the time between interrogations
because every person will react to, and overcome, any coercive techniques
differently and within varying timeframes.
Edwardsadhered to the
Miranda Court's con- cerns about inherent pressures by holding that
*304 an inherent characteristic does not fade with time, and no generalizations
about individual triumph over coercion would prove effective.
Shatzer Court imported its own determination of the time it takes a suspect to
overcome coer- cive effects of an interrogation and make a voluntary waiver:
fourteen days. [FN153] That is all it takes to elim- inate coercive psychological
pressures, according to the Court. [FN154] The Court admits that pressures
will still exist during subsequent interrogations, but assumes that the
degree of pressure felt by a suspect after a two- week break in custody
will never be more than the pressure felt at any prior custodial interrogations.
[FN155] This assumption ignores the likely possibility that an individual
will feel more pressured after a second, third, or tenth interrogation
because he feels hunted and badgered by police.
Because pressure naturally builds in this way, the Court's estimation
that pressure will only increase in “narrow circumstances”
where no break in custody has occurred is flawed. [FN156] Though the Court
contends that repeated interrogation attempts will increase the likelihood
that a suspect will again assert his right, [FN157] it is more likely
that a suspect will feel his requests have been ignored and he has no
option but to talk. [FN158] Feeling that his rights have been ignored
naturally increases pressure because the suspect will feel that he cannot
trust his questioners. Logically, a break in custody will not always place
a suspect in the same, or bet- ter, position than he was at the initial meeting.
Not only did the
Shatzer Court discount and misapprehend the meaning of inherent pressures, it also
erro- neously failed to account for variances in individual personalities,
experiences, and understandings of the crim- inal justice system.
Miranda sought to provide “individuals the tools to counter inherently coercive
pressure by asserting their right not to deal with the police alone.”
[FN159] However, although every suspect is given the same “tool”
by being read the same rights, every individual has varying capacities
to use this tool. For example, providing every American with a fishing
pole does not mean that every American eats fish for dinner that night.
Some Americans will have no clue what to do with the contraption, others
will be scared of the sharp hook and live bait, and
*305 others still will be physically unable to maneuver the device because of
age or disability.
A rule based on blanket generalizations is directly opposed to the core of
Miranda's analysis. The
Miranda Court strongly asserted that “the privilege against self-incrimination
all individuals.” [FN160] In fact,
Miranda declared that the Fifth Amendment privilege is so fundamental that the
defendant's “age, education, in- telligence, or prior contact
with authorities” should have no bearing on his ability to exercise
his rights. [FN161]
This reasoning accorded with the Court's earlier holding in
Zerbst that “[t]he determination of whether there has been an intelligent
waiver of right to counsel must depend, in each case, upon the particular
facts and circum- stances surrounding that case, including the background,
experience, and conduct of the accused.” [FN162]
Interestingly, the Court made the same mistake in
Davis when it declared that a suspect's invocation of the right to counsel
must be unambiguous. [FN163] Numerous scholars argue that the
Davis rule will have a dispro- portionate effect on females and minorities. [FN164]
Specifically, women and minorities are far more likely to use indirect
speech patterns such as “maybe” and “I think.”
[FN165] Therefore, by failing to account for lin- guistic variances in
certain segments of the population,
Davisarbitrarily denied some individuals the right to counsel. [FN166]
Despite precedent that acknowledged and protected individual abilities,
the Court ignored this principle in
Shatzer. With its fourteen-day rule, the
Shatzer Court took
Edwards' concern with genuine, individual voluntariness and replaced it with a blanket
generalization about human reaction to sub- sequent or repeated interrogation
Shatzer Court expressed this generalization as the suspect re- turning to “normal
life.” [FN167] However, the emphasis on a return to normalcy is
troublesome because even if a suspect is placed back at equilibrium,
inherent pressures will still revisit him during subsequent interrogation. And if
he felt unwilling or unable to communicate to his interrogators without
counsel the first time, the return of these pressures will probably restore,
or even enhance, that feeling.
*306 The Court's retreat from prophylactic measures compromises not only
a suspect's right to counsel, but also his right to remain silent.
“The right to counsel exists only to protect the right to remain
silent,” as the
Mir- anda Court considered the former as a means to protect the latter. [FN168] Consequently,
any limitations on the right to counsel also limit the right to remain silent.
Shatzer's limitation of the right to counsel may also spur na- tionwide decisions
similarly limiting the right to remain silent. Although courts have largely
considered the two rights as separate and distinct standards. [FN169]
nine out of eleven circuits and the District of Columbia have applied theDavis standard for invoking the right to counsel to the right to remain silent.
Shatzer's limitation of the right to counsel may be applied in cases concerning
the right to remain silent. Admit- tedly, because the right to remain
silent is already quite limited, [FN171]
Shatzer's fourteen-day rule would actu- ally bolster that right. But the underlying trend of
Davis —limiting the prophylactic protections awarded by
Edwards—is a dangerous ideal to transport into cases involving the right
to remain si- lent. Courts may use
Shatzer's fourteen-day rule to proportionally limit the time lapse required
to spoil a sus- pect's invocation of the right to remain silent. And
any additional limitations on the right to remain silent may evaporate
the right entirely.
B. The Shatzer
Court Wrongly Abandoned Prophylactic Measures in Favor of Efficiency
Shatzer Court held that it would be “impractical” to leave
Edwards's application open for clarification on a case-by-case basis, partly
for judicial efficiency [FN172] and partly to ensure that law enforcement
officers know for certain when renewed interrogation is lawful. [FN173]
Though the importance of judicial efficiency is debatable, it is beyond
the scope of this Comment. [FN174] Nevertheless, the Court placed too
*307 on ensuring ease of application for law enforcement, and abandoned its
dedication to prophylactic meas- ures established in
After the Court barely kept the core of
Miranda's holding alive in
Dickerson, it once again turned its back on one of
Miranda's main principles: that law enforcement's investigative powers,
though valuable to society, are limited by the rights of the accused guaranteed
in the Sixth Amendment. [FN175] Individual rights should not and do not
have to be compromised to establish an effective system of law enforcement.
Miranda Court acknowledged the importance of police investigations and interrogations
but refused to abridge constitu- tional rights to make the prosecutor's
job a little easier. [FN177] With
Shatzer, the Court tipped the scales in the opposite direction based on a flawed
focus on efficiency.
Contrary to the Court's assertion, the fourteen-day rule is not necessary
to ensure the fair and effective ad- ministration of justice. The original
Edwards rule did not prevent all confessions. If a suspect wishes to make a voluntary
confession, he may do so even after invoking his rights, as
Edwards allows questioning to resume if a suspect initiates the discussion. [FN178]
And because only twenty percent of suspects invoke their rights, [FN179]
Edwards ultimately has no effect on a vast majority of cases, and the number of
confessions that may be suppressed is slim. Moreover, the Court's
fixation with law enforcement is unfounded and contrary to a fair criminal
justice system. In a just system, law enforcement should not “have
to fear that if an accused is permit- ted to consult with a lawyer, he
will become aware of, and exercise, these rights.” [FN180] The mere
fact that law enforcement fears a suspect's exercise of his fundamental
rights is unsettling.
In fact, those fears may not be legitimate. Despite the Court's intentions in
Miranda, false confessions are still prevalent, [FN181] showing that the numerous
exceptions toMiranda have provided law enforcement with sufficient loopholes to continue to
practice coercive tactics during interrogations. Although it is now well
estab- lished that physical abuse is an illegal tactic to extract confessions,
the line between acceptable psychological techniques and psychological
coercion that is a violation of the Constitution remains blurred. [FN182]
The four- teen-day rule, along with the
*308 Court's progeny of exceptions to
Miranda, has informed law enforcement of- ficers of exactly how much questionable
behavior they can legally employ.
Shatzer's rule will actually aid law enforcement in extracting confessions
from suspects in cus- tody because those suspects will be susceptible
to incessant re-questioning every two weeks, even if they prop- erly assert
their right to counsel. Those people unable to make bail for whatever
reason will therefore be more detrimentally impacted by the fourteen-day
rule than will the rest of society. Hence, the rule will be arbitrarily
more harmful to certain individuals with no justification.
Ultimately, by continuing to institute exceptions and limitations to the
Miranda rights, the Court is instituting a dangerous pattern that actually helps
police engage in trickery and coercion. Nonetheless, the
Shatzer decision continued the Court's precedent of chipping away at
Miranda rights to satisfy concerns about effective law enforcement. Moreover, as
law enforcement officers become more clever and confident in their techniques,
suspects struggle to assert and protect their fundamental rights, which
are particularly critical in today's criminal prosecutions.
C. Why Fifth and Sixth Amendment Rights are More Important to Suspects Today
Shatzer fourteen-day rule limited a suspect's rights at a time when a suspect's
pretrial rights are becom- ing increasingly critical to the outcome of
his case. Approximately ninety percent or more of today's criminal
tri- als are resolved by negotiated disposition rather than trial, meaning
defendants “rarely face their accusers during traditional courtroom
proceedings that pit skilled trial lawyers against each other.”
[FN183] This is a recent de- velopment in criminal law that differs from
the reality the Court faced at the time of
Miranda. Specifically, between 1980 and 2002, the rate of federal criminal cases
concluded by a bench and jury trial fell from 23 per- cent to 4.8 percent.
[FN184] So today, pretrial contexts, such as interrogation settings, are
the stage for judg-
ment, where damage can be minimized, bargains can be struck, and cases
can be won or lost. [FN185] In fact, only in rare cases does the “compulsion”
sought to be protected by the Fifth Amendment occur at trial. [FN186]
This modern reality makes a suspect's right against self-incrimination
incredibly valuable, as there may not be a trial to argue the
*309 voluntariness of a statement. Even more troubling for suspects, the rate
of acquittal has declined alongside the falling rate of criminal trials.
[FN187] The declining rate of acquittals has been attrib- uted to the
enactment of the United States Sentencing Guidelines, which provided prosecutors
more bargaining leverage. [FN188] Thus, suspects are at a disadvantage
from the initiation of the investigation because the inter- rogation context
is increasingly more influential to the result of their case,
and prosecutors have increased bar- gaining power. And at this time when pretrial
contexts are especially valuable to suspects, the Court is continu- ing
to curtail the pretrial rights of the accused.
The trend of modern criminal prosecution also clouds the line separating
Fifth and Sixth Amendment protec- tions, which further increases a suspect's
need for prophylactic protections that transcend the bare text of the
Constitution. Unlike the Fifth Amendment, the Sixth Amendment textually
guarantees a suspect's right to coun- sel in a “criminal prosecution.”
[FN189] This right need not be invoked, but automatically takes effect
when prosecution commences. [FN190] However, this right does not attach
until the “critical stage” of the proceed- ings, which can
include postcharge interrogations and lineups. [FN191] Today, as initial
and pre-charge inter- rogations grow increasingly influential in criminal
prosecutions, the definition of this “critical stage” is chan-
ging. While the increasingly blurred line between the critical and non-critical
stage of criminal prosecution would support stronger rights earlier in
the process, the Court has done the opposite. Ignoring the realities of
modern criminal prosecution, the Court has made the right to counsel harder
to invoke [FN192] and more diffi- cult to maintain. [FN193]
D. How the Court's Focus on Edwards
Makes it Easier for the Court to Curtail Suspect Rights
Shatzer Court confidently flexed its muscles by declaring its prerogative to alter
its own “judicially pre- scribed prophylaxis.” [FN194] The
Shatzer Court justified its drastic limitation on individual rights by proclaim- ing*310 that the
Edwards rule is not a constitutional mandate. [FN195] But only a decade ago in
Dickerson, the Court avoided overruling
Miranda by declaring unconstitutional an act of Congress that purported to reduce
Miranda warnings to a mere factor for consideration in determining the voluntariness
of a statement. [FN196] Critical to the
Dickerson Court's reasoning was that
Miranda was a “constitutional decision” of the Court, which may not
be overruled by an act of Congress. [FN197] Although the
Dickerson Court qualified its decision by ex- plaining that constitutional rulings
are not immutable, but are subject to judicial modification, [FN198] the
Court explicitly classified
Miranda as a “constitutional decision.” [FN199] Only ten years after
this controver- sial classification, theShatzer Court declared that
Edwards, a direct offspring of
Miranda, [FN200] is not a con- stitutional mandate. [FN201]
Miranda are so intimately related, this shift is not fully justified. The
Edwards opin- ion simply reconfirmed [FN202] the
Miranda mandate that an accused has a constitutional right to have counsel present
during custodial interrogation. [FN203] The
Edwards Court aimed to provide “substance” to
Miranda and its progeny, and emphasized that it is inconsistent with
Miranda for police to reinterrogate a suspect in cus- tody after he has clearly
asserted his right to counsel. [FN204] Therefore, the
Edwards rule was fashioned com- pletely on
Miranda's heels, and if one rule is a constitutional mandate, the other should
be as well. [FN205]
Edwards as merely a judicially created prophylaxis increases and assists the Court's
further curtail suspect rights. By switching its focus from
Shatzer Court has found an easier way to limit rights of the accused. Specifically,
Edwards rule is easier than limiting the
Mir- anda rules because by classifying the
Edwards rule as a judicial prophylaxis instead of a constitutional rule, the Court
need not defend its limitations on that prophylaxis, as it did with
The United States Supreme Court began running with the idea of additional
safeguards for the accused in
Edwards, but tripped over those safeguards withDavis and eventually fell backwards with
Shatzer, the Court correctly asserted its prerogative to clarify and constrain
its own prophylactic creations, but lost sight of its concurrent responsibility
to protect individual rights, albeit those the Court itself has created.
By focusing on the
Edwards rule instead of
Miranda rights generally, the Court was able to create the fourteen- day rule with
minimal constitutional challenge, although the changing process of criminal
Ed- wards' prophylactic measures more closely related to explicit constitutional rights.
Consequently, the Court ignored the realities of the modern criminal prosecution
process and drastically lim- ited
Miranda rights at a time when suspects need them the most. The Court, and Justice
Thomas in his concur- rence, ask their audience to find solace in
Zerbst protections still available to defendants. [FN207] But because
Miranda by twenty-eight years, it can be argued that
Miranda replaced the need for
Zerbst, meaning that
Shatzer was the Court's last opportunity to salvageMiranda rights. Given this opportunity, the Court not only constricted the accused's
right to counsel, but also jeopardized his right to remain silent.
Given the Court's flawed reasoning, detrimental impact, and inconsistency
with the realities of modern crim- inal prosecutions,
Shatzer was wrongly decided and will hinder the fair administration of criminal
justice in America.
[FNa1]. J.D. Candidate, 2012. I would like to thank the members of the
Denver University Law Review Board and editorial staff for their significant
and untiring roles in refining this Comment. I would also like to thank
Karen Steinhauser for her time and invaluable contributions. Lastly, I
thank my family and friends for their con- tinuing support throughout
all of my incredible journeys.
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
See Dickerson v. United States, 530 U.S. 428, 443 (2000) ( “
Miranda has become embedded in routine police practice to the point where the warnings
have become part of our national culture.”).
Miranda, 384 U.S. at 458, 467.
Davis v. United States, 512 U.S. 452, 461-62 (1994) (holding that a suspect's request for coun- sel must be unambiguous);
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (holding that after a suspect has invoked his right to counsel,
questioning cannot resume until the suspect has obtained counsel or the
suspect ini- tiates discussion).
130 S. Ct. 1213(2010).
Id. at 1223.
Dickerson, 530 U.S. at433 (“[F]or the middle third of the 20th century our cases based
the rule against admitting coerced confessions primarily, if not exclusively,
on notions of due process.”).
[FN8]. Brooks Holland,
99 J. CRIM. L. & CRIMINOLOGY 381, 390 (2009) (quoting
McNeil v. Wisconsin, 501
U.S. 171, 175 (1991)).
Miranda v. Arizona, 384 U.S. 436, 490 (1966). Although there is no right to be advised of one's rights in the Constitution,
the Constitution's relation to
Mirandawarnings has been debated by the Court.
Compare Dick-erson, 530 U.S. at444 (concluding “that
Miranda announced a constitutional rule that Congress may not super- sede legislatively”),
with Dickerson, 530 U.S. at454 (Scalia, J., dissenting) (accusing the majority of playing “word
games” to make
Miranda a constitutional mandate).
U.S. CONST. amend. V.
[FN11]. William T. Pizzi & Morris B. Hoffman,
Taking Miranda's Pulse, 58 VAND. L. REV. 813,814-15(2005) (explaining that prior to the
Miranda decision, the United States Supreme Court held that a “case”
meant the actual criminal proceeding, and “compelled” applied
only to a defendant's right to not be held in contempt for refusing
to testify at the proceeding).
See Michael J. Zydney Mannheimer,
Ripeness of Self-Incrimination Clause Disputes, 95 J. CRIM. L. &CRIMINOLOGY 1261, 1317-18, 1323 (2005) (arguing that the United States Supreme Court violates the Con- stitution
by hearing claims based on the Self-Incrimination Clause before charges
have been filed or a criminal proceeding has commenced because such claims
are not yet ripe for adjudication under the plain language of the Fifth
U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right
... to have the
Assistance of Counsel for his defence.”).
Dickerson v. United States, 530 U.S. 428, 434-35 (2000) (“In
Miranda, we noted that the advent of modern custodial police interrogation brought
with it an increased concern about confessions obtained by coer- cion.”).
Miranda v. Arizona, 384 U.S. 436, 458-59 (1966) (tracking the Court's historical disapproval of coerced confessions,
which finds its roots in the Star Chamber Oath).
Dickerson, 530 U.S. at 433(“[F]or the middle third of the 20th century our cases based the
rule against admitting coerced confessions primarily, if not exclusively,
on notions of due process.”);
Haynes v.Washington, 373 U.S. 503, 515 (1963);
Lynumn v. Illinois, 372 U.S 528, 537 (1963);
Payne v. Arkansas, 356
U.S. 560, 568 (1958).
See Haynes, 373 U.S. at 515;Lynumn, 372 U.S. at 534, 537. [FN18].
304 U.S. 458, 464 (1938).
Lynumn, 372 U.S. at 534.
Chavez v. Martinez, 538 U.S. 760, 796 (2003) (Stevens, J., concurring in part and dissenting in part).
Procedural Protections of the Criminal Defendant — A Reevaluation of the Privilege Against
Self-Incrimination and the Rule Excluding Evidence of Propensity to Commit Crime, 78 HARV. L. REV. 426,
430-31 (1964) (asserting that only preventing the admission of involuntary statements
at trial does not provide enough protection to defendants because juries
may assume the parties are debating over a confession when the defense
objects to evidence the prosecution attempts to admit, and the prosecutor's
knowledge of a confession, admissible at trial or not, could heavily influence
his decision whether or not to press charges).
Id. at 431.
Leyra v. Denno, 347 U.S. 556, 558-59 (1954) (finding the defendant's confession involuntary because defendant had
been questioned on different days for eight hours, fourteen hours, and
twenty-three hours respectively, and during the last session a police
psychiatrist, posing as a medical doctor to treat the suspect's si-
nus infection, attempted to hypnotize the suspect);
Brown v. Mississippi, 297 U.S. 278, 284 (1936) (finding the defendant's confession involuntary because defendant had
been whipped and tortured over several days).
Escobedo v. Illinois, 378 U.S. 478, 490-91 (1964) (holding that absent the right to counsel and an opportunity to remain
silent, any incriminating statements obtained from a suspect in custody
were inadmiss- ible at trial). The defendant in
Escobedo was accused of murder, held in custody, and not advised of his constitu-
Id. at 479, 481. The
Escobedo Court found that any rights lost during interrogation were irrevoc- ably
lost and therefore interfered with any rights guaranteed to the accused
See id. at 486. In other words, the
Escobedo Court found that although the Constitution's language only applied
to the courtroom, cer- tain rights could be curtailed before a defendant
ever reached the courtroom.
[FN25]. Pizzi & Hoffman,
supra note 11, at 815-16. [FN26].
Miranda v. Arizona, 384 U.S. 436, 491 (1966). [FN27].
Id. at 492.
Id. at 439.
Id. at 445-47;
see also id. at 446 n.7 (citing multiple cases involving police brutality). The Court
was particularly disturbed by police manuals that described in detail
how to psychologically disadvantage suspects and extract confessions.
Id. at 448-55;
see also id. at 449 n.8 (referring to several of the manuals then in use by the police).
Id. at 467. [FN33].
See id. at 442.
Id. at 466; Marcy Strauss,
Understanding Davis v. United States, 40 LOY. L.A. L. REV. 1011, 1015(2007).
Malloy v. Hogan, 378 U.S. 1, 8 (1964) (holding that a person has the right “to remain silent unless
he chooses to speak in the unfettered exercise of his own will, and to
suffer no penalty ... for such silence”).
Miranda, 384 U.S. at 469-70.
[FN37]. Donald P. Judges & Stephen J. Cribari,
Speaking of Silence: A Reply to Making Defendants Speak, 94
MINN. L. REV. 800, 812 (2010). [FN38].
Id. at 812-13.
Miranda, 384 U.S. at 444. [FN40].
Id. at 473-74.
Id. at 474. [FN42].
Id. at 476.
supra note 34, at 1014.
[FN45]. Pizzi & Hoffman,
supra note 11, at 817. [FN46].
See id. at 817 n.20.
See Maryland v. Shatzer, 130 S. Ct. 1213, 1221-22 (2010).
Id. at 1222(quoting
McNeil v. Wisconsin, 501 U.S. 171, 181 (1991)).
Miranda, 384 U.S. at475 (citing
Johnson v. Zerbst, 304 U.S. 458, 465 (1938) (holding that the Consti- tution “imposes the serious and weighty
responsibility upon the trial judge of determining whether there is an
in- telligent and competent waiver by the accused”)).
Miranda, 384 U.S. at 475.
Id. at 460;see also Judges & Cribari,
supra note 37, at 806 (noting that in the late eighteenth century to early nineteenth
century, American criminal justice switched from an accused-speaks model
to a testing- the-prosecution model).
451 U.S. 477 (1981). The
Edwards holding was labeled a “second layer of prophylaxis.”
McNeil v. Wis- consin, 501 U.S. 171, 176 (1991).
Edwards, 451 U.S. at 484-85. [FN54].
Id. at 478.
Id. at 479.
Id. at 482-84. [FN60].
Id. at 487. [FN61].
See id. at 484-85. [FN62].
Id. at 484-86. [FN63].
Id. at 484-85.
See id. at 484-86 & n.9.
[FN65]. Marcy Strauss,
The Sounds of Silence: Reconsidering the Invocation of the Right to Remain Silent Un-der Miranda, 17 WM. & MARY BILL RTS. J. 773, 818-19 (2009) (asserting that invoking the right to counsel has more dire consequences
for law enforcement than does asserting the right to remain silent).
Compare Ed-wards, 451 U.S. at484-85 (holding that when a suspect invokes the right to counsel, the interrogation
must cease and cannot resume until counsel is made available or the suspect
with Michigan v.Mosley, 423 U.S. 96, 102-04 (1975) (holding that although an interrogation must immediately cease upon asser-
tion of the right to remain silent, it does not follow that law enforcement
may not resume questioning two hours later).
supra note 34, at 1022.
Arizona v. Roberson, 486 U.S. 675, 687 (1988);
see also Thomas N. Radek, Note,
Arizona v. Roberson:
The Supreme Court Expands Suspects' Rights in the Custodial Interrogation Setting, 22 J. MARSHALL L. REV.
685, 686 (1989).
Minnick v. Mississippi, 498 U.S. 146, 153 (1990). [FN69].
512 U.S. 452 (1994).
Id. at 454.
Id. at 455.Specifically, Davis said, “Maybe I should talk to a lawyer.”
See id. at 459. [FN76].
See id. at 454.
Id. at 460-61. In contrast to
Davis Court appeared to value law enforcement
efficiency more than rights of the accused. According to
Davis, the primary benefit of
Miranda was the
advise- ment of rights. It was then up to the suspect to unambiguously invoke those rights.
supra note 34, at 1027-28. [FN79].
Davis, 512 U.S. at 458.
417 U.S. 433 (1974). [FN81].
Id. at 450-52.
420 U.S. 714 (1975). [FN83].
Id. at 723-24.
467 U.S. 649 (1984).
Id. at 653.In a grocery store, police apprehended a rape suspect known to be carrying
a gun, did not find the gun on his person, and then asked him where he
had put the gun.
Id. at652. The suspect answered, “[T]he gun is over there.”
Id. The statement was ruled admissible under a “public safety”
530 U.S. 428 (2000).
18 U.S.C. § 3501 (2000),
invalidated by Dickerson v. United States, 530 U.S. 428 (2000). [FN88].
Dickerson, 530 U.S. at 442-44.
Maryland v. Shatzer, 130 S. Ct. 1213, 1220 (2010) (quoting
McNeil v. Wisconsin, 501 U.S. 171, 177(1991)).
Id. at 1217. [FN91].
Id. at 1217-18. [FN95].
Id. at 1218. [FN97].
See id. [FN99].
See id. [FN102].
Id. at 1218 & n.1 (discussing Maryland's filing of a
nolle prosequi to the second-degree sexual offense charge, and consenting to dismissal
of the misdemeanor charges barred by the statute of limitations).
Id. at 1218.
Shatzer v. State, 954 A.2d 1118, 1131 (Md. 2008),
130 S. Ct. 1213 (2010). [FN106].
Shatzer, 130 S. Ct. at 1217.
See id. at 1222. [FN109].
See id. at 1220. [FN110].
See Arizona v. Roberson, 486 U.S. 675, 687-88 (1988). [FN113].
See Minnick v. Mississippi, 498 U.S. 146, 153-54 (1990). [FN114].
Shatzer, 130 S. Ct. at 1222.
See id. [FN116].
See id. [FN117].
Id. at 1223. [FN119].
Id. at 1221. [FN120].
Id. at 1223.
Id. at 1223 n.7.
Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
Shatzer, 130 S. Ct. at1220 (“We have frequently emphasized that the
Edwards rule is not a constitu- tional mandate, but judicially prescribed prophylaxis.”).
See infra Part II.D. [FN126].
See infra Part II.E. [FN127].
Shatzer, 130 S. Ct. at 1220. [FN128].
Id. at 1223-24 (“Now, in cases where there is an alleged break in custody,
they simply have to repeat the inquiry for the time between the initial
invocation and reinterrogation. In most cases that determination will
be easy. And when it is determined that the defendant pleading
Edwards has been out of custody for two weeks before the contested interrogation,
the court is spared the fact-intensive inquiry into whether he ever, anywhere,
Miranda right to counsel.”).
Id. at 1223. [FN131].
Id. at 1222-23. [FN132].
Id. at 1224. [FN133].
Id. at 1224-25.
Id. at 1227 (Thomas, J., concurring). [FN136].
See id. at 1227-28.
Id. at 1227 n.1 (citing
Miranda v. Arizona, 384 U.S. 436, 475 (1966)). [FN138].
See Shatzer, 130 S. Ct. at 1228 n.2.
Id. at 1228.
Id. at 1234 (Stevens, J., concurring). [FN142].
Id. at 1229.
Id. at 1231.
Id. at 1233 (“Prisoners are uniquely vulnerable to the officials who
control every aspect of their lives; prison guards may not look kindly
upon a prisoner who refuses to cooperate with police. And cooperation
is fre- quently relevant to whether the prisoner can obtain parole.”).
See id. at 1232 (asserting that a prisoner's freedom is “severely limited,”
making it unlikely that a sus- pect in prison has communicated with friends,
family, or an attorney within fourteen days after questioning).
Id. at 1225 (majority opinion).
Id. at 1233 n.13 (Stevens, J., concurring). [FN148].
Id. at 1219 (majority opinion) (quoting
Miranda v. Arizona, 384 U.S. 436, 467 (1966)). [FN150].
See Shatzer, 130 S. Ct. at 1219.
See Edwards v. Arizona, 451 U.S. 477,483-84 (1981). [FN152].
See id. at 484-85.
Shatzer, 130 S. Ct. at 1223. [FN154].
Id. at 1222-23.
Id. at 1223(“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 ef- fects
of his prior custody.”).
Id. at 1226;see id. at 1231-32(Stevens, J., concurring).
Id. at 1226(majority opinion) (arguing that if a break in custody has not changed
the suspect's mind about having counsel present, he will know from
experience that he need only ask for counsel for the interroga- tion to cease).
Id. at 1229(Stevens, J., concurring). [FN159]. Strauss,
supra note 65, at 815.
Miranda v. Arizona, 384 U.S. 436, 472 (1966) (emphasis added). [FN161].
Id. at 468-69.
Johnson v. Zerbst, 304 U.S. 458, 464 (1938). [FN163].
Davis v. United States, 512 U.S. 452, 459 (1994).
supra note 34, at 1030 (citing David Aram Kaiser & Paul Lufkin,
Deconstructing Davis v.United States: Intention and Meaning in Ambiguous Requests for Counsel, 32 HASTINGS CONST. L.Q. 737,
759 n.69 (2005) ( “[T]he actual linguistic practices of many women and minorities
preclude them from meeting the standard of clarity demanded by
supra note 34, at 1030-31. [FN166]. Strauss,
supra note 34, at 1031.
Maryland v. Shatzer, 130 S. Ct. 1213, 1221 (2010) (majority opinion). [FN168]. Strauss,
supra note 65, at 817.
See supra note 65 and accompanying text.
supra note 65, at 784-85 (citing
Valle v. Sec'y for the Dep't of Corr., 459 F.3d 1206, 1213-15(11th Cir. 2006);
United States v. Nelson, 450 F.3d 1201, 1211-12 (10th Cir. 2006);
United States v. Sherrod,
445 F.3d 980, 982 (7th Cir. 2006);
McGraw v. Holland, 257 F.3d 513, 519 (6th Cir. 2001);
Simmons v. Bower-sox, 235 F.3d 1124, 1131 (8th Cir. 2001);
United States v. Anderson, No. 95-3048, 1996 WL 135720 (D.C. Cir.Feb. 16, 1996) (per curiam)).
See supra note 65, and accompanying text.
Shatzer, 130 S. Ct. at 1222-24(finding that the fourteen-day rule would conserve judicial resources by
making the determination of voluntariness “easy” if a suspect
has been out of custody for two weeks or longer).
See id. at 1222-23.
[FN174]. The Court has often expressed its preference for bright-line rules
over totality of the circumstances ap- proaches.
Davis v. United States, 512 U.S. 452, 461(1994) (“[I]f we were to require questioning to cease if a suspect
makes a statement that
might be a request for an attorney, this clarity and ease of application [set forth inEdwards] would be lost.”);
Minnick v. Mississippi, 498 U.S. 146, 151 (1990) (“The merit of the
Ed- wards decision lies in the clarity of its command and the certainty of its application.”).
supra note 8, at 390.
supra note 65, at 773 (quoting
Escobedo v. Illinois, 378 U.S. 478, 490 (1964) (“If the exercise of constitutional rights will thwart the effectiveness
of a system of law enforcement, then there is something very wrong with
Miranda v. Arizona, 384 U.S. 436, 479-81 (1966). [FN178].
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). [FN179]. Strauss,
supra note 65, at 774.
Escobedo v. Illinois, 378 U.S. 478, 490 (1964).
[FN181]. Brandon L. Garrett,
The Substance of False Confessions, 62 STAN. L. REV. 1051, 1060 (2010). [FN182].
See Laura Hoffman Roppe,
True Blue? Whether Police Should Be Allowed to Use Trickery and Decep-
tion to Extract Confessions, 31 SAN DIEGO L. REV. 729, 732 (1994). [FN183]. Holland,
supra note 8, at 382.
[FN184]. Frank O. Bowman, III, Response,
American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer, 156 U. PA. L. REV. PENNUMBRA 226, 226(2007), http://www.pennumbra.com/responses/11-2007/Bowman.pdf.
supra note 8, at 382-83. [FN186]. Manheimer,
supra note 12, at 1265.
supra note 184, at 227.
supra note 184, at 226-27 (citing Ronald F. Wright,
Trial Distortion and the End of Inno- cence in Federal Criminal Justice, 154 U. PA. L. REV. 79, 101-06 (2005)(presenting data to support the asser- tion that the post-1987 federal
sentencing system consisting of the United States Sentencing Guidelines
provided prosecutors more bargaining leverage, directly resulting in the
declining number of acquittals)).
U.S. CONST. amend. VI. [FN190]. Holland,
supra note 8, at 390.
Moran v. Burbine, 475 U.S. 412, 428 (1986)).
Davis v. United States, 512 U.S. 452, 459 (1994) (holding that a suspect's invocation of the right to counsel
must be unambiguous to halt the interrogation).
Maryland v. Shatzer, 130 S. Ct. 1213, 1223 (2010) (holding that a suspect's assertion of his right to counsel
forbids police from interrogating the suspect again for fourteen days
if he has not obtained counsel).
Id. at 1220. [FN195].
Dickerson v. United States, 530 U.S. 428, 432 (2000). [FN197].
Id. at 441. [FN199].
Id. at 432.
Shatzer, 130 S. Ct. at 1219-20(describing the advent of the
Edwards rule as an expansion of
Id. at 1220.
Edwards v. Arizona, 451 U.S. 477, 485 (1981). [FN203].
Id. at 482.
Id. at 485.
See Shatzer, 130 S. Ct. at 1228(Stevens, J., concurring) (“The source of the holdings in the long
line of cases that includes both
Miranda, however, is the Fifth Amendment's protection against com- pelled
self-incrimination applied to the ‘compulsion inherent in custodial’
Dickerson v. United States, 530 U.S. 428, 439-44 (2000). [FN207].
Shatzer, 130 S. Ct. at 1227 n.1(Thomas, J., concurring).
88 Denv. U. L. Rev. 289
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