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March 18, 2010

Supreme Court Draws a Bright Line for the Edwards Bar

In Maryland v. Shatzer, the Court definitively answered a question that had remained open since Edwards v. Arizona, regarding the effect of a suspect’s invocation of his right to counsel following Miranda warnings. In Edwards, the Court held that once a suspect in custody had requested to talk with a lawyer before speaking to the police, the police must cease questioning and they cannot reinitiate questing unless and until the suspect’s counsel is present. This requirement has come to be known as the “Edwards bar.” According to the Court, this additional level of prophylactic protection is necessary to preserve the integrity of an accused’s choice to communicate with police only through counsel. Without this additional protection, nothing prevents the police from simply badgering the suspect until he agrees to waive his right to have counsel present for questioning.

The issue not addressed in Edwards is, once the suspect invokes the right to counsel and the Edwards bar is raised, can anything short of providing counsel, such as releasing the suspect from custody, lower the Edwards bar and allow the police to reinitiate questioning? Until Maryland v. Shatzer, the Court had not addressed that issue directly.

In Shatzer, the suspect was serving a sentence for child-sexual-abuse conviction. While in jail, a detective wanted to question Shatzer on another, unrelated allegation of child abuse. Shatzer was read his Miranda rights, and he invoked his right to counsel and the police terminated the questioning. Some two and a half years later, while Shatzer was still incarcerated, the police once again sought to question him about this unrelated incident. This time, after reading him his Miranda rights, Shatzer waived his rights and agreed to talk with the police, eventually incriminating himself in this other incident.

In resolving this case, the Court addressed two issues. First, does a break in custody lower the Edwards bar so that the police can at some point reinitiate questioning without counsel being present, and if so, how long of a break in custody is required? Second, what amounts to a break in custody for Miranda purposes? The interesting thing about this case is how the Court took two very different and diametrically opposed approaches to resolving these issues.

On the question of whether a break in custody can lower the Edwards bar, Justice Scalia writing for the majority, held that a break in custody can lower the Edwards bar. Justice Scalia reasoned that once the suspect is released from custody, he is no longer in the police dominated atmosphere, cut off from his normal life and companions. He is free to seek the advice of friends, family and an attorney. He knows from past experience that he can stop the questioning by requesting counsel and the risk that his will would be worn down by police reinitiating questioning is highly unlikely. If the police were prevented from reinitiating questioning in such a case, the cost in terms of the inability to obtain and use voluntary confessions would be too great.

How long of a break in custody is necessary before the police can reinitiate questioning? Here the Court arbitrarily selected 14 days as the magic number. In selecting this as the time frame, Justice Scalia acknowledged that it was an arbitrary choice. He justified the Court’s authority to do this, noting that since the Edwards bar is not a constitutional mandate but a prescribed prophylaxis, the Court has the authority to impose a rule setting out its limits. Opting for this bright line rule of 14 days over a less specific fact bound and factor driven rule, Justice Scalia said that the police need a rule of certainty in order to know when renewed interrogation is lawful. So the clear holding of this case is that the police can reinitiate questioning after a break in custody of at least 14 days.

If this new rule was applied in Shatzer’s case, the police could not have reinitiated questioning because, of course, Shatzer was still in custody, serving time for the unrelated offense. And this is where the case gets even more interesting. In order to account for the fact that Shatzer was still in custody, the Court distinguishes custody for Miranda purposes from the type of custody that a suspect may be under in normal prison life. According to the Court, they are not the same. In prison-custody the suspect is able to do such things as move around and mingle with other inmates, visit the library, have visitors, get mail and phone calls, work in the prison, and otherwise interact with members of the prison community. In Miranda-custody on the other hand, the suspect’s freedom of movement is further restricted and his contact with the outside world, even the prison world, is further limited. The Court reasoned that in the two and a half years between questionings Shatzer was not in Miranda custody, but rather just prison-custody. Therefore, there had been a sufficient break, allowing the police to reinitiate questioning.

The arbitrariness of the 14 day break in custody and the distinction between Miranda-custody and prison-custody can, and likely will, be debated by commentators well into the future. What is of particular interest to me is how in choosing the 14 day rule, the Court opted for a bright line rule over a fact and factor based analysis, yet, when distinguishing between Miranda-custody and prison-custody, the Court went the opposite direction. Rather then applying the much brighter line rule that custody exists anytime a person’s freedom of movement is restrained, the Court chooses to examine the specific facts of this case and particular factors that might distinguish Miranda custody from prison custody. So why the bright line rule in one context and the fuzzy fact bound rule in the other?

Of course, one answer might be that this is just an example of outcome determinative justice. In order to reach the result it wanted, the Court simply had to take two different approaches. That may very well be the answer. It also may be that the Court simply feels more willing to create bright line rules for a law enforcement audience and less compelled to do so when it is the courts that will be sorting out the issues. Perhaps there is less of a need for a bright line rule on the custody question because, in order for any confession to be voluntary, the Miranda custody would have to be relativly short. This case is a good example of a Court less guided by principle then pragmatisim. It will also be interesting to see just how bright this 14 day line really is in future cases. If past history is any guide, many of the Court’s bright line rules in the Miranda context have dulled over time.

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