§ 25.06 WAIVER OF THE RIGHT TO COUNSEL

• Jurisdiction: North Carolina

§ 25.06. Waiver of the Right to Counsel

[A] General Principles

There is no way for a person to waive her right to be free from police-initiated "interrogation" that she does not know is occurring.⁸⁷ Therefore, the issue of waiver does not come into play in the context of "secret interrogations," i.e., when an undercover agent deliberately elicits incriminating statements from an accused, as occurred in Massiah v. United States,⁸⁸ United States v. Henry,⁸⁹ and Maine v. Moulton.⁹⁰

In all other circumstances, statements deliberately elicited by the government from an individual, in the absence of counsel, after formal adversary proceedings have commenced, are inadmissible in the prosecution's case-in-chief,⁹¹ absent proof of a voluntary, knowing, and intelligent relinquishment of the Sixth Amendment right to counsel.⁹² Difficulties arise, however, in determining what the police must do to obtain such a valid waiver, as the following materials suggest.

[B] The Court's First Waiver Case: Brewer v. Williams

In Brewer v. Williams,⁹³ W was arrested and arraigned in Davenport, Iowa, for the abduction of a young girl, believed to be dead, that occurred in Des Moines. W received Miranda warnings shortly after he was arrested, and twice more later. At his arraignment in Davenport, W spoke briefly to an attorney, who advised him to remain silent until he saw his Des Moines lawyer. W also spoke by telephone to his Des Moines counsel, who gave him the same advice. The police agreed not to question W while they transported him to Des Moines.

On the trip, W told the officers in the car that he would talk to them about the crime after he arrived at his destination and spoke to his attorney. Nonetheless, an officer deliberately sought to elicit incriminating information from W by giving a so-called "Christian burial speech."⁹⁴ Later during the ride, presumably as the result of the officer's remarks,⁹⁵ W made incriminating statements and led the police to the body of the victim.⁹⁶

The Supreme Court, per Justice Potter Stewart, held that W's incriminating statements to the police during the trip were obtained in violation of the Sixth Amendment. Adversary judicial proceedings had commenced against W, so his Sixth Amendment right to counsel had attached. The statements made were the result of deliberate elicitation (the Christian burial speech). And, although W could have waived his right to counsel, a valid waiver was not secured in this case.

Why was there no valid waiver here? The waiver had to be "knowing and intelligent," as well as voluntary. Wasn't it? W had been read his Miranda rights three times, so he knew that he had a right to assistance of counsel, and the Court agreed that he appeared to understand the warnings. Furthermore, the Court assumed that W's disclosures were voluntarily made, so there was no basis for contending that he was coerced to waive his right to counsel and talk.

The Court's simple answer to the question—"Why was there no valid waiver?" — was that there had been no waiver at all, valid or otherwise. The Court said that "waiver requires not merely comprehension but relinquishment, and [W's] consistent reliance upon the advice of counsel in dealing with the authorities refutes any suggestion that he waived that right." That is, W not only talked to his lawyers in both cities before he entered the police vehicle, but he told the officers in the car that he would tell them the whole story after he consulted with his Des Moines counsel.

However, W might have changed his mind after he heard the Christian burial speech. Does the Court's holding in Williams suggest, as Chief Justice Burger feared in dissent, that the Court "conclusively presumes a suspect is legally incompetent to change his mind and tell the truth until an attorney is present"?

The majority opinion did not go that far. It criticized the officers because, despite W's "express and implicit assertions of his right to counsel," the police sought to elicit incriminating statements without "prefac[ing] this effort by telling [W] that he had a right to the presence of a lawyer, and made no effort at all to ascertain whether [W] wished to relinquish that right." It would seem from this language that Justice Stewart meant that, once an accused asserts her right to counsel, a valid waiver is possible, but only if the officer reinforms the suspect of her right to counsel and secures an express waiver.

Concurring Justice Lewis Powell offered a different solution: A waiver could be obtained if the prosecutor proved that "police officers refrained from coercion and interrogation . . . and that [W] freely on his own initiative . . . confessed the crime." In short, under this approach, once an accused indicates a desire to talk to counsel, as occurred here, police-initiated conversation about the crime should cease. As discussed immediately below, Justice Powell's "solution" prevailed, but only for a time.

[C] Seeking Waiver

At one time, in Sixth Amendment jurisprudence, the Supreme Court devised a specific rule to deal with those circumstances in which an accused person—one against whom formal adversary proceedings have commenced as to a specific crime—unambiguously requests the assistance of counsel. This rule has since been abolished, but it is useful to see how the law has evolved.

In Michigan v. Jackson,⁹⁷ the Court held that once the Sixth Amendment right to counsel attaches and the accused thereafter requests assistance of counsel, the government may no longer deliberately elicit information from her until she has consulted with her counsel, unless she initiates further communications, exchanges, or...