New Standards for Miranda Warnings in Colorado
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By: Hannah Misner, clerk,


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 suspects' Miranda rights.

Part I of this Comment briefly describes the Court's development and clarification of 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 of Miranda, 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 a suspect's 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 that Shatzer was wrongly decided, and that the decision will have a detrimental effect on the fair administration of criminal justice in America.


Prior to 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 Clause,” the 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, the Miranda 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]

However, the 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

Although 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 of Miranda 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 Miranda rights 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 Miranda and 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 the Edwards 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 the Edwards 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 Miranda. In 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 Miranda requirements 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 because 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 Edwards.


In 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 of Miranda/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.

A. Facts

In 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 Edwards.” [FN106]

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] that otherwise *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 Edwards. [FN118]

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 Edwards protections 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 protected under 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 Edwards and 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 Miranda and Edwards. [FN134]

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 unnecessary because 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]


The Shatzer fourteen-day rule confirms the Court's retreat from the prophylactic measures established in Miranda and Edwards. This retreat jeopardizes a suspect's rights to counsel and to remain silent. With 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 and Edwards

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, the Shatzer 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]

In 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 voluntariness, the 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. Edwards adhered 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.

However, the 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 applies to 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, Davis arbitrarily denied some individuals the right to counsel. [FN166]

Despite precedent that acknowledged and protected individual abilities, the Court ignored this principle in Davis and Shatzer. With its fourteen-day rule, the Shatzer Court took Miranda's and Edwards' concern with genuine, individual voluntariness and replaced it with a blanket generalization about human reaction to sub- sequent or repeated interrogation techniques. The 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 the Davis standard for invoking the right to counsel to the right to remain silent. [FN170] Similarly, 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 Shatzer and Davis —limiting the prophylactic protections awarded by Miranda and 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

The 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 much emphasis
*307 on ensuring ease of application for law enforcement, and abandoned its dedication to prophylactic meas- ures established in Miranda.

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. [FN176] The 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 to Miranda 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.

Specifically, 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 application of 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

The 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

The 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, the Shatzer Court declared that Edwards, a direct offspring of Miranda, [FN200] is not a con- stitutional mandate. [FN201]

Because Edwards and 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]

Characterizing Edwards as merely a judicially created prophylaxis increases and assists the Court's ability to

further curtail suspect rights. By switching its focus from Miranda to Edwards, the Shatzer Court has found an easier way to limit rights of the accused. Specifically, limiting the 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 Miranda in Dickerson. [FN206]


The United States Supreme Court began running with the idea of additional safeguards for the accused in Miranda and Edwards, but tripped over those safeguards with Davis and eventually fell backwards with Shatzer. In 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 justice makes 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 Zerbst predates 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 salvage Miranda 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.

[FN1]. Miranda v. Arizona, 384 U.S. 436, 444 (1966).

[FN2]. 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.”).

[FN3]. Miranda, 384 U.S. at 458, 467.

[FN4]. See, e.g., 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).

[FN5]. 130 S. Ct. 1213(2010).

[FN6]. Id. at 1223.

[FN7]. 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.”).

[FN8]. Brooks Holland, 99 J. CRIM. L. & CRIMINOLOGY 381, 390 (2009) (quoting McNeil v. Wisconsin, 501
U.S. 171, 175 (1991)).

[FN9]. 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 Miranda warnings has been debated by the Court. Compare Dick- erson, 530 U.S. at 444 (concluding “that Miranda announced a constitutional rule that Congress may not super- sede legislatively”), with Dickerson, 530 U.S. at 454 (Scalia, J., dissenting) (accusing the majority of playing “word games” to make Miranda a constitutional mandate).

[FN10]. 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).

[FN12]. 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 Amendment).

[FN13]. U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right ... to have the
Assistance of Counsel for his defence.”).

[FN14]. 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.”).

[FN15]. 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).

[FN16]. 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.”); see, e.g., 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).

[FN17]. See Haynes, 373 U.S. at 515; Lynumn, 372 U.S. at 534, 537. [FN18]. 304 U.S. 458, 464 (1938).
[FN19]. Lynumn, 372 U.S. at 534.

[FN20]. Chavez v. Martinez, 538 U.S. 760, 796 (2003) (Stevens, J., concurring in part and dissenting in part).

[FN21]. Note, 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).

[FN22]. Id. at 431.

[FN23]. See, e.g., 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).

[FN24]. See, e.g., 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- tional rights. 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 during trial. 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. See id.

[FN25]. Pizzi & Hoffman, supra note 11, at 815-16. [FN26]. Miranda v. Arizona, 384 U.S. 436, 491 (1966). [FN27]. Id. at 492.
[FN28]. Id. [FN29]. Id. [FN30]. Id. at 439.
[FN31]. 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).

[FN32]. Id. at 467. [FN33]. See id. at 442.
[FN34]. Id. at 466; Marcy Strauss, Understanding Davis v. United States, 40 LOY. L.A. L. REV. 1011, 1015 (2007).

[FN35]. 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”).

[FN36]. 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.
[FN39]. Miranda, 384 U.S. at 444. [FN40]. Id. at 473-74.
[FN41]. Id. at 474. [FN42]. Id. [FN43]. Id. at 476.
[FN44]. Strauss, supra note 34, at 1014.

[FN45]. Pizzi & Hoffman, supra note 11, at 817. [FN46]. See id. at 817 n.20.
[FN47]. See Maryland v. Shatzer, 130 S. Ct. 1213, 1221-22 (2010).

[FN48]. Id. at 1222 (quoting McNeil v. Wisconsin, 501 U.S. 171, 181 (1991)).

[FN49]. Miranda, 384 U.S. at 475 (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”)).

[FN50]. Miranda, 384 U.S. at 475.

[FN51]. 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).

[FN52]. 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).

[FN53]. Edwards, 451 U.S. at 484-85. [FN54]. Id. at 478.
[FN55]. Id. [FN56]. Id. at 479.

[FN57]. Id. [FN58]. Id.
[FN59]. Id. at 482-84. [FN60]. Id. at 487. [FN61]. See id. at 484-85. [FN62]. Id. at 484-86. [FN63]. Id. at 484-85.
[FN64]. 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. at 484-85 (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 initiates discussion), 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).

[FN66]. Strauss, supra note 34, at 1022.

[FN67]. 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).

[FN68]. Minnick v. Mississippi, 498 U.S. 146, 153 (1990). [FN69]. 512 U.S. 452 (1994).
[FN70]. Id. at 454.

[FN71]. Id. at 455. Specifically, Davis said, “Maybe I should talk to a lawyer.” Id. [FN72]. Id.
[FN73]. Id. [FN74]. Id.
[FN75]. See id. at 459. [FN76]. See id. at 454.
[FN77]. Id. at 460-61. In contrast to Miranda and Edwards, the 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. See id.

[FN78]. See Strauss, supra note 34, at 1027-28. [FN79]. Davis, 512 U.S. at 458.
[FN80]. 417 U.S. 433 (1974). [FN81]. Id. at 450-52.
[FN82]. 420 U.S. 714 (1975). [FN83]. Id. at 723-24.
[FN84]. 467 U.S. 649 (1984).

[FN85]. 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. at 652. The suspect answered, “[T]he gun is over there.” Id. The statement was ruled admissible under a “public safety” exception. Id. at

[FN86]. 530 U.S. 428 (2000).

[FN87]. 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.
[FN89]. Maryland v. Shatzer, 130 S. Ct. 1213, 1220 (2010) (quoting McNeil v. Wisconsin, 501 U.S. 171, 177 (1991)).

[FN90]. Id. at 1217. [FN91]. Id.
[FN92]. Id. [FN93]. Id.
[FN94]. Id. at 1217-18. [FN95]. Id.
[FN96]. Id. at 1218. [FN97]. Id.
[FN98]. See id. [FN99]. Id.

[FN100]. Id. [FN101]. See id. [FN102]. Id.
[FN103]. 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).

[FN104]. Id. at 1218.

[FN105]. Shatzer v. State, 954 A.2d 1118, 1131 (Md. 2008), rev'd, 130 S. Ct. 1213 (2010). [FN106]. Shatzer, 130 S. Ct. at 1217.
[FN107]. Id.

[FN108]. See id. at 1222. [FN109]. See id. at 1220. [FN110]. Id.
[FN111]. See id.

[FN112]. 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.
[FN115]. See id. [FN116]. See id. [FN117]. Id. [FN118]. Id. at 1223. [FN119]. Id. at 1221. [FN120]. Id. [FN121]. Id. at 1223.
[FN122]. Id. at 1223 n.7.

[FN123]. Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

[FN124]. Shatzer, 130 S. Ct. at 1220 (“We have frequently emphasized that the Edwards rule is not a constitu- tional mandate, but judicially prescribed prophylaxis.”).

[FN125]. See infra Part II.D. [FN126]. See infra Part II.E. [FN127]. Shatzer, 130 S. Ct. at 1220. [FN128]. Id.
[FN129]. 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, asserted his Miranda right to counsel.”).

[FN130]. Id. at 1223. [FN131]. Id. at 1222-23. [FN132]. Id. at 1224. [FN133]. Id.
[FN134]. Id. at 1224-25.

[FN135]. Id. at 1227 (Thomas, J., concurring). [FN136]. See id. at 1227-28.
[FN137]. 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.
[FN139]. Id. [FN140]. Id. at 1228.
[FN141]. Id. at 1234 (Stevens, J., concurring). [FN142]. Id. at 1229.
[FN143]. Id. at 1231.

[FN144]. 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.”).

[FN145]. 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).

[FN146]. Id. at 1225 (majority opinion).

[FN147]. Id. at 1233 n.13 (Stevens, J., concurring). [FN148]. Id.
[FN149]. Id. at 1219 (majority opinion) (quoting Miranda v. Arizona, 384 U.S. 436, 467 (1966)). [FN150]. See Shatzer, 130 S. Ct. at 1219.
[FN151]. See Edwards v. Arizona, 451 U.S. 477,483-84 (1981). [FN152]. See id. at 484-85.
[FN153]. Shatzer, 130 S. Ct. at 1223. [FN154]. Id. at 1222-23.
[FN155]. 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.”).

[FN156]. Id. at 1226; see id. at 1231-32 (Stevens, J., concurring).

[FN157]. 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).

[FN158]. Id. at 1229 (Stevens, J., concurring). [FN159]. Strauss, supra note 65, at 815.
[FN160]. Miranda v. Arizona, 384 U.S. 436, 472 (1966) (emphasis added). [FN161]. Id. at 468-69.
[FN162]. Johnson v. Zerbst, 304 U.S. 458, 464 (1938). [FN163]. Davis v. United States, 512 U.S. 452, 459 (1994).
[FN164]. Strauss, 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 Davis.”)).

[FN165]. Strauss, supra note 34, at 1030-31. [FN166]. Strauss, supra note 34, at 1031.
[FN167]. Maryland v. Shatzer, 130 S. Ct. 1213, 1221 (2010) (majority opinion). [FN168]. Strauss, supra note 65, at 817.

[FN169]. See supra note 65 and accompanying text.

[FN170]. Strauss, 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)).

[FN171]. See supra note 65, and accompanying text.

[FN172]. 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).

[FN173]. See id. at 1222-23.

[FN174]. The Court has often expressed its preference for bright-line rules over totality of the circumstances ap- proaches. See, e.g., 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 in Edwards] 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.”).

[FN175]. Holland, supra note 8, at 390.

[FN176]. Strauss, 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 that system.”)).

[FN177]. 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.
[FN180]. 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://

[FN185]. Holland, supra note 8, at 382-83. [FN186]. Manheimer, supra note 12, at 1265.

[FN187]. Bowman, supra note 184, at 227.

[FN188]. Bowman, 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)).

[FN189]. U.S. CONST. amend. VI. [FN190]. Holland, supra note 8, at 390.
[FN191]. Id. (citing Moran v. Burbine, 475 U.S. 412, 428 (1986)).

[FN192]. 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).

[FN193]. 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).

[FN194]. Id. at 1220. [FN195]. Id.
[FN196]. Dickerson v. United States, 530 U.S. 428, 432 (2000). [FN197]. Id.
[FN198]. Id. at 441. [FN199]. Id. at 432.
[FN200]. Shatzer, 130 S. Ct. at 1219-20 (describing the advent of the Edwards rule as an expansion of Miranda

[FN201]. Id. at 1220.

[FN202]. Edwards v. Arizona, 451 U.S. 477, 485 (1981). [FN203]. Id. at 482.
[FN204]. Id. at 485.

[FN205]. See Shatzer, 130 S. Ct. at 1228 (Stevens, J., concurring) (“The source of the holdings in the long line of cases that includes both Edwards and Miranda, however, is the Fifth Amendment's protection against com- pelled self-incrimination applied to the ‘compulsion inherent in custodial’ interrogation ....”).
[FN206]. 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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