Petitioners Brief — Oregon v. Bradshaw

Vv.

JAMES EDWARD BRADSHAW,

Respondent.

On Writ of Certiorari to the Court of Appeals

of the State of Oregon

BRIEF FOR PETITIONER

me A oe

po ee Wh

QUESTION PRESENTED

Does a police officer violate the limits upon

custodial interrogation established in Edwards uv.

Arizona, 451 U.S. 477 (1981), and Miranda uv.

Arizona, 384 US. 436 (1966), by reminding an

arrestee who inquires, “Well, what is going to

happen to me now?” of the arrestee’s previously

asserted request for counsel and resuming his

conversation with the arrestee, after the arrestee

acknowledges that he understands his rights?

TABLE OF CONTENTS

SEER EERE EEE EEE EEE EEE HERE EE EEE EEE EEE EEE EEE EEE HEHEHE EEE EEE HEHEHE EE

I. The determination of whether an accused

has waived his Fifth Amendment right to counsel

should be based upon the totality of the

circumstances, rather than the single-factor

test of Edwards v. Arizona. .................000000000000000

II. Even if Edwards v. Arizona established a

per se rule, the Oregon Court of Appeals

misapplied it in this case. ....................ccccccceeeeeeeee

EERE EEE EERE ETHER E EEE EEE EEE EERE EE EEE EEE EEE EEE HEHEHE EEEEE EEE EE EEE

ili

on KY SY = =

13

15

& &

TABLE OF AUTHORITIES

Cases Cited

Adams v. United States ex rel. McCann, 317 U.S. 269,

EEE AS IO

Caffo v. State, 247 Ga. 751, 279 S.E.2d 678 (1981) ........

Cobbs v. Robinson, 528 F.2d 1331 (2d Cir. 1975),

cert. denied 424 U.S. 947 (1976) ..............cccccccccceeeeeeees

Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981),

CO EE en

Commonwealth v. Harris, — Pa. Super. —_,

IT a adiioctanereccncntnnetienntabinsenteceseneennsecanees

Dillard v. State, 275 Ark. 320, 629 S.W.2d 291 (1982)...

Edwards v. Arizona, 451 U.S. 477 (1981).................c00

Escobedo v. Illinois, 378 U.S. 478 (1964) ................00

Fare v. Michael C., 442 U.S. 707 (1979) ..........cccccccceceeees

Hunt v. State, 632 S.W.2d 640 (Tex. Crim. App. 1982)..

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)...................

Leuschner v. State, 49 Md. App. 490, 433 A.2d 1195

(1981), cert. denied __. US. sere

Michigan v. Mosley, 423 U.S. 96 (1975)..............ccccceees

Michigan v. Tucker, 417 U.S. 433, 444 (1974).................

Miranda v. Arizona, 384 US. 436 (1966).........................

Nash v. Estelle, 597 F.2d 513 (5th Cir.), cert.

denied 444 U.S. 981 (1979) ........cccccccccceessceeeeeneeeeeeeees

North Carolina v. Butler, 441 U.S. 369 (1979)................

People v. Smith, 120 Cal. App.3d 746, 174 Cal. Rptr.

ST itcoateendeninsddtanbineensentesséannansienscecsenseccensnsecese

People v. Thomas, 98 Ill. App. 3d 852, 54 Ill. Dec. 235,

424 N.E.2d 985 (1982), cert. denied

nT sieeihds Most sencteniantendisensetadnpyasccssecessccoutessee

People v. Wegman, 101 Ill. App. 3d 634, 57 II. Dec.

< | |, Leena

iv

Rhode Island v. Innis, 446 U.S. 291 (1980).....................

State v. Blakney, —— Mont. —_,

EI TIT cccrticnensstnsnennnstiuidiendibiiisebiiiiiainnanes

State v. Collins, 30 Wash. App. 1, 632 P.2d 68 (1981)...

State v. Dominguez, 97 N.M. 592, 642 P.2d 195 (N.M.

SE, GEE ccccensenseseccscascsssesssesnsesnimecsnsenestgimnssnnnmenne

State v. Emery, 131 Ariz. 493, 642 P.2d 838 (1982) .......

State v. Grisby, 97 Wash. App. 2d 493, 647 P.2d 6

GED cccensecesasconnncesanescscnseesonsensdscnsrensnessaenencinqnsangnesacoosues

State v. Innis, __. R.I. —_, 433 A.2d 646 (1981)

(on remand), cert. denied _.. U.S. —___. (198 2).......

State v. Johnson, 318 N.W.2d 417 (Iowa 1982) ...............

State v. Killay, 430 A.2d 418 (R.I. 1981)........000.0

State v. McCloskey, 90 N.J. 18, 446 A.2d 1201 (1982)...

State v. Piatt, 132 Ariz. 145, 644 P.2d 881 (1981)..........

State v. Pittman, 210 Neb. 117, 313 N.W.2d 252

State v. Ruth, 102 Idaho 638, 637 P.2d 415 (1981)..........

Trest v. State, 409 So.2d 906 (Ala. Crim. App. 1981).....

United States ex rel. Kimes v. Greer, 541 F. Supp. 632

Ey SHI etcnscreswsansqnsinecnsesqnscencepumammeinbeenieiatnsnanmeess

United States v. Gordon, 655 F.2d 478 (2d Cir. 1981)...

United States v. Grant, 549 F.2d 942 (4th Cir.), cert.

Se Ce He CO cctccccccsocemicectntsoctnenmntcscseceee

United States v. Hinckley, 525 F. Supp. 1342 (D.D.C.

1981), affd. 672 F.2d 115 (D.C. Cir. 1982)................

United States v. Rodriguez-Gastelum, 569 F.2d 482 (2th

Cir.), cert. denied 436 U.S. 919 (1978) .............000c000

United States v. Thierman, 678 F.2d 1331 (9th Cir.

TSS Sa aE Pe ae

United States v. Webb, 633 F.2d 1140 (5th Cir. 1981)...

United States v. Wilson, 571 F.2d 455 (9th Cir. 1978)...

Vaughn v. State, 248 Ga. 127, 281 S.E.2d 594 (1981)...

Wantland v. State, 49 Md. App. 636, 435 A.2d 102 (1981)

cert. denied —. U.S. — — (1982)..........c.csecerreeeereeees 41

White v. Finkbeiner, 611 F.2d 186 (7th Cir. 1979)......... 20, 31

Wyrick v. Fields, _. U.S. —_, 51 U.S.L.W. 3411

(No. 82-158, Nov. 29, 1982)...............cccccsccssrrsesseereerees 13, 37

43

Constitutional and Statutory Provisions

ee CI, SEINE, Ts snsnesemnuptinanbesnadeteedesssunsationnnaionin 1

of FT ee OF 5 een 1

I a acne tneinteiasitl 1

Other Authorities

Fifth Amendment — Waiver of Previously Invoked

Right - Counsel, 72 Jour. of Crim. Law &

Criminology, 1288, 1303 n. 87 (1981) .............0:-0--0++ 7

Inbau and Reid, Criminal Interrogation and

Confessions (2d ed. (1967) ............:ccsseccssssesssesreessereeees 28

The Supreme Court, 1980 Term, 95 Harv. L. Rev.

ee See Oli SI ceratrticncinstnncnstseiemnasniiatinanenoummanierte 24

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the Oregon Court of Appeals

reversing Bradshaw’s conviction (Petition for Cer-

tiorari, at 10-13) is reported at 54 Or. App. 949, 636

P.2d 1011 (1981). The order of the Oregon Supreme

Court denying the State’s petition for review of the

decision of the court of appeals (Petition for Certior-

ari, at 14) is reported at 292 Or. 568, 644 P.2d 1129

(1982).

JURISDICTION

The decision of the Oregon Court of Appeals was

entered on December 1, 1981. The Oregon Supreme

Court denied the State’s timely petition for discre-

tionary review on February 3, 1982. The State’s

petition to this Court for a writ of certiorari was

timely filed 60 days thereafter, pursuant to Rule

20.1, on April 5, 1982. The Court’s jurisdiction is

based on 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment V:

“No person shall ... be compelled in any

criminal case to be a witness against himself

_— States Constitution, Amendment XIV, § 1:

No State shall . deprive any person

ol life, liberty, or property, without due process of

eae «

2

STATEMENT OF THE CASE

Bradshaw was convicted in an Oregon trial court

of manslaughter in the first degree, driving while

under the influence of intoxicants, and driving while

his operator’s license was revoked. His sole conten-

tion on appeal was that the trial court erred by

admitting evidence of his statement to a state police

polygraph examiner. In that statement Bradshaw

admitted that he was the driver of the vehicle

involved in the fatal accident which gave rise to the

criminal charges. Bradshaw contended that the

statement was obtained in violation of his rights

under the Fifth and Fourteenth Amendments.

On the evening of Saturday, September 13, 1980,

Bradshaw was found unconscious on the ground

between a cabin occupied by Lowell Reynolds and

the residence where Bradshaw was staying in

Rockaway, Oregon (Tr. 134-135, 144).! Bradshaw

had a large laceration on the back of his head. He

complained of head and chest pains, and was ex-

tremely intoxicated (Tr. 135). He claimed that he

had been knocked unconscious at a party in Rey-

nolds’ cabin and had found no one in the cabin when

he regained consciousness (Tr. 135-136). He was

taken to a hospital. The Rockaway police began

‘In this brief, “Tr.” refers to the transcript of the trial court proceedings in this

case; “J.A.” refers to the joint appendix; and “Ex.” refers to the transcript of

Bradshaw's tape-recorded statement to Corporal Hays on September 14, 1980,

Exhibit 2 in the pretrial proceedings and Exhibit 4 in the trial itself.

3

looking for witnesses to the alleged assault, includ-

ing Reynolds (Tr. 136-139).

On the afternoon of the next day, September 14,

Reynolds’ body was found in his wrecked pickup

truck (Tr. 85-86, 92). He had obviously been dead

for some time (Tr. 107-108). From the position of

the body, it appeared that Reynolds had been a

passenger in the vehicle when it had left the high-

way, struck a tree and an embankment, and ulti-

mately come to rest on its side, in a shallow creek

(Tr. 86-87, 103-104, 108-110). The cause of his death

was traumatic injury, coupled with asphyxia by

drowning (Tr. 168-169, 171, 178).

That evening, in the course of his investigation

into the accident, State Police Corporal Gerald Hays

went to Reynolds’ cabin, along with the Rockaway

police officer who was investigating the alleged

assault upon Bradshaw. At the cabin, they met

Bradshaw and discussed both the accident and the

alleged assault (J.A. 6-8; Tr. 13-14). Bradshaw’s

description of the events of the prior evening and

the people allegedly present in Reynolds’ cabin was

not consistent with information the police received

from others (J.A. 9-10; Tr. 15-16). Hays therefore

asked Bradshaw to accompany him to the Rockaway

Police Station to make a tape-recorded statement,

4

and Bradshaw did so willingly (J.A. 10-11; Tr.

16-17).

At the police station, Hays, who regarded Brad-

shaw as a “possible suspect,” but not a “focal sus-

pect,” in Reynolds’ death (J.A. 25, 27; Tr. 30, 32-33),

advised Bradshaw of his Miranda? rights and the

nature of the investigation he was conducting.

Bradshaw acknowledged that he understood these

matters and that he was free to leave (J.A. 45-47;

Ex, at 1-3). He then stated that on the previous

evening, he and Reynolds had been drinking in

Reynolds’ cabin. Bradshaw said that others had

joined them, and he had been struck from behind by

one of the later arrivals, after a heated exchange of

words (J.A. 48-53; Ex., at 3-8). He admitted buying

the beer and whiskey consumed on this occasion. He

indicated a willingness to face prosecution for

furnishing liquor to a minor, in view of the fact that

Reynolds was under legal drinking age (J.A. 59-60;

Ex., at 13-15). Bradshaw denied ever riding in

Reynolds’ truck, and he admitted that his right to

drive in Oregon had been revoked (J.A. 62-65; Ex.,

* Miranda v. Arizona, 384 U.S. 436 (1966). When asked inati

wentied: wt “avised Bradchaw of his rights if he was not in custody, Hays

“I wanted to be sure to cover every possible angle and that at some int

he may have said something that may have incriminated him, you A one

Being somewhat familiar with the law, but not an expert, I wanted to be

sure that I covered every angle. It's our policy that whenever we do

interview an individual on a serious or possible serious nature (sicl like

this, that his rights are made available.” (J.A. 26; Tr. 32).

5

at 16-19). He deciared himself ready to help the

police in their investigation into Reynolds’ death and

suggested that Reynolds may have met with “foul

play” at the hands of the person who allegedly had

struck Bradshaw (J.A. 66-69; Ex., at 21-23).

At this point, Hays placed Bradshaw under arrest

for furnishing liquor to a minor. Hays told Brad-

shaw that he was no longer free to leave and read-

vised him of his Miranda rights (J.A. 70-71; Ex., at

24-25). He informed Bradshaw that the police had

interviewed several of the persons whom Bradshaw

had named as witnesses to the alleged assault, and

that those persons had witnesses to the fact that

they had not been in Reynolds’ cabin at the time the

assault supposedly occurred. He then suggested, as a

“theory,” that Bradshaw had been driving Reynolds’

truck the night before, had run off the road because

he was intoxicated, had panicked and returned

home, and was fabricating the story of the assault

upon himself in order to account for the injuries he

had received in the accident (J.A. 71-72; Ex., at 25).

Bradshaw rejected Hays’ suggestion. He insisted

that he had witnesses to corroborate his story. He

stated, “And I do want an attorney before it goes

very much further” (J.A. 72; Ex., at 25-26).

Hays immediately terminated the conversation

and handcuffed Bradshaw (J.A. 14, 16; Tr. 20, 22).

6

Shortly thereafter, and apparently while still at the

police station, Bradshaw asked Hays, “Well, what is

going to happen to me now?” (J.A. 16; Tr. 22).

According to Hays’ uncontroverted testimony, the

following occurred:

“. . . I says [sic], “You do not have to talk to

me. You have requested an attorney and I don’t

want you talking to me unless you so desire

because anything you say — because — since you

have requested an attorney, you know, it has to

be at your own free will.’ I says [sic], ‘I can’t

prevent you from talking, but you understand

where your place — you know, where your

standing is here?’ and he agreed. He says [sicl, ‘I

understand,’ and — you know, and we had con-

versation from thenon... .”

In the course of the ensuing conversation, and

apparently while driving to the county jail, Hays

suggested that Bradshaw submit to a polygraph

examination to “clear this matter up and find out

actually what happened.” Bradshaw again expressed

a desire to cooperate with the police, and he agreed

to submit to this examination (J.A. 17-18; Tr. 23-24).

Late the next morning, at the county courthouse,

Bradshaw submitted to a polygraph examination

administered by State Police Trooper William

Rainey. Prior to the examination, Rainey advised

Bradshaw of his Miranda rights. Bradshaw execut-

ed a written consent to the examination (J.A. 30-33;

Tr. 42-45). After the examination, Rainey told

Bradshaw that in his opinion, Bradshaw had not

been truthful in his answers to questions about

7

having driven Reynolds’ truck. Bradshaw thereupon

admitted to Rainey that, on September 13, he had

passed out behind the wheel of the Reynolds’ truck

while driving Reynolds to a party, after the two of

them had consumed a considerable amount of

alcohol at Reynolds’ cabin. (J.A. 33-35; Tr. 45-47).

At the conclusion of the pretrial hearing on the

admissibility of evidence of Bradshaw’s statements

to Trooper Rainey, the trial court ruled as follows:

“I find that the statements made to Officer —

or, to Corporal Rainey were admissible. The

evidence establishes that there were no threats,

promises, or inducements, that the defendant was

properly advised of his rights and that he did

understand them and I also find that the evi-

dence supports a conclusion that although Mr.

Bradshaw had indicated his intent to have an

attorney before it goes very much further, that

within a short time after he made that statement

he was initiating conversations in spite of the

officer’s replying to him, ‘I can’t talk with you,’

and that I think that when I look at the total

context of this, that there was, in fact, a change

of this man’s mind, that it was not brought on by

any persuasion or argumentative kind of state-

ments that were improper in any way and that

the statements finally made to Officer Rainey —

or, to Corporal Rainey were voluntary and fol-

lowed a waiver and a knowing waiver of his right

to remain silent. . . .” (J.A. 42-43; Tr. 81-82).

During Bradshaw’s nonjury trial, his admissions

to Rainey were introduced into evidence by a stipu-

lation that Rainey’s testimony at trial would be the

same as it was in the pretrial hearing (Tr. 147-149).

Bradshaw was found guilty of first degree man-

8

slaughter, driving under the influence of intoxicants,

and driving while his license was revoked.

On Bradshaw’s appeal, the Oregon Court of

Appeals held that, notwithstanding the trial court’s

findings of fact, Bradshaw’s statements to Trooper

Rainey were erroneously admitted into evidence.

The Oregon court based its conclusion upon this

Court’s decision in Edwards v. Arizona, 451 U.S. 477

(1981). The court of appeals reasoned that Bradshaw

had not knowingly and intelligently waived the

right to counsel that he had previously asserted

during his conversations with Corporal Hays:

ee

. . . We do not construe defendant’s question

about what was going to happen to him to have

been a waiver of his right to counsel, invoked

only minutes before, or anything other than a

normal reaction to being taken from the police

station and placed in a police car, obviously for

transport to some destination. Though a conver-

sation ensued, [Hays] clearly took advantage of

the opening to reinterrogate defendant about his

culpability and suggest the lie detector test,

which was administered the next day.

“The administration of the lie detector test

and the subsequent interrogation of defendant

were not at his suggestion or request, but were at

the instance of authorities... .” State v.

Bradshaw, 54 Or. App. 949, 953, 636 P.2d 1011,

1013 (1982) [Petition for Certiorari, at 13].

SUMMARY OF ARGUMENT

I

In Edwards v. Arizona, 451 U.S. 477 (1981), the

9

majority of the Court indicated that once an arrestee

has invoked his Miranda right to the assistance of

counsel during custodial interrogation, it is a prereq-

uisite for a subsequent waiver of that right that the

arrestee “initiate” the further conversation which

leads to the waiver. The majority opinion in

Edwards has been interpreted, both by commenta-

tors and by lower courts, as declaring a strict “per se

rule” which absolutely prohibits reviewing courts

from finding a valid waiver of a previously asserted

right to counsel, unless the accused reopens the

dialogue with the authorities.

Interpreted this way, Edwards reaches an

anomalous result. Miranda was concerned with

protection of the accused’s Fifth Amendment privi-

lege against self-incrimination in the context of

custodial interrogation. It recognized an accused’s

right to remain silent and right to the presence of

counsel. Yet the majority opinion in Edwards

unaccountably establishes different tests for these

two aspects of the Fifth Amendment privilege. The

majority opinion suggests that waiver of a previous-

ly invoked right to counsel is governed by a test

different from the standard enunciated in Michigan

v. Mosley, 423 U.S. 96 (1975), for waiver of a previ-

ous assertion of the right to remain silent. In

Mosley, the Court held only that an arrestee’s

invocation of his rights under Miranda must be

10

scrupulously honored, but a waiver of previously

asserted rights could nevertheless be shown to have

been made intelligently and voluntarily, under the

totality of the circumstances in which the alleged

waiver occurred.

As a rationale for employing additional safe-

guards when an accused has invoked the right to

counsel, rather than the right to remain silent, the

Edwards majority suggested that the Court has

traditionally regarded the right to counsel as requir-

ing even greater protection than the right to remain

silent. Whatever the relative value of the two rights

may be, the standard for determining whether one

facet of the accused’s rights under Miranda has been

waived should not be different from the standard for

determining whether there has been a valid waiver

of the other.

Miranda itself suggests no such distinction. To

the contrary, the right it gave arrestees to the

assistance of counsel was intended to further the

basic right to remain silent during custodial interro-

gation. Logically, waiver of the derivative right to

counsel should not be tested by more stringent

standards than those used to judge waiver of the

basic right to remain silent. Moreover, none of the

Court’s pre-Edwards decisions requires the distinc-

tion which the Edwards majority suggests.

11

Prior to Edwards, most lower courts drew no

distinction between the standards to be applied in

assessing waivers of the two Miranda rights. This

fact at least indicates that the lower courts saw

little authority in this Court’s holdings for drawing

such a distinction. It even suggests that they saw

little practical necessity for requiring such a

distinction.

The Edwards doctrine should not be extended to

invalidate admissions made contemporaneously with

readvisal of Miranda rights and _ substantially

subsequent to initial conversations with police.

Admittedly, whether the accused “initiated” the

conversation with the authorities which followed his

invocation of the right to counsel is a very signifi-

cant factor to be considered in determining whether

he waived that right. Still, it should not be regarded

as absolutely dispositive. The accused may have

invoked the right to counsel for any number of

reasons. The authorities may have any number of

legitimate reasons for reopening conversation with

the accused. What constitutes “initiation” of any

subsequent conversation may itself be open to

dispute, as the present case demonstrates. And the

tone and content of any subsequent conversation

between the accused and the authorities obviously

affects the validity of the accused’s waiver of his

12

previously invoked right to counsel, regardless of

who initiated the conversation.

For all of these reasons, the test for finding a

valid waiver of a previously asserted Miranda right

to counsel should be the same as the one enunciated

in Michigan v. Mosley for finding a valid waiver of a

previously asserted Miranda right to remain silent:

was the accused’s invocation of the right scrupulous-

ly honored, and was there a knowing and voluntary

waiver of that right under the totality of the circum-

stances?

II

Even if Edwards v. Arizona establishes a “per se

rule” concerning waiver of a previously invoked

right to counsel, the Oregon Court of Appeals

misapplied that rule in this case. Bradshaw “initiat-

ed” the further conversation in this case, by inquir-

ing “[Whhat is going to happen to me now?” This

inquiry is sufficient “initiation” of further conversa-

tion to invoke the “totality-of-circumstances” test

which must be applied, under any reasonable

interpretation of Edwards, when the accused himself

initiates further conversation. See 451 U.S. at 486 n.

9. When, as in this case, the arresting officer delays

the resumption of substantive conversation with the

arrestee until he has obtained a further acknowledg-

ment that the arrestee understands that he is

waiving his previously asserted right, more is not

13

required to make the fruits of their subsequent

conversation admissible. In holding to the contrary,

the decision of the Oregon Court of Appeals is

manifestly at variance with this Court’s

post-Edwards disposition of Wyrick v. Fields, ——

U.S. —_— , 51 U.S.L.W. 3411 (No. 82-158, Nov. 29,

1982), and with all decisions of other jurisdictions

which discuss the concept of “initiation” suggested in

Edwards.

ARGUMENT

In this state criminal prosecution, the Oregon

Court of Appeals erroneously construed the Fifth

Amendment, applicable by virtue of the Fourteenth

Amendment. The court misread and misapplied

Edwards v. Arizona, 451 U.S. 477 (1981), when it

ruled that evidence of Bradshaw’s incriminating

statements to the state’s polygraph operator should

not have been admitted at his trial. The court held

that, when Bradshaw expressed to Corporal Hays a

desire to have “an attorney before it goes very much

further,” the police were forbidden to question him

any further without providing counsel unless defen-

dant himself initiated the incriminating conversa-

tion. The court concluded that subsequent conversa-

tions, including the polygraph examination on the

following morning, were conducted at the instance of

the police and in direct violation of defendant’s

rights. The fact that Bradshaw had asked Hays,

14

“Well, what is going to happen to me now?” after

initially requesting the presence of counsel, was

deemed insignificant by the court of appeals. Hence,

the court held that Bradshaw did not make a valid

waiver of rights prior to his_ incriminating

statements.

The court of appeals evidently perceived the

standard announced in HLdwards as a per se rule

forbidding any further police questioning after an

accused’s invocation of the right to counsel. If that

perception is correct, this case demonstrates the

error of that rule. This Court should take this

opportunity to reexamine Edwards in light of the

basic premises of Miranda v. Arizona, 384 U.S. 436

(1966), traditional concepts of waiver of constitution-

al rights, and the inherent faults in a per se rule.3

The proper focus of the inquiry here should be on

determining whether there was a voluntary, intelli-

gent, and knowing waiver of the right to counsel,

based upon an evaluation of the totality of the

circumstances. Such a test safeguards the rights of

the accused in a more realistic fashion without

eliminating the possibility of waiver. This test,

3Because Edwards provides an exception for defendant-initiated conversations

ee eee Soe aan cs Soca dd ape oe tae

initiation by the defendant, then the absolute nature of the restriction on

future police-initiated questioning certainly becomes a per se rule. According-

ly, when the term “per se rule” is used in this brief, it refers to a situation

without post-invocation initiation by the defendant.

15

rather than a_ single-factor test suggested by

Edwards, better achieves the goals of Miranda by

restoring credibility to the process of police question-

ing in the context of the Fifth Amendment.

Even if this Court does not modify the Edwards

rule, it should conclude nevertheless that the court

of appeals erred in applying the rule to this case. It

is evident that defendant, not the police, reopened

the dialogue and thereby unilaterally abandoned his

request for counsel. Edwards requires a multi-factor

analysis from that point forward. The totality of the

circumstances demonstrates that Bradshaw volun-

tarily, intelligently, and knowingly waived his

rights, up to an? including the point where he made

an incriminating admission to the polygraph opera-

tor.

I

The determination of whether an accused

has waived his Fifth Amendment right to coun-

sel should be based upon the totality of the

circumstances, rather than the single-factor test

of Edwards v. Arizona.

Any discussion of this case logically begins with

Escobedo v. Illinois, 378 U.S. 478 (1964), the prede-

cessor to Miranda v. Arizona, supra. Police in

Escobedo interrogated the accused prior to charging

him formally. They failed to inform him of his right

to silence, denied his request to consult with an

16

attorney, and informed him that they had convinc-

ing evidence of guilt. This Court concluded that

evidence of the suspect’s ensuing confession was

inadmissible, because the authorities denied his

request for counsel. The Court concluded:

. We hold only that when the process

shifts from investigatory to accusatory — when

its focus is on the accused and its purpose is to

elicit a confession — our adversary system begins

to operate, and, under the circumstances here, the

accused must be permitted to consult with his

lawyer.” 378 U.S. at 492.

Escobedo, however, left unanswered many

questions regarding police questioning of suspects,

e.g., how is the Fifth Amendment right to be protect-

ed and implemented, and what standards should

govern waiver of the right? In an effort to provide

clear guidelines, the five-member majority in

Miranda v. Arizona, supra, prohibited the govern-

ment from usimg statements arising out of custodial

interrogation absent “procedural safeguards” which

effectively protected the Fifth Amendment right

against self-incrimination. The Court set forth the

now-famous Miranda “warnings,” and required that

they be given unless the state devised other effective

means to inform accused persons of their right to

silence and to assure a continuing opportunity to

exercise it. The right to counsel, previously recog-

nized only as a Sixth Amendment concept, was held

to be a necessary adjunct to the Fifth Amendment.

17

Without being given the opportunity to have counsel

present, a custodiai suspect could make no intelli-

gent right-to-silence decision. 384 U.S. at 469-473.

Concerning the right to silence, the Court stated:

“Once warnings have been given, the subse-

quent procedure is clear. If the individual indi-

cates in any manner, at any time prior to or

during questioning, that he wishes to remain

silent, the interrogation must cease. At this point

he has shown that he intends to exercise his Fifth

Amendment privilege; any statement taken after

the person invokes his privilege cannot be other

than the product of compulsion, subtle or other-

wise. * * *.” (Footnote omitted.) 384 U.S. at

473-474.

In the same paragraph the Court similarly ad-

dressed the Fifth Amendment’s companion right to

counsel:

“* * * Tf the individual states that he wants

an attorney, the interrogation must cease until

an attorney is present. At that time the individu-

al must have an opportunity to confer with the

attorney and to have him present during any

subsequent questioning. If the individual cannot

obtain an attorney and he indicates that he wants

one before speaking to police, they must respect

his decision to remain silent.” 384 U.S. at 474.

The Court nevertheless made it clear that a

defendant may waive both his right to silence and

the attendant right to counsel, provided that the

waiver is made voluntarily, knowingly, and intelli-

gently. 384 U.S. at 475.

In Michigan v. Mosley, 423 U.S. 96 (1975), the

Court reexamined Miranda's prohibitive language

18

regarding later questioning of a suspect who had

invoked his right to remain silent. The police in

Mosley arrested defendant in connection with some

local robberies. After advice of Miranda rights,

defendant declined to answer any questions, and the

detective promptly ceased interrogation. Defendant

at no time indicated a desire for counsel. Several

hours later, another detective readvised defendant of

his Miranda rights and questioned him about an

arguably related homicide. Without seeking counsel

or reinvoking his right to silence, defendant admit-

ted his involvement in the killing.

Mosley claimed on appeal that the strict lan-

guage of Miranda prevented any further questioning

after his initial decision to remain silent. The Court

reiterated Miranda's attempt to establish a “set of

safeguards” to protect an arrestee’s Fifth Amend-

ment rights, but it observed the inherent ambiguity

of Mirandas prohibition of interrogation after

invocation of the right to silence. 423 U.S. at

99-102. Although Miranda stated that “the interro-

gation must cease,” the Court in Mosley noted that

Miranda said nothing about what circumstances, if

any, would permit a resumption of questioning.

Theoretically, the prohibition could be read literally

to forbid any subsequent interrogation at any time

or place on any subject, or to allow a resumption of

interrogation after a momentary respite. Either of

19

these extreme literal interpretations would lead to

“absurd and unintended results,” the Court observed.

423 U.S. at 102. While interrogation after brief

cessation would frustrate Miranda,

“* * * [alt the other extreme, a _ blanket

prohibition against the taking of voluntary

statements or a permanent immunity from

further interrogation, regardless of the circum-

stances, would transform the Miranda safeguards

into wholly irrational obstacles to legitimate

police investigative activity, and deprive suspects

of an opportunity to make informed and intelli-

gent assessments of their interests.” /d.

The Court concluded that

“* * * neither this passage nor any other

passage in the Miranda opinion can sensibly be

read to create a per se proscription of indefinite

duration upon any further questioning by any

police officer on any subject, once the person in

custody has indicated a desire to remain silent.”

423 U.S. at 102-103.

In following a “reasonable and faithful” interpre-

tation of Miranda, the Mosley majority found the

“critical safeguard” to be the person’s “right to cut

off questioning.” 423 U.S. at 103. It is that right

which Miranda requires to be “scrupulously hon-

ored.” Jd. The Court then reviewed the entire array

of circumstances leading to Mosley’s confession and

concluded that the police had “scrupulously honored”

his right to cut off questioning.

The Mosley majority expressly dealt only with

the invocation of the right to silence and, other than

quoting Miranda, made no attempt to examine a

20

similar situation involving the derivative right to

counsel. 423 U.S. at 101 n. 7. However, this Court’s

rejection of a per se rule in Mosley prompted a

number of lower courts to reject a per se prohibition

of requestioning after assertion of the Fifth Amend-

ment right to counsel. See, e.g., White v. Finkbeiner,

611 F.2d 186 (7th Cir. 1979), vacated and remanded

451 U.S. 1013 (1981), on remand 687 F.2d 885 (7th

Cir. 1982); United States v. Wilson, 571 F.2d 455

(9th Cir. 1978); United States v. Grant, 549 F.2d 942

(4th Cir.), cert. denied 432 U.S. 908 (1977).4

The reasoning of the court in White v. Finkbeiner,

supra, 611 F.2d at 192, is typical of that followed by

other courts prior to Edwards v. Arizona on the

question of “initiation”:

“* * * [T]here is no reason to conclude that as

a prerequisite to a waiver, the suspect must have

always initiated contact with the police [footnote

omitted]. There may be instances where for some

valid reason the police must contact the accused,

and a confession follows this contact. * * * Of

course, in those cases where the suspect does

initiate the waiver, it will be much easier for the

state to discharge its heavy burden of proving

waiver. But this does not mean that where the

police contact the suspect after a request for

counsel the prosecution is prohibited from ever

demonstrating a waiver.”

*See also United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir.), cert.

denied 436 U.S. 919 (1978); Cobbs v. Robinson, 528 F.2d 1331 (2d Cir. 1975),

cert. denied 424 US. 947 (1976); but see Nash v. Estelle, 597 F.2d 513 (5th

Cir.), cert. denied 444 U.S. 981 (1979).

21

In short, before Edwards, courts generally applied a

“totality of the circumstances” test to confessions

obtained after an invocation of the right of counsel.

Courts now agree, however, that Edwards uv.

Arizona, supra, drastically changed that approach.

In Edwards the Court unanimously agreed, albeit

in three separate opinions, that defendant’s state-

ment was obtained in violation of his Miranda

rights and thus was not admissible. The facts of the

case involved extremely suspect police procedures.

Arrested on murder, burglary, and robbery charges,

Edwards was advised of his Miranda rights and,

after some initial questioning, requested counsel.

The police then ceased the interrogation. When two

detectives asked to see defendant the next morning,

he told a guard that he did not wish to speak to

anyone. The guard replied that defendant “had to”

talk to the detectives. The police then readvised

defendant of his Miranda rights, and he ultimately

gave an incriminating statement.

The crux of the majority opinion in Edwards is

as follows:

“* * * | iIthough we have held that after

initially being advised of his Miranda rights, the

accused may himself validly waive his rights and

respond to interrogation [citation omitted], the

Court has strongly indicated that additional

safeguards are necessary when the accused asks

for counsel; and we now hold that when an

accused has invoked his right to have counsel

present during custodial interrogation, a valid

22

waiver of that right cannot be established by

showing only that he responded to further police-

initiated custodial interrogation even if he has

been advised of his rights [footnote omitted]. 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 himself initiates further communica-

tion, exchanges, or conversations with the police.”

451 U.S. at 484-485.

Cases decided by lower courts since Edwards

have interpreted this language as establishing a per

se rule prohibiting any requestioning of a defendant

after invocation of the right to counsel unless he

initiates the communication. See, e.g., United States

v. Hinckley, 525 F. Supp. 1342 (D.D.C. 1981), affd.

672 F.2d 115 (D.C. Cir. 1982); Vaughn v. State, 248

Ga. 127, 281 S.E.2d 594 (1981); State v. McCloskey,

90 NJ. 18, 446 A.2d 1201 (1982).5 According to

these cases, Edwards prohibits a “totality of the

circumstances” analysis unless the facts show that

the accused, not the police, renewed any colloquy

with the authorities. Here, of course, the Oregon

Court of Appeals similarly applied Hdwards in

suppressing defendant Bradshaw’s confession. For a

variety of reasons, any such per se rule in Edwards

°.See also State v. Dominguez, 97 N.M. 592, 642 P.2d 195 (N.M. App. 1982); Hunt

v. State, 632 S.W.2d 640 (Tex. Crim. App. 1982); United States ex rel. Kimes v.

Greer, 541 F. Supp. 632 (N.D. Ill. 1982).

23

should at this time be expressly abrogated by this

Court.

Miranda itself does not require the imposition of

a per se ruie which elevates “initiation” to the status

of a single controlling factor. Admittedly, Miranda

used different language to describe the procedure to

be followed when different rights were involved. If

the accused wishes to remain silent, “the interroga-

tion must cease,” whereas, if he requests counsel,

“the interrogation must cease until an attorney is

present.” 384 U.S. at 473-474. Nowhere, however,

does Miranda suggest that different standards

should obtain in determining whether a person has

waived either right after its assertion. If anything,

the contrary is suggested by Miranda’s discussion of

the two rights in the same sentence dealing with

waiver:

“If the interrogation continues without the

presence of an attorney and a statement is taken,

a heavy burden rests on the government to

demonstrate that the defendant knowingly and

intelligently waived his privilege against self-

incrimination and his right to retained or ap-

pointed counsel.” 384 U.S. at 475.

It is significant that the right to counsel in

Miranda is a derivative one. Because of the peculiar

circumstances of custodial interrogation, the

Miranda Court held that the Fifth Amendment

right to silence can best be safeguarded when

accompanied by the right to the presence of counsel.

24

Although the two rights are spoken of separately,

they both flow from the same source. If there is a

qualitative difference between the two, logic dictates

that the right to silence is paramount since the

Miranda right to counsel serves only as an adjunct,

albeit an important one, to the protection of the

Fifth Amendment privilege. Miranda provides no

basis for concluding that the converse is true and

that waiver of the right to counsel is subject to a

stricter standard than waiver of the right to silence.

However valuable the right to counsel may be in a

custodial setting, it remains auxiliary to the right to

silence under the Miranda analysis.

Also, as this Court recognized in Michigan uv.

Tucker, 417 U.S. 433, 444 (1974), Miranda's “safe-

guards [are] not themselves rights protected by the

Constitution.” The Miranda “right” to counsel is a

prophylaxis that enables suspects to exercise their

privilege against self-incrimination in an intelligent

manner. Edwards raises the derivative right to

counsel higher than the value it seeks to protect. It

not only gives the right to counsel greater worth

than the right of silence: it also imbues it with a

constitutional basis. EHdwards is, therefore, in direct

conflict with Miranda in this regard.?

®Both the defendant and the court of appeals relied only on the Fifth Amendment

and Miranda as the grounds for excluding the statement in this case. Thus,

any question of a purported Sixth Amendment right to counsel is not before

this Court.

1.See The Supreme Court, 1980 Term, 95 Harv. L. Rev. 93, 131 n. 59 (1981).

25

In Michigan v. Mosley, supra, the majority

opinion suggested that Miranda “distinguished

between the procedural safeguards” triggered by the

exercise of the right to silence and the exercise of

the right of counsel. 423 U.S. at 104 n. 10. The

distinction, however, was made in response to the

dissenting opinion’s suggestion that questioning a

person who has indicated a desire to remain silent

may not be resumed until counsel is present. The

Mosley majority responded by noting that Miranda

forbids reinterrogation until counsel is present only

when the accused has requested counsel, not when

he has merely refused to answer further questions.

Id. The majority carefully observed that a question

of waiver of counsel was not before it. Thus, it

neither suggested nor implied that a post-invocation

waiver of counsel should be judged by any test other

than the totality test applied to a post-invocation

waiver of the right of silence.

Justice White’s concurring opinion in Mosley

proposed, contrary to the above-summarized reading

of Miranda, that Miranda indeed “create[d] a per se

rule against further interrogation after assertion of

[the right to counsel].” 423 U.S. at 109-110. He

further suggested a rationale for such a per se rule

when the right to counsel is asserted and the right

to remain silent is not invoked:

26

“* * * [T]he reasons to keep the lines of

communication between the authorities and the

accused open when the accused has chosen to

make his own decisions are not present when he

indicates instead that he wishes legal advice with

respect thereto. * * * More to the point, the

accused having expressed his own view that he is

not competent to deal with the authorities with-

out legal advice, a later decision at the authori-

ties’ insistence to make a statement without

counsel’s presence may properly be viewed with

skepticism.” 423 U.S. at 110 n. 2.

Edwards cites this quotation with approval and

apparently incorporates the rationale into the later

decision. 451 U.S. at 485.8 However, the distinction

is flawed. It should be abandoned.

The dichotomy of the two rights assumes far too

much. It assumes that all defendants are the same,

that all custodial interrogations are alike, and that

the goals of Miranda can only be achieved through

uniformity, regardless of factual variety. Every

defendant is different and each custodial interview

possesses its own character. Although one may

assume that some defendants assert their right to

silence because they understand their right and

consider themselves capable of deciding their own

fate, the same cannot be said for all. The reasons for

talking or remaining mute are as varied as the

®Some post-Edwards cases also have incorporated this rationale. See, eg.,

Vaughn v. State, supra; State v. McCloskey, supra, State v. Collins, 30 Wash.

App. 1, 632 P.2d 68 (1981). On the other hand, there is a tendency to confuse

the two rights both in their bases and in the standard for waiver. See Penple v.

Smith, 120 Cal. App. 3d 746, 174 Cal. Rptr. 916 (1981).

27

arrestees themselves and their particular circum-

stances.

Similarly. it is reasonable to assume that some

defendants who invoke Miranda's right to counsel do

so through a conscious recognition of an inability to

act in their own best interests. It is just as reason-

able to assume, however, that other defendants do so

for many other reasons.? Some may be “street-wise”

and invoke counsel merely as a ploy to manipulate

the police. Others may simply use it as another way

of saying that they want to remain silent. Still

others may just be reacting spontaneously without

even momentary reflection on their competence to

proceed. It stands to reason that, for example, an

arrested ex-police officer ordinarily functions at a

different level of sophistication and awareness than

does a juvenile first offender; but a single-factor

approach fails to recognize this distinction.

Also, a defendant’s reaction depends largely on

the specifics of the questioning. .References to

culpability, accomplices, custodial status, and

possible negotiations may precipitate different

responses for wholly different reasons. Stated

simply, an absolute distinction between invocation of

the right of silence and invocation of the right of

counsel which fails to consider individual circum-

°Fifth Amendment — Waiver of Previously Invoked Right to Counsel, 72 Jour. of

Crim. Law & Criminology, 1288, 1303 n. 87 (1981).

28

stances is arbitrary and unrealistic. The distinction

does injustice to the careful balance of interests

between defendant and the state which Miranda

seeks to protect.

Edwards per se proscription of renewed question-

ing after a request for counsel presents significant

practical and theoretical problems. Generally, any

per se rule derives both its strength and its weak-

ness from its inflexibility. The rule suggested by

Edwards is no exception. Here, however, its nega-

tive features far outweigh any theoretical benefit.

In wholesale fashion, Edwards combines all

defendants and all interrogations into one general

category, irrespective of the obvious distinguishing

characteristics articulated above. This approach is

directly contrary to that of Michigan v. Mosley,

supra, North Carolina v. Butler, 441 U.S. 369 (1979),

and Fare v. Michael C., 442 U.S. 707 (1979), all

Miranda cases which eschewed rigid per se rules in

favor of totality of the circumstances analysis.

Mosley, Butler, and Fare are alike in their recogni-

tion that Mirandas worthy goals can only be

achieved on a case-by-case basis. Edwards departs

from this realistic approach and assumes that each

instance of custodial interrogation follows a uniform

textbook example. Experience demonstrates that

this assumption is unwarranted.!0

‘See, for example, the cases cited and discussed below at pp. 37-41. See

ed Inbau and Reid, Criminal Interrogation and Confessions (2d ed.

29

As the court of appeals noted in the pre-Edwards

case of United States v. Rodriguez-Gastelum, 569

F.2d 482, 487 (9th Cir.), cert. denied 436 U.S. 919

(1978), per se rules often cause one to lose touch

with the reasons for their creation. The announced

purpose of Miranda v. Arizona was to protect the

privilege against self-incrimination and to insure

that any waiver thereof was made “voluntarily,

knowingly and intelligently.” 384 U.S. at 444.

While attempting to do just that, the Edwards

decision, because of its broad ambit, seriously risks

just the opposite. In the case at bar, the circum-

stances indicate a voluntary, knowing, and intelli-

gent waiver of the right to counsel by defendant

Bradshaw. Indeed, Bradshaw was reminded of his

constitutional rights immediately after he asked,

following his request for counsel, “[WJhat is going to

happen to me now?” He was advised again of his

Miranda rights the next morning before he submit-

ted to a polygraph examination. However, at least

as the Oregon Court of Appeals saw it, application

of the Edwards per se rule rendered his statements

to the polygraph examiner inadmissible. Miranda

loses both credibility and effectiveness when inter-

preted so rigidly.

30

The Edwards per se rule allows for only one

exception: initiation of the communication by the

defendant. Although this permits some flexibility in

application to individual defendants, it nevertheless

creates unnecessary problems which detract from the

achievement of Miranda's relatively simple goals.

What began as an inquiry into the voluntariness of

an accused’s statements to the police and evolved

into an inquiry into the voluntariness of the waiver

preceding the statements is carried one step further.

Now, there must be a preliminary analysis as to who

began the interchange, the questioner or the person

questioned. This case demonstrates that such

analysis is both difficult and not necessarily condu-

cive to a proper application of Miranda. Does

“initiation” relate to the precise moment of incrimi-

nation, or does it refer generally to an entire ex-

change or series of conversations, regardless of

substantive content? How is the determination of

“initiation” to be made in cases where innocuous

conversation is mixed with remarks which are

pertinent to the criminal investigation.!! Is there a

‘In many cases the initiation inquiry is coupled with an equally diffi

question of whether there was any interrogation under the co po Acme ae

Rhode Island v. Innis, 446 U.S. 291 (1980). See, eg. United States v.

Thierman, 678 F.2d 1331 (9th Cir. 1982); Trest v. State, 409 So. 2d 906 (Ala.

Crim. App. 1981); State v. Emery, 131 Ariz. 493, 642 P.2d 838 (1982); State v.

—. a ae A.2d 646 (1981) (on remand), cert. denied __

US. ). In cases, a trial judge must determine not

initiated the exchange but whether it even constituted nemeiien ——

Innis. Ironically, the latter determination is made under a variation of the

totality of the circumstances test. See, 446 US. at 302 n. 8.

31

relevance test? Does the officer’s intent become a

factor? Can the officer lend any encouragement? Is

there a minimum am.vunt of initiation required on

the part of the defendant? If so, how much? The

Oregon Court of Appeals, understandably, had

difficulty answering these questions and, in attempt-

ing to answer them, reached an unreasonable result

in this case.

In addition to posing problems of definition and

application, the term “initiation” is an inadequate

standard for dealing with the multitude of factors

involved in custodial defendant-police relations.

There may be instances when, for some valid reason,

the police must reinitiate verbal contact. See White

v. Finkbeiner, supra, 611 F.2d at 192; United States

v. Wilson, 571 F.2d 455 (9th Cir. 1978);

Commonwealth v. Harris, _— Pa. Super. , 443

A.2d 851 (1982). For example, if new charges arise,

the authorities should not be required to keep a

defendant in ignorance of them. Also, the discovery

of new evidence or a change in circumstances as

innocuous as a transfer to a different facility may

significantly alter a defendant’s situation. As it

stands, Edwards not only encourages but, under a

strict reading, requires the authorities to stand mute

or risk obtaining an inadmissible statement.

By chilling any post-invocation verbal contact

with an accused person, Edwards clearly works to

32

the detriment of a person in custody. Its direct

effect is to encourage authorities to hold defendants

incommunicado, something which Miranda might

view as a coercive circumstance in itself. But an

even more apparent danger lies in the implicit

creation of an irrevocable invocation of the right to

counsel. As discussed above, defendants invoke

rights for any number of reasons. If an officer is

forbidden to communicate further unless the accused

initiates the exchange, the officer cannot inform the

defendant of any substantive information about his

case or his general status without “reinitiating”

conversation. That being the case, Edwards

“imprison[s] [defendant] in his privileges.” Adams v.

United States ex rel. McCann, 317 U.S. 269, 280

(1942). The intelligent examination of options which

began in Miranda suddenly becomes an exercise in

ignorance because, unless he possesses clairvoyance

or is forthright enough to ask, the defendant will

know nothing of the change in circumstances. The

subject of the new information, whatever it might

be, could be the very thing which caused the defen-

dant to be nonconversant in the first place, but the

officer is prohibited from volunteering it.

The proper approach is the “totality of the

circumstances” analysis advenced by Mosley and

other post-Miranda decisions. In practice, this

analysis fosters Miranda’s admirable goal of intelli-

33

gent exercise of Fifth Amendment rights, while

furthering Miranda's other concern, the intelligent

choice of waiver. By focusing on the whole array of

factual circumstances, rather than a single element,

the totality test more accurately addresses the

situation faced by a defendant. Because any custodi-

al statement is usually the product of more than one

circumstance, the test of the statement’s admissibili-

ty logically should be multi-faceted.

Since this Court’s decision in Johnson v. Zerbst,

304 U.S. 458, 464 (1938), the general test for waiver

of a constitutional right has been whether there

exists “an intentional relinquishment or abandon-

ment of a known right or privilege.”!2 This analysis,

the Court said, depends on “the particular facts and

circumstances surrounding that case, including the

background, experience, and conduct of the accused.”

Id. Because the Court has deemed such a standard

sufficient to protect the constitutional right to

silence itself, the test logically should be more than

adequate in fostering Miranda's derivative right to

counsel.

In examining the totality of the circumstances in

a ease of post-invocation waiver, the origin of the

renewed conversation is a highly relevant factor. In

!2As Justice Powell observed in his concurring opinion in Edwards.

“* * * There is no indication, in the multitude of cases that come to us

each Term, that Zerbst and its progeny have failed to protect constitution-

al rights.” 451 U.S. at 492 n. 2.

34

some cases of heavy-handed police misconduct, it

may very well be the determining factor, and thus

would require suppression of a subsequent confes-

sion. But in most cases, “initiation” is only one of

several elements in the analysis. Whatever the

particular situation, a single element of fact, to the

exclusion of all others, should not control the out-

come.

In the present case, defendant never contended in

the Oregon courts that his confession was inadmissi-

ble under a totality of the circumstances test. His

only claim was that the per se rule of Edwards

rendered any waiver of his Miranda rights invalid

because the police, not he, initiated the post-

invocation conversation. Any such per se rule should

be abandoned. The trial court’s express determina-

tion of waiver based on the totality of the circum-

stances should be revived.

II

Even if Edwards v. Arizona established a per

se rule, the Oregon Court of Appeals misapplied

it in this case.

If this Court concludes that the so-called per se

rule of Edwards is a correct statement of the law

regarding custodial interrogation after an invocation

of the Miranda right to counsel, the question

remains whether the Oregon Court of Appeals

correctly applied it to the facts at bar. The court of

35

appeals attributed no significance to the fact that

shortly after he claimed his right to counsel, Brad-

shaw asked Corporal Hays, “Well, what is going to

happen to me now?” The court held that defendant

did not “initiate” the renewed conversation with the

authorities and, thus, that the Edwards exception to

the per se rule did not apply. Under a plain reading

of Edwards, the determination of the court of

appeals is wrong.

Edwards expressly addressed the situation in the

present case. According to the majority opinion,

police are precluded from questioning a suspect who

asks for counsel

“* * * unless the accused himself initiates

further communication, exchanges, or conversa-

tions with the police.” 451 U.S. at 485.

After discussing this single factor in the context of

defendant Edwards’ confession, the Court hypothes-

ized that a different result would have obtained had

Edwards “initiated” his second meeting with the

police and, in effect, “volunteered” his statements.

Id. In discussing this event with regard to the

question of “interrogation” under the analysis of

Rhode Island v. Innis, supra, the Court added a

footnote that is very pertinent here:

“If, as frequently would occur in the course of

a meeting initiated by the accused, the conversa-

tion is not wholly one-sided, it is likely that the

officers will say or do something that clearly

would be ‘interrogation.’ In that event, the

question would be whether a valid waiver of the

36

right to counsel and the right to silence had

occurred, that is, whether the purported waiver

was knowing and intelligent and found to be so

under the totality of the circumstances, including

the necessary fact that the accused, not the

police, reopened the dialogue with the authori-

ties.” 451 U.S. at 486 n. 9.

In other words, a defendant’s assertion of the

right to counsel is not irrevocable. If he elects, on

his own volition, to reopen the dialogue with the

police, the so-called per se rule no longer applies.

Instead, traditional concepts of intelligent, knowing

and voluntary waiver come into play, and the test is

the multi-factor “totality of the circumstances”

standard employed in a Michigan v. Mosley analysis.

Obviously, there are cases in which a _ verbal

interchange between the police and an arrestee is

“mixed,” £.e., consists of conversation both pertinent

and irrelevant to the matter under investigation.

Contrary to the Oregon Court of Appeals’ sugges-

tion, however, Edwards clearly does not render

inadmissible every nonspontaneous portion of a

conversation resumed at the accused’s_ behest.

Rather, if a mixed dialogue is initiated by defen-

dant, the waiver test is an evaluation of the totality

of the circumstances. Once a defendant unilaterally

indicates a willingness to talk with his accuser, his

prior invocation of the right to counsel must be

viewed in light of other factors. The accused obvi-

ously has reconsidered his prior decision at that

37

point. A trial court evaluating the waiver of the

presence of counsel is therefore required to make the

more customary examination of all the circumstanc-

es, not just the previous assertion of the right.

The fact that what follows the “initiation” may

be an amalgam of both the innocuous and the

incriminating does not change the analysis.

Edwards recognized that custodial interrogation

presents no exception to the simple realities underly-

ing all human conversation. Once a conversation

starts (ie, is “initiated”), questions and answers,

remarks and reactions, requests and responses, flow

at will. At that point it is difficult, if not impossible,

to isolate interrogation from volunteered remarks

with any degree of certainty. Edwards recognizes

this reality by abandoning a rigid per se rule and

substituting a flexible totality of the circumstances

test once the defendant, on his own, opens the

channels of communication. The court of appeals

failed to apply the totality standard and thus erred.

Each case of “initiation” is obviously different

from others on its facts, but it is helpful to examine

similar decisions by this Court and by other courts.

These decisions put the Oregon Court of Appeals

holding in perspective and demonstrate how the

Oregon court erroneously applied Edwards here.

A recent per curiam decision by this Court,

Wyrick v. Fields, _. U.S. ~~ , 51 U.S.L.W. 3411

38

(No. 82-158, Nov. 29, 1982), although factually

distinguishable, demonstrates that a defendant-

initiated dialogue triggers a totality of the circum-

stances analysis. After consulting with counsel,

Fields himself initiated a conversation with military

police by asking if he could take a polygraph exami-

nation. The police advised Fields of his rights and

he waived them. When the polygraph results

indicated that the accused had been untruthful, the

officer asked him why his answers were bothering

him. In response, defendant admitted having had

intercourse with the woman he was accused of

raping. This Court reversed an Eighth Circuit

holding that evidence of the statement was inadmis-

sible. The Court reasoned that the Eighth Circuit

had failed to examine the incriminating statement

under the totality of the circumstances, as required

by Edwards v. Arizona. Because Fields opened the

dialogue by requesting the polygraph, the Court said

that his post-examination conversation with the

officer was subject to the standard set forth in

footnote 9 of Edwards and not the per se rule

erroneously employed by the circuit court of appeals.

This Court did not limit its admissibility ruling to

remarks made contemporaneously with Fields’

initiation of dialogue with police.

In Dillard v. State, 275 Ark. 320, 629 S.W.2d 291

(1982), the police terminated their interview after

39

defendant requested counsel. Much like Bradshaw,

the defendant nevertheless continued, “But I want to

know what this is all about.” 275 Ark. at 322, 629

S.W.2d at 292. The police then told him the facts of

the crime, and defendant continued the conversation.

Despite repeated police warnings about his right to

counsel, defendant made incriminating statements.

The court held that, under Hdwards, defendant

initiated the interrogation and evidence of his

subsequent statements was admissible.

Similarly, the authorities honored defendant’s

request for counsel by ending the initial interview in

People v. Thomas, 98 ill. App. 3d 852, 54 Ill. Dec.

235, 424 N.E.2d 985 (1982), cert. denied __ USS.

— (1982). Defendant then inquired about the

details of accomplices’ statements linking him to the

crime. An officer reread defendant his rights, and

incriminating statements followed. Citing Zdwards,

the court held:

“This voluntary reinitiation of interrogation

reflects a knowing and intelligent relinquishment

of the Sixth Amendment right to counsel.” 98 III.

App. 3d at 856, 424 N.E.2d at 989.

In Leuschner v. State, 49 Md. App. 490, 433 A.2d

1195 (1981), cert. denied _._ U.S. ~~ (1982), the

police stopped questioning defendant upon his

assertion of the right to counsel. “Without the

slightest instigation by the police officers,” defen-

dant continued his conversation by talking first to

40

his girlfriend in the officers’ presence and later

joining them in the discussion. 49 Md. App. at 495,

433 A.2d at 1198. The court held that there was no

interrogation until after defendant had, “by his

conduct, words and actions,” waived his prior invoca-

tion. 49 Md. App. at 497, 433 A.2d at 1199. The

police did not initiate the conversation by merely

answering his request for a telephone and then

listening to the garrulous defendant “uninterrupted-

ly rattle.” 49 Md. App. at 498, 433 A.2d at 1199.

The court held that there was no police initiation,

even if the police officers’ interjections were the

functional equivalent of interrogation.

After terminating an interview in State uv.

Pittman, 210 Neb. 117, 313 N.W.2d 252 (1981), the

officer was on his way out the door when defendant

spontaneously remarked that he was being “rail-

roaded” by his co-defendants. The officer responded

that he only had one side of the story and would

gladly hear defendant’s version. Without ever again

mentioning an attorney, defendant gave a statement

in response to formal police interrogation. Applying

Edwards, the court held that defendant initiated the

conversation and validly waived his rights.

Defendant in State v. Blakney, _— Mont. .

641 P.2d 1045 (1982), also started talking after he

asserted his Miranda right to counsel and before the

police had left the room. They warned him of his

41

rights, but he said that he did not want counsel after

all. In upholding the resultant confession, the court

employed footnote 9 of the Edwards opinion to

examine the totality of the circumstances of defen-

dant’s reinitiation of the colloquy with the

authorities.

A pre-Edwards case, United States v. Webb, 633

F.2d 1140 (5th Cir. 1981), is also instructive.

Questioning ceased upon defendant’s assertion of the

right of counsel. Defendant then remarked, “I want

you to tell me what I’m charged with.” 633 F.2d at

1141. In the process of answering defendant’s

question, the F.B.1I. agent mentioned a_ co-

defendant’s confession. The defendant then incrimi-

nated himself. The court held:

“While we are concerned that a_ suspect’s

request for counsel should result in an im.mediate

end to all forms of interrogation, we believe that

the information provided by the FBI agent was

responsive to [defendant’s] question and not an

attempt to prolong interrogation.” /d., 633 F.2d

at 1142.

Other examples of defendant-initiated conversa-

tion abound.!3 The holdings in these numerous and

factually various cases isolate the aberrant decision

13 See, e.g., United States v. Gordon, 655 F .2d 478 (2d Cir. 1981); State v. Piatt, 132

Ariz. 145, 644 P.2d 881 (1981); Coble v. State, 274 Ark. 134, 624 S.W.2d 421

(1981), cert. denied ___ US. __ (1982); Caffo v. State, 247 Ga. 751, 279

S.E.2d 678 (1981); State v. Ruth, 102 Idaho 638, 637 P.2d 415 (1981); People v.

Wegman, 101 Ill. App. 3d 634, 57 Ill. Dec. 87, 428 N.E.2d 637 (1981); State v.

Johnson, 318 N.W.2d 417 (lowa 1982); Wantland v. State, 49 Md. App 636, 435

A.2d 102 (1981) cert. denied ___ US. ___ (1982); State v. Killay, 430 A.2d

418 (R.1. 1981); State v. Grisby, 97 Wash. App. 2d 493, 647 P.2d 6 (1982).

42

by the Oregon Court of Appeals in the present case.

The court misapplied Edwards v. Arizona's stan-

dards on initiation, and its decision herein should be

reversed.

In the case at bar, the trial court correctly

determined that, based upon the totality of the

circumstances, Bradshaw initiated further conversa-

tion and made an intelligent, knowing, and volun-

tary waiver of rights. After defendant’s assertion of

the right to counsel, Corporal Hays promptly termi-

nated his interrogation. Defendant, on his own

voliticn and with no prompting whatsoever, asked

Hays, “[WJhat is going to happen to me now?” Hays

did not immediately seize the opportunity to reques-

tion defendant. Rather, he carefully reminded

Bradshaw of his previous request for counsel, with

the apparent intent of furthering, not violating, that

right. Defendant responded by acknowledging that

he understood his situation and that he was resum-

ing the conversation of his own free will. In the

course of the ensuing conversation, apparently while

en route to the county jail, Hays broached the

subject of a polygraph examination to “clear this

matter up and find out actualiy what happened.”

Bradshaw reaffirmed his cooperation and agreed to

take the test. When the occasion for the test arose

late the next morning, the polygrapher, Trooper

43

Rainey, readvised defendant of his Miranda rights.

Bradshaw waived his rights and proceeded with the

polygraph examination. When Rainey advised

Bradshaw that he thought Bradshaw had been

untruthful during the examination, Bradshaw

confessed.

Under the totality of these circumstances, it is

evident that Bradshaw had intelligently, knowingly,

and voluntarily abandoned and waived his previous-

ly asserted request for counsel before he made the

critical admissions. See Wyrick v. Fields, supra. The

Oregon Court of Appeals erred in holding to the

contrary.

CONCLUSION

For the above reasons, the judgment of the

Oregon Court of Appeals should be reversed and this

case remanded for further proceedings.

Respectfully submitted,

DAVE FROHNMAYER

Attorney General of Oregon

WILLIAM F. GARY

Solicitor General

JAMES E. MOUNTAIN, JR.

Deputy Solicitor General

ROBERT E. BARTON

THOMAS H. DENNEY

STEPHEN F. PEIFER

Assistant Attorneys General

Counsel for Petitioner