You have a right to a lawyer—but can't assert it yet

|The Volokh Conspiracy |

The Supreme Court of Pennsylvania handed down an opinion on Tuesday in Commonwealth v. Bland that addresses whether you can assert your Miranda rights before you are questioned. Under the famous decision in Miranda v. Arizona, if you are brought into custody and you are questioned, you can respond by asking to have a lawyer present for any questioning. If you do that, the cases say, the questioning has to stop. The police can't even try to question you again until you have been out of custody for 14 days.

But consider a wrinkle. What happens if you ask for a lawyer—in the argot of the caselaw, you "assert your right to counsel"—long before you are questioned? Does that count? Can you assert your right to counsel, forcing the police not to try to question you, before they have even tried?

In Bland, the defendant was arrested in Florida on a warrant for homicide that occurred in Philadelphia. After Bland was in custody, Bland's lawyers had Bland sign a form, then given to the police in Philadelphia, that said the following:

PLEASE BE ADVISED THAT I DO NOT WISH TO SPEAK WITHOUT AN ATTORNEY PRESENT.

I WISH TO BE REPRESENTED BY A LAWYER. UNTIL SUCH TIME AS I HAVE AN OPPORTUNITY TO FULLY DISCUSS THE DETAILS OF MY CASE WITH MY LAWYER, I STATE THE FOLLOWING TO YOU: I DO NOT WISH TO BE QUESTIONED OR HAVE ANY DISCUSSION WITH THE POLICE. I DO NOT WISH TO SPEAK TO YOU WITHOUT MY ATTORNEY PRESENT.

I WILL NOT WAIVE OR GIVE UP ANY OF MY RIGHTS UNDER MIRANDA V. ARIZONA, NOR WILL I GIVE UP ANY OF MY PENNSYLVANIA OR FEDERAL CONSTITUTIONAL RIGHTS EITHER ORALLY OR IN WRITING WITHOUT THE PRESENCE OF MY LAWYER.

Bland was then brought from Florida to Pennsylvania to face charges. Six days after he had signed the form expressing his wish to assert his right to counsel, Bland was questioned about the crime without a lawyer present. He was first given his Miranda warnings and waived his rights, despite what the earlier form had said about his demand to see a lawyer. The questioning led to a confession, raising the issue of whether the confession was admissible.

Under the rules of Miranda, the admissibility of the confession depended on whether the assertion of the right to counsel was valid. If the assertion was valid, the police could not later approach Bland and ask him to waive his Miranda rights; the waiver would therefore be improper and the confession suppressed. But if the assertion didn't "count" for Miranda purposes, given that the questioning did not occur until six days later, then the confession was admissible.

The Supreme Court of Pennsylvania held that Bland's assertion of the right to counsel was not valid and that his confession was admissible. To have the full effect of asserting the right to counsel, the court held, "an invocation of the Miranda-based right to counsel must be made upon or after actual or imminent commencement of in-custody interrogation." You can't invoke the right long ahead of time.

From the majority opinion:

[R]ecent complements of Justices of the Supreme Court of the United States have sent a plain signal that the Miranda-based right to counsel should be constrained according to its express justifications, namely, to counterbalance the coercive environment of custodial interrogation which had been emphasized in Miranda, 384 U.S. at 456-58, 86 S.Ct. at 1618-19. See Montejo, 556 U.S. at 795, 129 S.Ct. at 2090; McNeil, 501 U.S. at 182 n. 3, 111 S.Ct. at 2211 n. 3. Accordingly, our assessment, consistent with the weight of the authority, is that valid invocations of this Miranda right should be made in close temporal proximity to the circumstances giving rise to the relevant concern. Accord McNeil, 501 U.S. at 182 n. 3, 111 S.Ct. at 2211 n. 3 ("Most rights must be asserted when the government seeks to take the action they protect against.") . . .

To the degree that a further cost-benefit assessment on our part is appropriate for purposes of federal constitutional law, we agree with the Commonwealth that the burden of invoking the right to counsel in close proximity to custodial interrogation is outweighed by legitimate law-enforcement objectives. See generally Herring v.. United States, 555 U.S. 135, 141, 129 S.Ct. 695, 701 (2009) (explaining that "[t]he principal cost of applying [a new] rule is, of course, letting guilty and possibly dangerous defendants go free-something that offends basic concepts of the criminal justice system," and thus, such a position "presents a high obstacle for those urging [the new rule's] application" (citation and quotes omitted; alterations added)). In weighing the competing considerations of extended preemptive Fifth Amendment protections versus effective law enforcement, it is our conclusion that the widely-prevailing Miranda regime strikes an appropriate balance, and there is no presently apparent reason to expand it to encompass all custodial situations.

We acknowledge that there is some force to the argument that, when interrogation appears to be inevitable-such as in the present circumstances in which Appellee was accused of murder-custody should be the only prerequisite to invocation of Miranda counsel. However, Miranda and its progeny have been repeatedly extolled for the virtue in providing "bright-line" rules to both suspects and police in the custodial interrogation context. See, e.g., Arizona v. Roberson, 486 U.S. 675, 682, 108 S.Ct. 2093, 2098 (1988) (praising the "clear and unequivocal" guidelines Miranda provides to the law enforcement profession); Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 494 (1984) (commending the bright-line rule of Edwards ). Obviously, this advantage would be seriously undermined by individualized and varying analyses as to which crimes or factual circumstances would justify the belief that questioning is inevitable.

We also recognize Appellee's argument that his approach is supported by the broader language employed by the Supreme Court of the United States in Miranda. We cannot overlook, however, that the direction set by Miranda has been altered over the ensuing decades, apparently in light of the predominance of different approaches to the balancing of individual rights with effective law enforcement. See generally Thomas P. Windom, The Writing on the Wall: Miranda's "Prior Criminal Experience" Exception, 92 VA. L.REV. 327, 335-37 (2006) (positing that "[t]hough Miranda has been upheld-indeed, even constitutionalized-its numerous refinements have strayed from the original idealistic creation of the Warren Court"). In terms of federal constitutional law, the direction, at this point, seems plain enough. Accord McNeil, 501 U.S. at 182 n. 3, 111 S.Ct. at 2211 n. 3; Alston, 34 F.3d at 1243-49; supra note 2.

Justice Todd dissented:

In my view, . . . the polestar principle established by [the caselaw] is that any invocation of the Fifth Amendment right to counsel by an individual while he or she is in custody must be honored before police can question that person. This is because, as these cases consistently recognize, an individual who is in custody is subject to the inherently coercive pressures attendant to that situation and its concomitant deleterious effect on the individual's ability to exercise free will and to make truly voluntary decisions. By contrast, in non-custodial situations, there is no danger that, in responding to police questioning, the compulsive pressure created by the circumstances of detention will lead to an involuntary waiver by the individual of his or her Fifth Amendment rights. This is consistent with the high Court's oft-expressed opinion that an individual who is not in custody possesses the freedom to terminate police questioning at any time, and, thus, can avoid the type of "police badgering" the high Court was concerned with preventing through the Miranda-Edwards line of cases.

On one hand, this new decision isn't a big surprise. The majority's approach is consistent with what other courts have been doing for a long time. See, e.g., Alston v. Redman, 34 F.3d 1237 (3d Cir. 1994). Still, I think it's an interesting issue.