Reinitiation by the Accused

Reinitiation by the Accused

Edwards and Minnick together bar police from restarting custodial interrogation of a suspect who has asked for a lawyer, but the bar reaches only what the police do. Edwards wrote the limit into the rule itself: the accused is not subject to further interrogation until counsel has been made available to him, "unless the accused himself initiates further communication, exchanges, or conversations with the police."¹ Minnick carried the same exception forward, so that a suspect who has invoked counsel may be questioned without a lawyer present only if he reinitiates and waives.²

The gap follows from what the bar protects. The right Edwards enforces is the right to have counsel present at custodial interrogation, so when the accused starts the conversation and the police merely listen, no interrogation has taken place and the invoked right has not been infringed.³ Edwards said as much, observing that had he initiated the meeting, nothing in the Fifth and Fourteenth Amendments would have kept the police from listening to his volunteered statements and using them against him at trial.⁴ Miranda took the same view of volunteered statements, which it left outside the Fifth Amendment bar.⁵ A rule that went further would turn a safeguard into a disability. A suspect who had once asked for a lawyer could never change his mind, however freely, and a protection meant to keep the decision in his hands would take the decision away. The pressure the bar guards against is the pressure police apply by coming back and asking again, and when the suspect opens the conversation himself the police have not supplied that pressure.

Because accused-initiated contact lifts the Edwards bar without making any resulting statement usable, courts run the inquiry in two stages, a structure that comes from Oregon v. Bradshaw.⁶

Edwards itself failed at the first step. After he asked for counsel the officers stopped, but the next day they returned without making counsel available, and the Court found that this was not at his suggestion or request, since he had told the detention officer he did not want to talk to anyone.⁷ His agreement to talk after fresh warnings therefore did not amount to a valid waiver.⁸ The twin the Court itself described flips only the first fact: had Edwards been the one to call the meeting, the police could have listened to what he volunteered. The tempting error on an exam is treating initiation as if it were waiver. Initiation removes the Edwards bar, but if officers go on to question an accused who has opened the conversation, his answers come in only if the waiver inquiry also comes out in the prosecution's favor.⁹ The next section takes up the first step, including how the Court has separated a question that opens a discussion of the investigation from one that merely arises from the incidents of custody. The section after it turns to waiver.

Who Initiated Contact?

The first step in the two-step inquiry is a question of fact: after the suspect asked for a lawyer, whose act started the renewed communication? The answer controls the rest, because the bar from Edwards v. Arizona reaches only a reapproach by the police, and if the suspect, without being reapproached, takes action that shows a desire for further generalized discussion about the investigation, the bar disappears.¹¹ The cases fall into three groups. In the first, the police go to the suspect. In the second, the suspect plainly reaches out to the police. In the third, the suspect says something that could be heard either as an opening or as the ordinary remark of a person being held, and that is the group on which the Court itself has divided.

The inquiry turns on who started the contact because of what the bar is meant to prevent. When police return to a suspect in custody who has said he wants a lawyer, any agreement he gives afterward is tangled up with the effect of their return, and a court cannot tell whether he changed his mind freely or was worn down. Edwards shows the difficulty: after the detectives arrived and Edwards said he would talk, the Court observed that what prompted that decision did not appear in the record.¹² When the suspect starts the dialogue, the decision to reopen dealings with the police is visibly his own, and the police have applied no pressure to produce it. That is why the first step looks at the origin of the contact and gives no weight to the fact that the suspect eventually cooperated.

Edwards itself is the model of police initiation. After Edwards asked for counsel one evening, the officers ceased questioning, but without making counsel available they returned the next day.¹³ Edwards told the detention officer that he did not want to talk to anyone, and a guard told him that he had to speak with the detectives.¹⁴ The detectives said they wanted to talk and read the warnings again, and Edwards agreed and, after listening at his own request to part of an accomplice's taped statement, made an incriminating statement.¹⁵ The Court found that the return was not at his suggestion or request and that the interrogation occurred at the instance of the authorities.¹⁶ His request to hear the tape came after the detectives had already arrived and begun the session, so it could not make him the one who started it. Fresh warnings and his willingness to answer did not change who started the session either.

Minnick v. Mississippi repeats the pattern over a longer distance. On a Saturday Minnick told FBI agents to come back Monday when he had a lawyer, and on Monday a Mississippi deputy sheriff came to the San Diego jail to question him.¹⁷ The deputy came to Minnick, so the contact was the police's, and the Court held that the reinterrogation violated the rule.¹⁸ The meetings Minnick had with an appointed attorney in between did nothing to change who started the Monday session.

The two versions differ only in who set the meeting in motion, and that single fact moves the case from a waiver question to a violation of the bar. The harder cases involve a remark by the suspect that does not ask the police to come and talk. In Oregon v. Bradshaw, Bradshaw asked for an attorney and the officer ended the conversation, and later that day, during a ten- to fifteen-mile drive from the police station to the jail, Bradshaw asked, "what is going to happen to me now?"¹⁹ The officer told him he did not have to speak with the police because he had asked for an attorney, and the two then discussed where Bradshaw was being taken and the charge, after which the officer suggested a polygraph test.²⁰ Bradshaw agreed, and the next day he signed a waiver, took the test, and made incriminating statements.²¹ A plurality of the Court reasoned that the question showed a willingness and desire for a generalized discussion about the investigation and was not merely "a necessary inquiry arising out of the incidents of the custodial relationship."²²

The line the plurality drew gives a student a way to argue either side of a borderline remark. The question is whether the remark, as an officer would reasonably hear it, relates generally to the investigation or only to the logistics and needs of being held, and the plurality also looked to how the officer actually responded as evidence of how the remark was understood.²³ The Justices did not agree on what initiation means, including whether a question like Bradshaw's should suffice, so Bradshaw marks a contested boundary and does not establish that any question from the suspect reopens the dialogue.²⁴

A concurring opinion in Edwards sketched a different way of thinking about communications between police and a suspect, and it must be kept apart from the Court's holding. That opinion doubted that the Court meant to create a per se rule requiring a threshold inquiry into who opened the conversation, and it preferred to treat who initiated as one consideration within the general inquiry into waiver.²⁵ It also said that police do not impermissibly initiate renewed interrogation by routine conversations with a suspect about unrelated matters, and it would have allowed police to inquire whether the suspect has changed his mind.²⁶ Those are the views of the concurrence only. The majority made initiation by the accused part of its holding, and Edwards has been read to bar a police approach even when it consists only of an inquiry about the suspect's continued unwillingness to talk.²⁷

On an exam, the stem will often say that the suspect agreed to talk or did not object once the police approached. That fact belongs to the second step, which the next section takes up. The tempting error is to treat agreement after a police approach as initiation by the accused, when the first step asks who made the first move and a suspect who answers a police approach has not made it. Where a stem gives only an ambiguous remark by the suspect, identify the distinction Bradshaw drew, say that the Court divided over it, and argue it both ways by asking whether the remark would reasonably be heard as relating to the investigation.

Waiver After Initiation

Once the accused rather than the police started the renewed communication, the bar from Edwards v. Arizona no longer stops the conversation, but nothing yet makes the resulting statements usable. The second step of the inquiry asks whether the accused then waived his rights to silence and to counsel. Courts take this two-part structure from Oregon v. Bradshaw, in which eight Justices agreed that admissibility after a counsel request is decided by asking first who initiated and then whether a waiver followed.²⁹ The two steps answer different questions. Initiation asks who made the first move, while waiver asks whether the suspect, having made it, agreed with understanding to deal with the police without the lawyer he had requested. Initiation therefore opens the door to a waiver analysis and is not itself a waiver.

The reason for keeping the steps apart is that reopening a conversation can mean many things. A suspect who asked for a lawyer and later calls an officer over may want to learn what charge he faces, to hear what the police say they have, or to talk about the case, and none of those necessarily means he has decided to answer questions without counsel. The right that Edwards enforces is the right to have counsel present at custodial interrogation, so what the prosecution must show is a decision to give up that right.³⁰ A decision to give up the right cannot be read off the bare fact that talk began. If initiation alone sufficed, the one fact that lifts the bar would also supply the proof of waiver, and the prosecution would never have to show that the suspect understood what he was surrendering. Edwards reflects the same caution on the other side of the line: after a request for counsel, a valid waiver cannot be established merely by showing that the suspect responded to police-initiated interrogation, even though he was advised of his rights again.³¹

The standard at this second step is the one that governs Miranda waivers generally: the waiver must be voluntary, knowing, and intelligent.³² Johnson v. Zerbst, a Sixth Amendment decision, supplies the classic definition of what that means. A waiver is an intentional relinquishment or abandonment of a known right, courts indulge every reasonable presumption against finding one, and the answer depends on the particular facts and circumstances, including the accused's background, experience, and conduct.³³ A concurring Justice in Edwards resisted making initiation a threshold requirement, but he described the waiver inquiry in terms that fit the second step well: the ultimate question is whether there was a free and knowing waiver of counsel before interrogation commenced, answered as a question of fact in light of all the circumstances.³⁴ That framing looks at the suspect's understanding and the conditions around his decision, and has nothing to do with who spoke first.

Fresh warnings are usually part of the picture. They put the content of the rights in front of the suspect at the moment he is deciding, and the officer's account of what was said gives a court something concrete against which to measure his understanding.³⁵ Warnings are evidence on the waiver question and do not settle it, so a court also considers what the suspect said in response, his background and experience, and whether anything in the circumstances undercuts voluntariness. A lawyer need not be present for the waiver to count, because the presence requirement protects against reinterrogation the police start, and counsel need not be present if the detainee waives the right to counsel by initiating the exchange.

On an exam, the stem often ends once the suspect says he wants to talk, and the tempting error is inferring waiver from the conversation itself. A suspect's eagerness to talk proves initiation. It proves waiver only when the facts also show that he understood the right being given up and chose to give it up without pressure. Where a stem supplies fresh warnings, an express agreement, and no sign of coercion, say that both steps are met. Where it supplies initiation but is silent about warnings or hints at pressure, say that the second step is the contested one and name the missing fact.