Summer 2010-#4. Protecting the Fifth Amendment: Maryland v. Shatzer and Prophylactic Rule-Making in the Supreme Court's Miranda Jurisprudence.

Authorby Kyle C. Barry, Esq.

Vermont Bar Journal


Summer 2010-#4.

Protecting the Fifth Amendment: Maryland v. Shatzer and Prophylactic Rule-Making in the Supreme Court's Miranda Jurisprudence

THE VERMONT BAR JOURNALVolume 36, No. 2Summer 2010Protecting the Fifth Amendment: Maryland v. Shatzer and Prophylactic Rule-Making in the Supreme Court's Miranda Jurisprudenceby Kyle C. Barry, Esq.In Edwards v. Arizona,(fn1) the Supreme Court created a bright-line rule for deciding whether an accused who has invoked his right to counsel during a custodial interrogation has subsequently waived that right. The rule requires courts to presume that suspects who waive their rights during police-initiated questioning do so involuntarily when they previously requested counsel. Any subsequent incriminating statement is therefore inadmissible to prove the suspect's guilt.(fn2) Aside from the presence of counsel, the accused's own initiation of communication with law enforcement is the only means that Edwards provides by which the presumption of involuntariness will end.

This term, in Maryland v. Shatzer,(fn3) the Supreme Court placed a new limitation on the Edwards rule, holding that it does not to apply to suspects who have experienced a fourteen-day break in custody. Here, I address the significance of both the reasoning and holding of Shatzer. First, I illustrate how the Court's approach in Miranda(fn4)-related cases-of which Edwards and Shatzer are two-is unique relative to the Court's general constitutional jurisprudence, because it involves overt rule making and policy judgments that are unmoored from the Constitution itself. Next, I explain how this approach generated the results in Edwardsand Shatzer. Finally, I show how the Court's willingness to require a break in custody for a specific time period of fourteen days could influence future cases about whether Edwards protection was defeated by suspect initiated communication. I argue that clarifying the standard for determining when suspect initiation is sufficient to overcome Edwards is a cert-worthy endeavor the Supreme Court ought finally to pursue, and discuss possible ways in which the Court may rule.


In the last decade, the Supreme Court has clarified two previously uncertain aspects of its Miranda jurisprudence in arguably irreconcilable fashion. First, the Court affirmed what is now the generally accepted proposition that Miranda is a constitutional decision that binds the States and cannot be overruled by Congress.(fn5) Second, however, the Court has held that the rules created in Miranda and its progeny-e.g., the indelible "Miranda warnings"-are not themselves constitutionally required, but are mere "judicially prescribed prophylaxis" designed to protect the Fifth Amendment right against compulsory self incrimination.(fn6) As such, Miranda rules donot precisely track the contours of the Fifth Amendment such that a Miranda violationis necessarily a Fifth Amendment violation; Miranda is an overprotective court-created doctrine explicitly compelled by no authority beyond the Court itself. Yet these rules are immune from legislative repeal at both the state and federal level.

This authority to devise extra-constitutional prophylactic rules-assuming, for the sake of argument, its legitimacy-permits the Court to abandon its normal interpretive function and to engage in rule-making that is quintessentially legislative in nature. Since Marbury v. Madison,(fn7) the Court's normal role has been to interpret particular constitutional provisions in light of new factual circumstances, explaining how certain conduct (including state action) either violates or is protected by the Constitution. Judicial review of this kind has generated the sorts of rules that prohibit, for example, the suppression of corporate political speech, (fn8) the warrantless monitoring of tracking devices inside of a home, (fn9) and the sentencing of mentally retarded defendants to death.(fn10) These activities are unlawful as to state governments and Congress because they violate the First, Fourth, and Eighth Amendments respectively. To violate these rules is to violate the Constitution.

Judicially crafted prophylactic rules in the Miranda context are created and function differently. They are justified not by the Fifth Amendment itself, but only by their "prophylactic purpose" of protecting Fifth Amendment rights.(fn11) This is no subtle distinction. The task of creating rules designed to protect constitutional rights has nothing to do with, and is markedly different from, defining those rights. Rather than interpreting the Constitution to ascertain the meaning of its text, the Court must perform fact-intensive empirical evaluations and conduct cost-benefit analyses about the implications of certain rules in ways perhaps more typically employed by legislatures. The meaning of the Constitution is not at stake-indeed, it is presupposed, and the Court's job is to fashion rules that will give real-world effect to that meaning.

In the Miranda context, the goal is to design rules that "maintain 'the closest possible fit' between the rule and the Fifth Amendment interests [it] seek[s] to protect,"(fn12) or at least serve as a functional proxy for Fifth Amendment rights "most of the time."(fn13) This means that the success of Miranda and Edwards is primarily measured by the number of coerced confessions they suppress that otherwise would have been admitted-coerced confessions, of course, being the only thing with which the Fifth Amendment's Self-Incrimination Clause itself is concerned.(fn14) This requires the Court to make complex factual assessments about the nature of custodial interrogation and its psychological effects on criminal suspects.(fn15) And the Court draws these conclusions without the aid of fact gathering hearings or expert testimony, relying instead on the oral argument and written briefs of lawyers, experts in only the law.

In this adjudicatory mode, the Court held in Miranda that any custodial confession made without warning a suspect about his Fifth Amendment rights to counsel and to remain silent must be presumed involuntary,(fn16) and then extended that presumption in Edwards to waivers of Fifth Amendment rights by suspects who previously requested counsel.(fn17) No one disputes the absurdity of believing that every suspect who confesses without warnings, or waives his rights after first requesting counsel, is coerced into doing so. But since these rules explicitly do not announce a constitutional mandate, that is not the relevant test. Instead, the Court has decided, in its independent judgment, that the benefits of these rules outweigh their costs, and that incriminating statements excluded under these rules will have been coerced at least more often than not.

It is this latter, legislative-type approach to constitutional adjudication that explainsMaryland v. Shatzer,(fn18) the latest star added to the firmament of the Court's Miranda jurisprudence. In Shatzer, the Court considered whether the Edwards prophylactic rule protects the rights of an accused during an interrogation occurring two and one-half years after the accused asserted his Fifth Amendment right to counsel.(fn19) The Court emphasized that Edwards is the Court's"rule, not a constitutional command," and therefore it is the Court's "obligation to justify its expansion."(fn20) Shatzer limits rather than expands Edwards, creating a new rule that Edwards protection ends once a suspect has a fourteen day "break in custody." After a break in custody of sufficient duration, police may re-interrogate a suspect who previously invoked his right to counsel, and the suspect's Miranda waiver is not presumed involuntary. Instead, the waiver is valid if the state can show that it was knowingly and voluntarily made.(fn21) Shatzer adds this break in custody rule to the suspect's own initiation of law enforcement communication as the second way in which Edwards protection will end. Now, once a suspect invokes his right to counsel during a custodial interrogation, any subsequent waiver of that right is presumed involuntary unless the suspect is released from custody for fourteen days, or the suspect changes his mind on his own accord, and seeks out law enforcement personnel himself to speak with them about their investigation.(fn22)


Robert Edwards was arrested on January 19, 1976, in connection with a criminal complaint charging him with robbery, burglary, and first-degree murder. Once in custody, the police informed Edwards of hisMiranda rights, and Edwards then waived those rights and agreed to answer questions. Eventually, Edwards asserted that he wanted an attorney before speaking further, at which point the police ceased their questioning and took Edwards to the county jail. The next morning, investigators approached Edwards, still in custody, to question him again. They again informed Edwards of his rights, which he eventually waived before providing a confession.

Under Miranda, the test for whether Edwards' incriminating statements could be used against him was whether he knowingly and voluntarily waived his Miranda rights. But the Supreme Court rejected that approach in Edwards, finding that "additional safeguards" are required when police seek to interrogate a suspect who has once already requested counsel. The Court, therefore, replaced the fact intensive inquiry into whether a waiver was made...

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