Aedpa's Ratchet: Invoking the Miranda Right to Counsel After the Antiterrorism and Effective Death Penalty Act

JurisdictionUnited States,Federal
CitationVol. 86 No. 4
Publication year2021


David Rubenstein

Abstract: In Davis v. United States, the United States Supreme Court established a high standard to invoke the Miranda right to counsel, holding that a suspect must make a clear and unequivocal request for an attorney. Two years later, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which created a highly deferential standard of review for state court judgments challenged under federal habeas corpus jurisdiction. Generally, a state prisoner challenging the alleged deprivation of his Miranda right to counsel may obtain federal court relief under AEDPA only if his conviction in state court was based on an "objectively unreasonable" application of U.S. Supreme Court precedent. This Comment argues that the AEDPA standard of review effectively raises the bar for individuals to successfully invoke their right to counsel above what Davis requires, even outside the habeas context. This means that AEDPA's procedural standard of review has effected a shift in substantive law, even if courts did not intend that shift. To remedy this skewing of substantive law, this Comment proposes that the Court should discourage trial and direct-review courts from basing their decisions on AEDPA cases.


"I think I would like to talk to a lawyer. "(fn1) "Could I call my lawyer?"(fn2) "I think I need a lawyer."(fn3) "I think I might want an attorney."(fn4) "I think maybe I need to talk to a lawyer."(fn5) "I don't think I want to say anything more until I talk to a lawyer."(fn6)

A layperson hearing, reading, or speaking any of these phrases might reasonably understand them as requests for an attorney, which, in a police interrogation, would bar all further questioning without the presence of counsel. (fn7) However, courts have determined each of these phrases to be inadequate to invoke the right to counsel, and they are part of a long list of similar phrases deemed insufficient.(fn8)

The rights of a criminal suspect established in Miranda v. Arizona,(fn9) are deeply ingrained in the American popular consciousness.(fn10) Virtually anyone who has watched a contemporary police drama will know that suspects under arrest have a "right to remain silent,"(fn11) and that they have a right to a lawyer present during interrogation, whether or not they can afford one.(fn12) Most people likely do not know, however, how a suspect invokes his right to counsel. It turns out that doing so is fairly difficult.

The central reason for this difficulty arises from Davis v. United States.(fn13) In Davis, the United States Supreme Court held that police are free to question a suspect until he "clearly requests an attorney."(fn14) Applying this "clear and unequivocal request" rule, courts have often interpreted the phrases uttered by suspects as questions or comments about counsel, even when a layperson might interpret them as requests for counsel.(fn15) Phrases that employ tentative words, such as "might" or "could," tend to fall short of the Davis "clear request" standard.(fn16)

Exacerbating this trend is the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),(fn17) which imposes an extremely deferential standard for review of state court convictions by federal courts exercising habeas corpus jurisdiction. (fn18) Under AEDPA, federal courts cannot overturn a state court's conviction unless the state court rendered "a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court of the United States."(fn19) This entirely novel standard of review means that when a court decides a case under AEDPA, it is not saying what the law is; rather it is saying what the limit of the law is. That is, it is saying what constitutes a patent transgression of the law, and not how the law itself should be applied.

The distinction is crucial. As federal habeas courts have interpreted state Miranda rulings(fn20) through AEDPA's highly deferential prism, they have left undisturbed lower-court decisions holding phrases to be inadequate to invoke-phrases the habeas court might otherwise call a valid invocation. This process creates a body of invocation pseudo-precedent. That is, precedent that does not precisely state whether a phrase invokes the right to counsel, but instead explains that it was not an outright transgression of the law to hold that it did not invoke. That pseudo-precedent is then cited by state and federal courts reviewing purported invocations de novo, which are sometimes themselves cycled through the AEDPA filter. The final outcome of the interplay between Davis and AEDPA has been a shift in substantive law: a whittling away of the acceptable phrases for invoking the right to counsel to only the most obvious.(fn21) That is, a suspect is effectively required to say nothing other than the magic words, "I want a lawyer."

This Comment analyzes what I will call AEDPA's "ratchet effect" on the standard for invoking the Miranda right to counsel. Part I examines the Court's approach to the right to counsel before 1994. Part II discusses the Court's decision in Davis v. United States, and Part III explains the Antiterrorism and Effective Death Penalty Act, its history, and its deferential standard of review. Part IV discusses in detail the effect AEDPA has had on invocation jurisprudence, and examines two illustrative cases with a quantitative analysis of their effects. Finally, Part v proposes that the Court should discourage lower courts from basing their decisions on AEDPA precedent except when they apply AEDPA themselves.

i. In miranda v. arizona, the u.s. supreme court placed special emphasis on the right to counsel without stating how it is invoked

Access to legal representation is a key value of American criminal law. The Sixth Amendment to the Constitution specifically requires that all criminal defendants have access to an attorney during trial.(fn22) This was in part a reaction to English law of the mid-to-late 1700s, which barred assistance of counsel in most criminal cases.(fn23) Today, of course, the assistance of counsel is considered a fundamental part of any criminal proceeding in any American court. For its part, the U.S. Supreme Court has protected the Sixth Amendment right to counsel with a steadiness that is rare in constitutional criminal procedure.(fn24) Beginning in the 1930s, the Court began expanding the right to counsel by setting standards for counsel's performance(fn25) and strengthening waiver requirements.(fn26)

The Court has since reached beyond the Sixth Amendment to hold that, as a Fifth Amendment matter, a criminal defendant is entitled to the assistance of counsel in an adversarial setting even outside the courtroom, namely police interrogations. In Miranda v. Arizona,(fn27) the Court applied to interrogations the Sixth Amendment notion that a layperson would need an attorney to navigate a complicated and imposing legal system,(fn28) requiring that accused persons be afforded access to counsel, if requested.(fn29) It would be nearly thirty years, however, before the Court stated how a suspect should invoke the right to counsel that it articulated in Miranda.(fn30)

A. Miranda v. Arizona Established a Post-Arrest Right to Counsel for Criminal Suspects

The ruling of Miranda v. Arizona is quite familiar.(fn31) Barring certain key exceptions,(fn32) a criminal suspect in police custody must be informed of his or her right to remain silent and to consult an attorney.(fn33) The Court designed the Miranda holdings to protect a criminal suspect's Fifth Amendment right against self-incrimination, the concern being that a suspect in police custody may feel coerced into incriminating himself.(fn34) Because of that concern, once a suspect invokes one of the Miranda rights, police questioning must cease.(fn35) After a suspect invokes his right to counsel, questioning may resume only when the suspect has a lawyer present,(fn36) when fourteen days pass after release from custody,(fn37) or when the suspect himself reinitiates communication.(fn38) Otherwise, the police may not ask the suspect any more questions, and any of the suspect's statements taken in contravention of the rule are inadmissible in court.(fn39)

Miranda has come under fire from many angles. Legal commentators have attacked Miranda for years,(fn40) and politicians have long expressed discontent with the opinion.(fn41) Congress reacted to the decision by passing the Crime Control Bill, which attempted to effectively overrule Miranda in federal courts.(fn42) As early as 1974, the Court itself expressed concern that the Miranda ruling went beyond constitutional requirements.(fn43) By the mid-1980s, the Court, especially under Chief Justice William Rehnquist, had begun to scale back Miranda's protections by making it more difficult for a suspect to invoke the right to counsel(fn44) and limiting the contexts in which the Miranda rights attach.(fn45) More recently, the Roberts Court has demonstrated its own antipathy to Miranda by siding with the government in three major cases concerning the definition of custody,(fn46) the standard for invocation of Miranda rights,(fn47) and the now-familiar warnings police must give to suspects.(fn48) Yet, Miranda...

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