SC Lawyer, March 2010, #2. Is It Admissible? Tips For Criminal Defense Attorneys on Assessing the Admissibility of a Criminal Defendant's Statements.

• Author: By John H. Blume and Emily C. Paavola

South Carolina Lawyer

2010.

SC Lawyer, March 2010, #2.

Is It Admissible? Tips For Criminal Defense Attorneys on Assessing the Admissibility of a Criminal Defendant's Statements

South Carolina Lawyer March 2010 Is It Admissible? Tips For Criminal Defense Attorneys on Assessing the Admissibility of a Criminal Defendant's Statements Part One By John H. Blume and Emily C. Paavola INTRODUCTION

Imagine that you have just been appointed to represent a client charged with murder. You immediately make an appointment to meet with him at the county jail. When you arrive for your appointment, however, you discover that two detectives have just obtained a waiver of Miranda rights, placed your client in a squad car and are currently out driving him around while they look for the murder weapon. When your client returns, you learn that during the car ride, the detectives gave your client a pen and some paper and asked him to write a letter apologizing to the victim's wife for killing her husband. Your client has written an incriminating two-page letter before you even had a chance to confer with him and advise him of his rights. This past term, the U.S. Supreme Court held that, under these facts, admission of the incriminating letter was not a violation of the Sixth Amendment right to counsel. Montejo v. Louisiana, 129 S.Ct. 2079 (2009). In doing so, the Court overruled Michigan v. Jackson, 475 U.S. 625 (1986), which previously barred police from initiating interrogation after the right to counsel had attached and was considered a core Sixth Amendment protection for criminal defendants.

After Montejo, what do you tell your next client with regard to his Sixth Amendment rights-assuming you make it to the station house before the police take him out for a drive? And what about your client's Fifth and 14th Amendment rights? Did what occurred here implicate those rights as well? The answer to this question is "yes." The admissibility of a criminal defendant's statement implicates several different constitutional safeguards, including the Fifth Amendment right against compelled self-incrimination, the Sixth Amendment right to counsel and the 14th Amendment's Due Process Clause. Each constitutional protection must be carefully considered and analyzed. This purpose of this article is to provide an overview of the basic questions to ask yourself in analyzing the various constitutional provisions under which a client's statements may be inadmissible. Part One of this article explains the relevant Fifth Amendment considerations. Part Two discusses the Sixth Amendment, the 14th Amendment's Due Process Clause and impeachment issues.

Was the statement obtained in violation of the Fifth Amendment?

The Fifth Amendment guarantees that "[n]o person. . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V; S.C. Const. Art. I, section 12. In Miranda v. Arizona, 384 U.S. 436 (1966), the U.S. Supreme Court presumed that interrogation in certain custodial circumstances is inherently coercive and held that statements made under those circumstances are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forgo those rights. Of course, as with most legal principles, Miranda's basic holding has a number of caveats and nuances. But, the Fifth Amendment analysis can be undertaken with a series of simple questions.

1. Was the suspect in custody?

Miranda and its progeny bar the admission of certain statements given by a suspect during "custodial interrogation" without a prior warning. Thus, the first question to consider is whether the suspect was in custody. All of the circumstances surrounding the interrogation must be considered (including events that occurred before, during and after the interrogation), and the ultimate inquiry is whether there has been a formal arrest or whether the suspect's freedom of movement has been restricted in any significant way. California v. Beheler, 463 U.S. 1121 (1983); Oregon v. Mathiason, 429 U.S. 492 (1977); Beckwith v. United States, 425 U.S. 341 (1976); State v. Peele, 298 S.C. 63, 378 S.E.2d 254 (1989); State v. Ridgely, 251 S.C. 556, 164 S.E.2d 439 (1968).

Courts have consistently stated that the "in custody" determination is governed by an objective test. In Stansbury v. California, 511 U.S. 318 (1994), the U.S. Supreme Court held that courts must examine "all of the circumstances surrounding the interrogation" and determine "how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her 'freedom of action." Id. at 322, 325 (citing Berkemer v. McCarty, 468 U.S. 420, 440 (1984)); see also, State v. Easler, 327 S.C. 121, 128, 489 S.E.2d 617, 621 (1997); Bradley v. State, 316 S.C. 255, 257, 449 S.E.2d 492, 493-94 (1994).

But certain personal characteristics may matter. The U.S. Supreme Court has never clearly indicated whether some specific characteristics of the suspect-such as age or mental status-should be considered in the analysis. In Yarborough v. Alvarado, 541 U.S. 652 (2004), the Court held that the state court's failure to consider Alvardo's age and prior experience with law enforcement was not an unreasonable application of clearly established federal law under the Antiterrorism and Effective Death Penalty Act of 1996. The Court reasoned that precedence "has not stated that a suspect's age or experience is relevant to the Miranda custody analysis, and counsel for Alvarado did not press the importance of either factor on direct appeal or in habeas proceedings." Id. at 666. But, the Court has never squarely addressed the merits of this question. If such an issue were to come before the Court in the future, it has been suggested that certain personal characteristics would be relevant to the custody determination in some contexts. Id. at 669 ("There may be cases in which a suspect's age will be relevant to the 'custody' inquiry under Miranda v. Arizona.") (O'Connor, J., concurring) (citations omitted); id. at 673-74 ("[T]he 'reasonable person' standard does not require a court to pretend that Alvarado. . . was the statistically determined 'average person'-a working, married, 35-year-old white female with a high school degree. . . [T]he precise legal definition of 'reasonable person' may, depending on the legal context, appropriately account for certain personal characteristics.") (Bryer, J., joined by Stevens, J., Souter, J., and Ginsburg, J., dissenting).

Thus, in determining custody, consider the following factors: * The location of the questioning * The duration of the questioning * The purpose of the questioning * The circumstances of the questioning * How the suspect got to the police station (i.e., did he come voluntarily or was he escorted by the police; how many police officers were present; whether any weapons were drawn) * Was the suspect's access to an exit blocked or was the suspect otherwise not free to leave? * The suspect's age, experience and mental statusSee, e.g., Berkemer, 468 U.S. 420; State v. Evans, 354 S.C. 579, 584, 582 S.E.2d 407, 410 (2003). Note that custody for Fourth Amendment purposes is not the same as custody for Fifth Amendment purposes. See Berkemer , 468 U.S. 420. In the context of roadside questioning, the suspect's "freedom of action [must be] curtailed to a degree associated with formal arrest" in order to trigger the requirement of Miranda warnings. Id. at 440 (internal quotations omitted); see also Peele, 298 S.C. 63, 378 S.E.2d 254 (the performance of field sobriety tests at the request of a police officer following a routine traffic stop does not trigger Fifth Amendment rights); State v. Morgan, 282 S.C. 409, 319 S.E.2d 335 (1984) (Miranda warnings are not required for statements made at the scene of a traffic accident to be admissible); but cf. Easler, 327 S.C. at 127, 489 S.E.2d at 620 (holding that the case did not involve a routine traffic stop where officers were advised that there had been an accident and went looking for an individual who had left the scene based on a description given by two eyewitnesses).

In State v. Evans, 354 S.C. at 584, 582 S.E.2d at 410, the S.C. Supreme Court held that Evans was in custody and should have been warned of her Miranda rights before she confessed to setting her trailer-home on fire and killing her three small children. After the fire, Evan's cousin drove her to the police station at the request of an arson investigator. Id. at 581, 582 S.E.2d at 408-09. Two male SLED agents questioned Evans in a small, back office for approximately three hours. Id. at 582, 582 S.E.2d at 409.Family members who had accompanied Evans to the station asked to come with her into the interrogation room, but the SLED agents refused. Id. During the interview, Evans gave several reasons for how the fire may have started, but the officers insisted that they did not believe any of her explanations.

Id. at 581, 582 S.E.2d at 409. A third, female SLED agent then questioned Evans alone for approximately 45 minutes to an hour. Id. at 582, 582 S.E.2d at 409. The female agent accompanied Evans to the bathroom during breaks. Id. Eventually, Evans told the female agent, "I dropped a lit piece of paper on the floor. . . I walked next door and waited until somebody saw the fire." Id. Evans then gave a more detailed confession to all three agents. Id.

The S.C. Supreme Court held that there was ample evidence to support the trial judge's determination that Evans was in police custody at the time of her statement. Evans, 354 S.C. at 584, 582 S.E.2d at 410. First, the trial judge found that Evans was not free to leave because agent Edwards accompanied her to the bathroom and because the agents would not permit her family members to go back to the interview room. Id. "Second, the place where the agents interviewed Evans also concerned the [trial] judge in that it was a back office in the police station." Id. Of course, no single factor is determinative. Even some interrogations that take place at the suspect's home may be custodial. See Oregon v. Elstad, 470 U.S. 298 (1985); Orozco v. Texas, 394 U.S. 324 (1969). "Third, the judge noted that the interview was lengthy, as it lasted three hours." Evans, 354 S.C. at 584, 582 S.E.2d at 410. Finally, "the judge was most concerned with the agent's purpose", saying that once the officers began challenging Evans's story, the circumstances changed from "just a routine inquiry" to something more. Id.

2. Was the suspect interrogated?

Miranda warnings are required if a suspect is both in custody and being interrogated. Thus, the second question to consider is whether the suspect was interrogated. This is not always as straightforward as it seems. In most cases it will be obvious; the police ask the suspect questions. But some cases present difficult questions. The Supreme Court has held that interrogation occurs when the police engage either in express questioning or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300-01(1980); State v. Franklin, 299 S.C. 133, 136, 382 S.E.2d 911, 912-13 (1989). Police actions are the functional equivalent of interrogation if the police's comments or actions were reasonably likely to result in an incriminating statement. Innis, 446 U.S. at 301; Franklin, 299 S.C. at 136, 382 S.E.2d at 913. The test is partially objective. The police officer's intent is relevant, but not determinative. Innis, 446 U.S. at 301 n.7 (The intent of police "may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response"). The Innis Court gave the following examples of what would constitute interrogation:

* The use of line-ups in which a coached witness picks the defendant as the perpetrator. * The use of a "reverse line-up" in which a defendant is identified by coached witnesses as the perpetrator of a fictitious crime, with the object of inducing him to confess to the actual crime of which he is suspected. * The use of psychological ploys and other techniques of persuasion, such as to posit the guilt of the subject, to minimize the moral seriousness of the offense, and to cast blame on the victim or on society.Id. at 299. Other courts have held that confronting a suspect with evidence against him also constitutes interrogation and is "precisely the kind of psychological ploy that Innis's definition of interrogation was designed to prohibit."

Nelson v. Fulcomer, 911 F.2d 928, 935 (3rd Cir. 1990); see also United States v. Pena, 897 F.2d 1075 (11th Cir. 1990); United States ex. Rel. Doss v. Bensinger, 463 F.2d 576 (7th Cir. 1972); United States v. Barnes, 432 F.2d 89 (9th Cir. 1970); Wainright v. State, 504 A.2d 1096 (Del. 1986); State v. Uganiza, 702 P.2d 1352 (Haw. 1985); Commonwealth v. Brant, 406 N.E.2d 1021 (Mass. 1980); Koza v. State, 718 P.2d 671 (Nev. 1986); People v. Ferro, 472 N.E.2d 13 (N.Y. 1984); State v. Mills, 170 S.E.2d 189 (N.C. 1969).

In State v. Caulder, 287 S.C. 507, 339 S.E.2d 876 (1986), the S.C. Court of Appeals held that Caulder had been interrogated by a medical doctor who examined scratches on his chest. 287 S.C. at 514, 339 S.E.2d at 880. Caulder was arrested for the murder and criminal sexual assault of Jean Iriel, who was found dead in the trunk of her abandoned car. During the booking process, law enforcement officers noticed scratches on Caulder's chest. Pursuant to a search warrant issued by the court, a medical doctor examined the scratches and estimated them to be between one and five days old. "During the course of the examination, and without first giving Miranda warnings, the doctor asked Caulder how he had received a particular scratch." Id. Over Caulder's objection, the doctor was later permitted to testify that Caulder stated he had received several of the wounds at work, but that he did not know how he got the particular scratch on his chest to which the doctor referred. Id. at 514-15, 339 S.E.2d at 880-81. The court held that "the solicitor and police should have known that [the doctor's] questions were reasonably likely to produce incriminating responses." Id. at 516, 339 S.E.2d at 881. Further, the fact that the questions came from a medical doctor, rather than a police officer, did not immunize the questions from Miranda scrutiny. Id. (citing Estelle v. Smith, 451 U.S. 454 (1981); State v. Woomer, 278 S.C. 468, 299 S.E.2d 317 (1982)). Finally, the court rejected the State's argument that Caulder's response was not incriminating, noting that the definition of "incriminating" refers to "any response-whether inculpatory or exculpatory-that the prosecution may seek to introduce at trial." Id. at 516, 339 S.E.2d at 882 (citing Innis, 446 U.S. at 302, n.5 ("The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination.")). Note that if a suspect does not realize that she is speaking with a police officer or government agent (e.g., a "snitch" in the jail cell), then it is unlikely there is custodial interrogation for Fifth Amendment purposes. SeeIllinois v. Perkins, 496 U.S. 292, 296 (1990); State v. Turner, 371 S.C. 595, 597, 641 S.E.2d 436, 437 (2007); State v. Sprouse, 325 S.C. 275, 283, 478 S.E.2d 871, 875-76 (1996); State v. Lynch, 375 S.C. 628, 636, 654 S.E.2d 292, 296 (Ct. App. 2007).

3. If the suspect was in custody and interrogated, was the suspect given the Miranda warnings?

If the tests for both custody and interrogation are met, the next consideration is whether the Miranda warnings were given. You should also consider two relatively narrow exceptions where the warnings are not required.

The Public Safety Exception applies when there is an objectively reasonable need to protect the police or the public from immediate danger. In New York v. Quarles, 467 U.S. 649 (1984), Quarles was arrested in a supermarket after a young woman identified him as her rapist and told police officers that he had just entered the store and was carrying a gun. Id. at 652-53. Officer Frank Kraft placed Quarles under arrest and discovered that he was wearing an empty shoulder holster. Id. at 653. Without advising Quarles of his Miranda rights, Officer Kraft asked where the gun was. Quarles nodded in the direction of some empty cartons and responded, "the gun is over there." Id. The court found that Miranda does not apply in situations in which police officers ask questions "reasonably prompted by a concern for the public safety." Id. at 656. In this context, the motivation of the individual officers involved does not matter. Id. "[T]he need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." Id. at 657.

The Booking Exception applies when law enforcement officers ask questions that are "routine," i.e., where the questions are necessary to secure the biographical data necessary to complete booking or pretrial services. Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990).

In Muniz, the defendant was arrested after he performed poorly on three standard field sobriety tests. Id. at 585. The officer transported Muniz to the police station where the booking process was recorded on videotape, but Muniz was not advised of his Miranda rights. Id. at 585-86. Muniz stumbled over questions regarding his name, address, height, weight, eye color, date of birth and current age. Id. at 586. The officer then asked, "Do you know what the date was of your sixth birthday?" Id. Muniz initially gave an inaudible reply and ultimately responded that he did not know the answer. Id. Muniz was then asked to perform each of the three sobriety tests that he had failed during the roadside stop. Id. Two of these tests required Muniz to perform tasks while counting from 1 to 9 and from 1 to 30. Id. Muniz again failed all three tests. Id. While performing the tests, Muniz attempted to explain his difficulties in performing the various tasks and often requested further clarification of the tasks he was to perform. Id. Finally, the officer asked Muniz to submit to a breathalyzer test. Id. Muniz refused and was only then advised of his Miranda rights. Id.

The Supreme Court held that Muniz's answers to questions about his name, address, height, weight, eye color, date of birth and current age were all admissible despite the lack of Miranda warnings because the questions were designed to secure "biographical data" necessary for routine police administrative purposes and did not force Muniz "to express the contents of his mind." Id. at 598 (quoting Doe v. United States, 487 U.S. 201, 210, n.9 (1988)). When Muniz was asked to provide the date of his sixth birthday, however, the Court held that this question was reasonably likely to elicit an incriminating response and therefore should have been suppressed. Id. at 600. On the other hand, most of Muniz's utterances in response to the officer's sobriety test instructions did not qualify as responses to custodial interrogation. Id. at 604, n.17. Aside from the officer's requests that Muniz count from 1 to 9 and from 1 to 30, the test instructions were "not likely to be perceived as calling for any verbal response and therefore were not 'words or actions' constituting custodial interrogation." Id. at 603. Instead, the officer's instructions were necessarily attendant to legitimate police procedure, and Muniz's utterances in response to these instructions were admissible. Id. at 605; compare State v. Clute, 324 S.C. 584, 592, 480 S.E.2d 85, 89 (S.C. App. 1996) (where State conceded that the audio portion of the videotaped field sobriety tests wherein Clute recites the alphabet was improperly admitted over Clute's objection) (overruled on other grounds by State v. Aleksey, 343 S.C. 20, 538 S.E.2d 248 (2000)).

4. If Miranda warnings were given, were the warnings adequate?

In the absence of circumstances sufficient to support either the Public Safety Exception or the Booking Exception, a suspect in custody may not be subjected to interrogation unless she is informed of her Miranda rights. See, e.g., State v. Kennedy, 325 S.C. 295, 303, 479 S.E.2d 838, 842 (Ct. App. 1996) (citing Miranda, 384 U.S. 436).

No "talismanic incantation" of the warnings is required as long as the officer's explanation was the "fully effective equivalent" of the Miranda warnings. California v. Prysock, 453 U.S. 355, 359-60 (1981); State v. Singleton, 284 S.C. 388, 391, 326 S.E.2d 153 (1985), overruled on other grounds byState v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). Strict compliance with Miranda is not required if the warnings "touched the bases," and reasonably conveyed a suspect's rights. Duckworth v. Eagan, 492 U.S. 195, 203 (1989); State v. Easler, 322 S.C. 333, 338, 471 S.E.2d 745, 749 (Ct. App. 1996). But, the warnings must meaningfully convey the substance of the warnings. In Ridgely, 251 S.C. at 567, 164 S.E.2d at 444, for example, the S.C. Supreme Court stated that an officer's warning that the court would appoint a lawyer for the defendant "should he be charged with anything" did not comply with the requirements of Miranda.

This term, the U.S. Supreme Court will consider whether a suspect must be expressly advised of his right to counsel during questioning. In Florida v. Powell, the Florida Supreme Court ruled that the warnings given to Powell after his arrest were deficient under the Fifth Amendment because they merely informed him that he could "talk to a lawyer before answering any of our questions." Florida v. Powell, 998 So.2d 531, 540 (Fla. 2008). This instruction did not clearly inform Powell of his right to have counsel present during questioning. Id. Relying on Miranda, the Florida Supreme Court held that "the right to have counsel present at the interrogation is indispensible to the protection of the Fifth Amendment privilege," and that "the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning." Id. at 534 (quoting Miranda, 384 U.S. at 469-70). The State's petition to the U.S. Supreme Court for a writ of certiorari notes a recurring conflict among state and federal courts regarding the scope of Miranda's dictates on this issue and argues that those on the "explicit instruction required" side of the split are "demanding more from law enforcement than this Court ever envisioned or deemed necessary in Miranda." Petition for Writ of Certiorari, 2009 WL 759408, *20 (2009). The State advocates for a "reasonable clarity" test and argues that the warnings given to Powell meet that proposed test. Id. at *21. The Court heard oral argument on December 7, 2009.

5. If the warnings were adequate, did the suspect invoke his rights or waive his rights?

If the suspect was properly advised of his Miranda rights, the next consideration is whether the suspect invoked his rights or waived his rights.

6. If the suspect waived his rights, was the waiver "knowing and intelligent"?

A valid waiver of rights must be made knowingly and intelligently, meaning that "the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986). A waiver must also be made voluntarily. We discuss this in more detail in Part Two.

There is a presumption against waiver. North Carolina v. Butler, 441 U.S. 369, 373 (1979) ("The courts must presume that a defendant did not waive his rights; the prosecution's burden is great"). A waiver may not be presumed from the silence of the accused after the warnings and a subsequent statement. Id. (citing Miranda, 384 U.S. at 475); State v. McCray, 332 S.C. 536, 546, 506 S.E.2d 301, 306 (1998) ("A valid waiver of the right to counsel will not be presumed simply from the silence of the accused after Miranda warnings are given. The record must show that the accused was offered counsel but intelligently and knowingly rejected the offer").

A valid waiver does not, however, necessarily have to be express. Butler, 441 U.S. at 373. ("An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but it is not inevitably either necessary or sufficient to establish waiver"). In some cases, waiver may be inferred from the actions and words of the person interrogated. Id; compare State v. Doby, 273 S.C. 704, 708, 258 S.E.2d 896, 899 (1979) (holding that a signed waiver of rights form is not conclusive as the State still must prove a knowing and voluntary waiver) withState v. Simmons, 384 S.C. 145, 682 S.E.2d 19 (Ct. App. 2009) (holding waiver was valid where officers testified that Simmons verbally agreed to waive his rights and stated that he was familiar with how the system worked, but he was not asked to sign a waiver of rights form).

Whether a waiver has occurred is determined by a totality of the circumstances test. Butler, 441 U.S. at 374-75 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)) ("The question of waiver must be determined on 'the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused'"). This is a subjective test, and the defendant's particular background, experience and characteristics are relevant considerations. Id. at 375.

A suspect does not have to be aware of the scope of the interrogation for the waiver to be valid.Colorado v. Spring, 479 U.S. 564, 577 (1987) ("[A] suspect's awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege."); see also State v. Crawley, 349 S.C. 459, 463-64, 562 S.E.2d 683, 685 (S.C. App. 2002) (officer's admission that she did not tell defendant the subject of the investigation before she signed the Miranda waiver did not affect the voluntariness of the confession). In Spring, the U.S. Supreme Court held that the failure of law enforcement to inform the suspect of the subject matter of the interrogation did not render the waiver invalid. 479 U.S. at 577. But the Court specifically noted that it was "not confronted with an affirmative misrepresentation by law enforcement officials as to the scope of the interrogation." Id. at 576, n.8. The Court pointed out that the lower courts had made no finding of official trickery. As such, the Court did not reach the question of whether a waiver of Miranda rights would be valid in such a circumstance. Id.

Similarly, the suspect does have to be informed that an attorney is trying to reach him in order for the waiver to be valid.Moran, 475 U.S. at 422 ("Events occurring outside the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right"); see alsoState v. Drayton, 293 S.C. 417, 426-27, 361 S.E.2d 329, 334-35 (1987) (holding that the police's failure to inform the defendant of the public defender's office's request to speak with him did not render the waiver invalid). In Moran, the Supreme Court suggested that even deliberate deception of an attorney, "[a]lthough highly inappropriate," would not "affect a suspect's decision to waive his Miranda rights unless he were at least aware of the incident." 475 U.S. at 423.

Finally, the suspect does have the right to qualify his waiver. See Connecticut v. Barrett, 479 U.S. 523, 529 (1987). For example, the suspect can refuse to give a written statement, but agree to waive his rights with respect to an oral statement. Id.

7. If the suspect invoked his rights, which right(s) did the suspect invoke?

If the suspect invoked his right to silence, was the invocation "scrupulously honored"?

In Miranda, the Court held that "[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." 384 U.S. at 473-74 (emphasis added). The Court has explained that "[t]he critical safeguard" provided by the Miranda warnings is the knowledge of "a person's 'right to cut off questioning.'" Michigan v. Mosley, 423 U.S. 96, 103 (1975) (quoting Miranda, 384 U.S. at 474). Therefore, "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.'" Id. at 103-04. At a minimum, this means that the police must immediately cease questioning for a significant period of time and administer a new set of warnings prior to reinitiating interrogation. Id. at 105-06. Other factors may include whether the interrogation involved the same or different charges and the location of the second interrogation, and the identity of the officers involved in the interrogations.

If the suspect invoked the right to counsel, was the invocation clear?

As with the right to silence, a suspect seeking to invoke the right to counsel must do so unambiguously. An unambiguous request for counsel occurs when the suspect articulates her desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Davis v. United States, 512 U.S. 452, 459 (1994). This is an objective test. Id.

The S.C. Supreme Court has held that the statement, "[w]ell, I think I need a lawyer," is an "obvious" invocation of the right to counsel. State v. Kennedy, 333 S.C. 426, 430, 510 S.E.2d 714, 715 (1998); see also State v. Cox, 287 S.C. 260, 263, 335 S.E.2d 809, 810 (Ct. App. 1985) (defendant effectively asserted his right to counsel by saying, "I'll tell you about it when I talk to my lawyer"), overruled on other grounds byState v. Cox, 290 S.C. 489, 351 S.E.2d 570 (1986).

Note that a Fifth Amendment invocation of the right to counsel is not offense specific. In other words, it not only applies to the current charges, but it also applies to any additional or other charges about which the police may wish to ask the suspect. Arizona v. Roberson, 486 U.S. 675, 684 (1988) ("There is no reason to assume that a suspect's state of mind is in any way investigation-specific"); see alsoMcCray, 332 S.C. at 546-47, 506 S.E.2d at 306 (1998) ("Once an accused invokes the right to counsel for interrogation regarding one offense, he may not be approached regarding any offense unless counsel is present.").

If the invocation was unambiguous, did the police cease questioning immediately?

If the suspect unambiguously invokes his right to counsel, the police must cease questioning immediately. Edwards v. Arizona, 451 U.S. 477 (1981). Note that even if interrogation ceases immediately, and the suspect is permitted to speak with an attorney, the police still may not question the suspect without the presence of counsel unless the suspect initiates interrogation. Minnick v. Mississippi, 498 U.S. 146, 153 (1990) ("Consultation with an attorney does not remove the suspect from persistent attempts by officials to persuade him to waive his rights, or from the coercive pressures that accompany custody that may increase as custody is prolonged"); State v. Henderson, 286 S.C. 465, 468, 334 S.E.2d 519, 521 (Ct. App. 1985) ("Once the right to counsel is asserted, questioning of a suspect must cease until counsel is either obtained for the suspect or retained by him. Only in instances in which the suspect initiates subsequent conversations or communication with the investigating authority is a waiver of the right to counsel possible.") (citing, inter alia,

Oregon v. Bradshaw, 462 U.S. 1039 (1983)).

In the fall, the U.S. Supreme Court heard arguments in Maryland v. Shatzer. The case raises the issue of whether Edwards applies to an interrogation that takes place nearly three years after the initial invocation of the right to counsel.

8. Did the suspect subsequently initiate interrogation?

Even if a suspect has invoked her rights, law enforcement may nonetheless speak with her if she reinitiates communication subsequent to the invocation. See Edwards, 451 U.S. at 485 (1981). Whether a suspect has initiated interrogation turns on whether the suspect's comments or questions evidenced a willingness or desire to engage in a generalized discussion about the investigation. Bradshaw, 462 U.S. at 1045-46 (1983) (finding that a suspect's question about what was going to happen to him met this test because "it was not merely a necessary inquiry arising out of the incidents of the custodial relationship").

9. If the suspect initiated interrogation:

Even where the suspect has initiated interrogation, she is still entitled to adequate Miranda warnings, which must be validly waived. Thus, don't forget to reconsider:

Were the new warnings adequate? (see question #4) Was there a valid waiver? (see question #6)

John H. Blume is a Professor of Law and director of the Cornell Death Penalty Project at Cornell Law School. Emily C. Paavola is executive director of the Death Penalty Resource & Defense Center in Columbia.