Edwards v. Arizona

Justice Powell,

with whom Justice Rehnquist joins, concurring in the result.

Although I agree that the judgment of the Arizona Supreme Court must be reversed, I do not join the Court’s opinion because I am not sure what it means.

*489 I can agree with much of the opinion. It states the settled rule:

“It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case 'upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.’ Johnson v. Zerbst, 304 U. S. 458, 464 (1938). See Faretta v. California, 422 U. S. 806, 835 (1975); North Carolina v. Butler, 441 U. S. 369, 374-375 (1979); Brewer v. Williams, 430 U. S. 387, 404 (1977); Fare v. Michael C., 442 U. S. 707, 724-725 (1979).” Ante, at 482-483.

I have thought it settled law, as these cases tell us, that one accused of crime may waive any of the constitutional safeguards — including the right to remain silent, to jury trial, to call witnesses, to cross-examine one’s accusers, to testify in one’s own behalf, and — of course — to have counsel. Whatever the right, the standard for waiver is whether the actor fully understands the right in question and voluntarily intends to relinquish it.

In its opinion today, however, the Court — after reiterating the familiar principles of waiver — goes on to say:

“We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused [has] himself initiate[d] further communication, exchanges, or conversations with the police.” Ante, at 484-485 (emphasis added).

In view of the emphasis placed on “initiation,” see also ante, at 485-486, and n. 9, I find the Court’s opinion unclear. If read to create a new per se rule, requiring a threshold inquiry *490 as to precisely who opened any conversation between an accused and state officials, I cannot agree. I would not superimpose a new element of proof on the established doctrine of waiver of counsel.

Perhaps the Court’s opinion can be read as not departing from established doctrine. Accepting the formulation quoted above, two questions are identifiable: (i) was there in fact “interrogation,” see Rhode Island v. Innis, 446 U. S. 291 (1980), and (ii) did the police “initiate” it? Each of these questions is, of course, relevant to the admissibility of a confession. In this case, for example, it is clear that Edwards was taken from his cell against his will and subjected to renewed interrogation. Whether this is described as police-“initiated” interrogation or in some other way, it clearly was questioning under circumstances incompatible with a voluntary waiver of the fundamental right to counsel.

But few cases will be as clear as this one. Communications between police and a suspect in custody are commonplace. It is useful to contrast the circumstances of this case with typical, and permissible, custodial communications between police and a suspect who has asked for counsel. For example, police do not impermissibly “initiate” renewed interrogation by engaging in routine conversations with suspects about unrelated matters. And police legitimately may inquire whether a suspect has changed his mind about speaking to them without an attorney. E. g., State v. Turner, 32 Ore. App. 61, 65 , 573 P. 2d 326, 327 (1978); see State v. Crisler, 285 N. W. 2d 679, 682 (Minn. 1979); State v. Marcum, 24 Wash. App. 441, 445-446 , 601 P. 2d 975, 978 (1979). It is not unusual for a person in custody who previously has expressed an unwillingness to talk or a desire to have a lawyer, to change his mind and even welcome an opportunity to talk. Nothing in the Constitution erects obstacles that preclude police from ascertaining whether a suspect has reconsidered his original decision. As Justice White has observed, this Court consistently has “rejected any paternalistic *491 rule protecting a defendant from his intelligent and voluntary decisions about his own criminal case.” Michigan v. Mosley, 423 U. S. 96, 109 (1975) (White, J., concurring in result). 1

In sum, once warnings have been given and the right to counsel has been invoked, the relevant inquiry — whether the suspect now desires to talk to police without counsel — is a question of fact to be determined in light of all of the circumstances. Who “initiated” a conversation may be relevant to the question of waiver, but it is not the sine qua non to the inquiry. The ultimate question is whether there was a free and knowing waiver of counsel before interrogation commenced.

If the Court’s opinion does nothing more than restate these principles, I am in agreement with it. I hesitate to join the opinion only because of what appears to be an undue, and undefined, emphasis on a single element: “initiation.” As Justice White has noted, the Court in Miranda v. Ari *492 zona, 384 U. S. 436 (1965), imposed a general prophylactic rule that is not manifestly required by anything in the text of the Constitution. Id., at 526 (White, J., dissenting); see Michigan v. Tucker, 417 U. S. 433, 443-444 (1974). Miranda itself recognized, moreover, that counsel’s assistance can be waived. 384 U. S., at 475 (opinion of Warren, C. J:). Waiver always has been evaluated under the general formulation of the Zerbst standard quoted above. My concern is that the Court’s opinion today may be read as “constitution-alizing” not the generalized Zerbst standard but a single element of fact among the various facts that may be relevant to determining whether there has been a valid waiver. 2

Justice White noted in Michigan v. Mosley :

“Although a recently arrested individual may have indicated an initial desire not to answer questions, he would nonetheless want to know immediately — if it were true — that his ability to explain a particular incriminating fact or to supply an alibi for a particular time period would re-' suit in his immediate release. Similarly, he might wish to know — if it were true — that (1) the case against him was unusually strong and that (2) his immediate cooperation with the authorities in the apprehension and conviction of others or in the recovery of property would redound to his benefit in the form of a reduced charge.” 423 U. S., at 109, n. 1 .

In Michigan v. Mosley , of course, the question was whether a suspect who had invoked his right to remain silent later could change his mind and speak to police. The facts of Mosley differ somewhat from the present case because here petitioner had requested counsel. It is nevertheless true in both cases that “a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.” Id., at 102 (opinion of Stewart, J.).

Such a step should be tahen only if it is demonstrably clear that the traditional waiver standard is ineffective. There is no indication, in the multitude of cases that come to us each Term, that Zerbst and its progeny have failed to protect constitutional rights.