Concept
Consequences of a Violation
Reinitiation after a request for counsel
Consequences of a Violation
The preceding sections fix when police may and may not reapproach a suspect who has asked for a lawyer. A further question arises when officers go ahead anyway: what happens at trial to the statement they obtained? The answer has two parts that point in different directions. A statement obtained through police-initiated reinterrogation after a request for counsel is barred from the prosecution's case-in-chief, which is the primary remedy. That bar rests on a presumption and makes no finding that the statement was actually coerced, so its reach at trial is narrower than a rule of total exclusion. The first sub-section below takes the case-in-chief bar. The second takes impeachment, where Michigan v. Harvey supplies the remedial reasoning, although the Sixth Amendment rule on which that case arose has since been overruled.1
Case-in-Chief Exclusion
A statement obtained through police-initiated reinterrogation after a request for counsel cannot be used in the prosecution's case-in-chief, the part of the trial in which the prosecution offers its own affirmative proof of guilt. The result comes from two rules working together. Edwards v. Arizona holds that once an accused has invoked the right to have counsel present during custodial interrogation, a valid waiver cannot be established by showing only that he responded to further police-initiated custodial interrogation, even if he has been advised of his rights.2 Miranda v. Arizona supplies the other half: statements taken in custodial interrogation are assumed to be compelled, and the prosecution may not use them in its case-in-chief unless the suspect voluntarily, knowingly, and intelligently waived the rights the warnings describe.3 Read together, the rules mean that the answer to a forbidden reapproach cannot count as a waiver, so nothing lifts the presumption of compulsion, and the statement stays out of the prosecution's own proof.
The presumption reaches further than the ordinary voluntariness inquiry, and that breadth explains why the remedy applies even to an answer that may have been freely given. The Edwards rule is designed to prevent police from badgering a suspect into waiving rights he has already asserted, and it works by presuming his later statements involuntary even when he signs a waiver and the statements would pass the traditional test.4 A rule that required proof of actual pressure would have to be litigated after the fact, on the competing accounts of the officers who applied the pressure and the suspect who gave way to it. Exclusion from the case-in-chief avoids that contest and also removes the payoff for the conduct. An officer who knows that a confession obtained by reapproach cannot serve as the prosecution's proof gains nothing by pressing, so the rule reaches the interrogation room from the courtroom.
The same remedy appears where the Sixth Amendment supplies the right. In Massiah v. United States federal agents deliberately elicited incriminating statements from an indicted defendant in the absence of his counsel, and the Court held that his own words could not constitutionally be used against him at trial.5 The remedy for a violation of the Sixth Amendment right to counsel is likewise exclusion of the elicited statements from the prosecution's case-in-chief.6 Whichever amendment is in play, the first consequence of the misconduct is that the prosecution cannot build its own case on the statement.
The fourth step is a handoff: the case-in-chief bar settles what the prosecution may offer as its own proof and leaves open whether the statement has any use at all, which is the subject of the next sub-section.
Impeachment Use
Exclusion from the case-in-chief does not remove the statement from the courtroom for every purpose. In Michigan v. Harvey the defendant had a Sixth Amendment right to counsel when he gave the statement at issue, and the State conceded that police had transgressed the Jackson rule because the exchange could not be viewed as defendant-initiated interrogation.8 The question was whether the statement could nonetheless be used to impeach his inconsistent trial testimony. At trial the prosecutor used it on cross-examination to do exactly that. The Court held that a statement taken in violation of the Jackson prophylactic rule may be used to impeach the defendant's own testimony if the court finds that the statement was voluntary and that the defendant knowingly and intelligently waived his rights.9
Because Harvey arose under the Sixth Amendment, it applied a rule that needs a word of explanation. Michigan v. Jackson carried the Edwards reasoning into the Sixth Amendment: after a defendant requests counsel, any waiver given in a discussion initiated by police is presumed invalid, and evidence obtained under it is inadmissible in the prosecution's case-in-chief.10 That presumption has since been overruled. In Montejo v. Louisiana the Court concluded that the prophylactic measures built around Miranda are enough to guard against badgering, so officers may now seek a Sixth Amendment waiver freely as long as they are not conducting custodial interrogation.11 Harvey therefore cannot be cited for when police may reinitiate contact. It is taught here for its remedial logic, which survives because Edwards is the same kind of rule, a prophylactic rule designed to prevent police from badgering a defendant into waiving rights he has already asserted.12
The reasoning has two parts. The first concerns what the presumption is. A prophylactic rule is a protective layer placed around a constitutional right, and it can invalidate waivers that would be considered voluntary, knowing, and intelligent under the traditional case-by-case inquiry.13 Because it sweeps that broadly, breaching it does not necessarily mean the statement was actually involuntary or the waiver actually uninformed, just as breaching Miranda does not necessarily mean a statement was compelled.14 The second part concerns incentive. Case-in-chief exclusion already denies the prosecution the use of the statement as proof, which is what gives an officer a reason to press, and extending the bar to impeachment would let a defendant take the stand and contradict his earlier words without any risk of confrontation. The shield of the prophylactic rule is not to be turned into a license for perjury.15
The Court later applied the same logic to a violation of the Sixth Amendment itself. In Kansas v. Ventris the state conceded that the right to counsel had been violated when a planted informant heard a charged defendant's incriminating statements. The Court held the statements could still be used to impeach, reasoning that the violation occurred at the earlier critical stage and that barring impeachment would add little appreciable deterrence at a high price.19
On an exam stem the usual error is treating exclusion from the case-in-chief as exclusion for every purpose. A stem will often say the confession was suppressed and then have the defendant testify, and the answer turns on two questions: whether the confession was voluntary and whether the testimony contradicts it. Because the impeachment exception rests on the remedial logic of prophylactic rules, it applies to a breach of the Edwards bar just as it did to a breach of Jackson, so a voluntary statement taken through a forbidden reapproach may impeach inconsistent testimony.20
Case-in-Chief Exclusion
A statement obtained through police-initiated reinterrogation after a request for counsel cannot be used in the prosecution's case-in-chief, the stage of trial at which the prosecution offers its own affirmative proof of guilt. The result comes from two rules working together. Edwards v. Arizona holds that once an accused has invoked the right to have counsel present during custodial interrogation, a valid waiver cannot be established by showing only that he responded to further police-initiated custodial interrogation, even if he has been advised of his rights.22 Miranda v. Arizona supplies the other half: statements taken in custodial interrogation are presumed compelled, and the prosecution may not use them in its case-in-chief unless the suspect validly waived the rights the warnings describe.23 Read together, the two rules leave the prosecution with nothing to point to. The answer to a forbidden reapproach cannot count as a waiver, so nothing lifts the presumption of compulsion, and the statement stays out of the prosecution's own proof.
The exclusion is automatic because the Edwards presumption never asks whether the particular statement was in fact voluntary. The rule invalidates some waivers that would pass the traditional case-by-case inquiry into whether a waiver was voluntary, knowing, and intelligent.24 Two reasons explain that design. The functional reason is that a case-by-case inquiry would have to be fought out after the fact, on the competing accounts of the officers who applied pressure and the suspect who gave way to it. The incentive reason is that the rule exists to keep police from badgering a suspect into abandoning rights he has already asserted.25 An officer who knows that a confession gained by reapproach cannot serve as the prosecution's proof gains nothing by pressing. The Court has reasoned the same way about counsel denied at a post-indictment lineup, concluding that only a per se exclusionary rule would be an effective sanction to make authorities respect the right.26
The decision that gave the rule its name shows the result on its facts. In Edwards the detectives stopped questioning on the evening of January 19 when Edwards asked for counsel. They returned the next day without making counsel available, and not at his request, since he had told the detention officer he did not want to talk to anyone. The detectives gave him the warnings again, and he then listened to part of an accomplice's taped statement and made an incriminating statement that was used at his trial. The Court held that the statement, made without access to counsel and at the instance of the authorities, was not a valid waiver and was inadmissible, and it reversed the Arizona Supreme Court's holding that he had waived his right.27 Fresh warnings did not save the second session, because the problem was who started it.
The second illustration adds a fact that might seem to remove the problem. In Minnick v. Mississippi FBI agents interviewed Minnick on a Saturday, and he told them to come back Monday when he had a lawyer. An appointed attorney then met with him two or three times. On Monday a Mississippi deputy sheriff came to the jail, advised Minnick of his rights, and questioned him, and although Minnick declined to sign a waiver form, he described the escape and the events at the mobile home.28 The Court held that Edwards protection does not end once the suspect has consulted an attorney, and the statements to the deputy could not be used against him.29 The exclusion attaches to police-initiated questioning after the request, and a lawyer's earlier visit does not detach it.
The Sixth Amendment produced the same consequence for a time. Michigan v. Jackson carried the Edwards reasoning to charged defendants: after a request for counsel, a waiver given in a discussion initiated by police was presumed invalid, and the resulting evidence was inadmissible in the case-in-chief.30 Jackson was later overruled in Montejo v. Louisiana, which found the protections built around Miranda sufficient to guard against badgering, so it no longer governs when police may approach a charged defendant.31
The exclusion has a built-in limit, which Edwards itself stated. Had Edwards started the January 20 meeting, nothing in the Fifth or Fourteenth Amendment would have stopped police from listening to his volunteered statements and using them at trial, because without police-initiated interrogation there is no infringement of the right he invoked and no occasion to ask about waiver.32
On an exam stem the common error is asking whether the confession was voluntary when the question that matters is who started the second session. A signed waiver, repeated warnings, an unaware officer, and even a completed visit with a lawyer do not change the answer when police reapproached. When the accused started the contact, the bar has not been violated and the analysis moves to whether he then validly waived. The exclusion also governs only the prosecution's own proof, and whether a suppressed statement has any other use at trial is the question the next sub-section takes up.
Impeachment Use
Exclusion from the prosecution's case-in-chief settles only one use of a statement taken through a forbidden reapproach. The prosecution may still ask whether the statement can serve a narrower purpose, impeachment, which means confronting a testifying defendant with an earlier statement that contradicts what he says on the stand. Michigan v. Harvey answers that question for a voluntary statement taken in violation of a prophylactic counsel rule, meaning a protective rule that reaches further than the constitutional right it surrounds.34 The case arose under the Sixth Amendment and applied a presumption that has since been overruled, so it has to be read for its remedial reasoning, which is the part that survives.
The facts show how the question arose. Harvey was taken into custody on July 2, 1986, in connection with a rape and gave a statement to an investigating officer, and later that day he was arraigned and counsel was appointed.35 More than two months afterward he told a different officer that he wanted to make a second statement but did not know whether he should talk to his lawyer, and the officer told him he did not need to because the lawyer would get a copy of the statement anyway. Harvey then signed a rights waiver form.36 At his bench trial he testified in his own defense that during a brief fight he had thrown a barbecue fork to the floor, and on cross-examination the prosecutor used the second statement to show that he had left that detail out of what he told the police.37 The State conceded that police had transgressed the Jackson rule, because the exchange could not be viewed as defendant-initiated interrogation, and that concession left a single question: whether the statement could impeach.38
The Court held that a statement obtained in violation of this kind of rule may not be used in the prosecution's case-in-chief but may be used to impeach the defendant's own testimony if the court finds that the statement was voluntary and that the defendant knowingly and intelligently waived his rights.39 The decision reversed a state-court ruling that had barred impeachment use.40 The rule at issue came from Michigan v. Jackson, which carried the reasoning of Edwards v. Arizona into the Sixth Amendment: after a defendant requests counsel, a waiver given in a discussion initiated by police is presumed invalid, and evidence obtained under it is inadmissible in the case-in-chief.41 Jackson was later overruled in Montejo v. Louisiana, which found the protections built around Miranda sufficient to guard against badgering, so Harvey cannot be cited for when police may approach a charged defendant.42 What Harvey still teaches is the remedial logic, and that logic reaches the Edwards bar taught earlier in this chapter, because Edwards announced the same kind of prophylactic rule, one designed to keep police from badgering a defendant into waiving rights he has already asserted.43
The reasoning has two parts, and each answers a different objection to impeachment use. The first part concerns what a prophylactic presumption is. The Jackson presumption, like the Edwards presumption, invalidates some waivers that would count as voluntary, knowing, and intelligent under the traditional case-by-case inquiry.44 A breach of the rule therefore does not establish that the statement was in fact involuntary or that the waiver was in fact uninformed, any more than a breach of Miranda establishes that a statement was in fact compelled.45 A statement that may be perfectly reliable and freely given is then treated as Harris v. New York treats a statement taken in violation of Miranda, which may impeach a defendant who testifies to the contrary.46
The second part concerns the price of extending the exclusion further. Case-in-chief exclusion already takes away the prosecution's use of the statement as proof of guilt, and that loss is what gives officers a reason to stop pressing. Barring impeachment as well would add little further deterrence, while it would let a defendant take the stand, contradict his earlier words, and face no risk of confrontation with them.47 A shield that keeps the prosecution's proof out was not designed to protect false testimony from exposure. The Court made the same judgment later in Kansas v. Ventris about a violation of the Sixth Amendment itself, reasoning that the right is denied at the earlier critical stage and that barring impeachment would add little appreciable deterrence at a high price.48
Four Justices would have excluded the statement for impeachment as well. Justice Stevens, joined by Justices Brennan, Marshall, and Blackmun, argued in dissent that Jackson rested on more than the Edwards analogy.53 In his view Jackson was also rooted in Sixth Amendment decisions giving an indicted defendant the right to rely on counsel as a medium between himself and the State whenever the State deliberately tries to elicit information, a right that reaches even the State's opening question whether the defendant would like to waive his rights.54 Once the State initiates contact with a represented defendant outside counsel's presence, the dissent reasoned, a later waiver is not merely presumed invalid but invalid, and barring such contact simply respects the defendant's earlier choice to deal with the State only through counsel.55 That premise carries a consequence for remedy. If the violation strikes at the guarantee itself rather than at a protective layer around it, then letting the prosecution use the fruits anywhere at trial would give officers a reason to keep interviewing represented defendants privately.
The dissent is the opposing view and not the law. The majority treated the Jackson presumption as one more prophylactic rule, and later developments ran its way: Montejo removed the presumption, and Ventris allowed impeachment even where the Sixth Amendment right to counsel had actually been violated.56
On an exam stem the usual error is treating a suppressed statement as unusable at trial for every purpose. A stem will often say the confession was excluded and then have the defendant testify, and the answer turns on whether the defendant's testimony contradicts the statement and whether the statement was voluntary. Because Edwards is a prophylactic rule of the same kind as the Jackson rule, a voluntary statement taken through a forbidden reapproach after a request for counsel may impeach inconsistent testimony just as Harvey's statement did.57