Amicus Curiae Brief — Duckworth v. Eagan

No. 88-317

In the Supreme Court of the Gni

OCTOBER TERM, 1988

JACK R. DUCKWORTH, PETITIONER

Vv.

GARY JAMES EAGAN

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

CHARLES FRIED

Solicitor General

EDWARD S.G. DENNIS, JR

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

MICHAEL R. LAZERWITZ

Assisiant to the Solicitor General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QULESTION PRESENTED

The United States will address the following question:

Whether the warnings given to respondent, which in-

cluded advising him that a lawyer will be appointed “if and

When you go to court,” complied with the requirements of

Miranda v. Arizona, 384 U.S. 436 (1966).

TABLE OF CONTENTS

Page

ake eeaasececs |

EE SE We 2

Nene es cs ss caskets eenceccces 8

Argument:

Respondent was adequately informed of his rights before

Ne wade cececccccccs 9

A. Advising a suspect that a lawyer will be appointed if

and when he goes to court does not invalidate other-

wise proper Miranda warnings .................. y

B. Advising respondent that a lawyer would be ap-

pointed if and when he went to court does not link the

right to counsel to an event Occurring after question-

Ee ehs bess deers sceecccvces: 17

EL 2)

TABLE OF AUTHORITIES

Cases:

California \. Beheler, 463 U.S. 1121 (1983) ............ 11

California vy. Prysock, 453 U.S. 355 (1981) .... 2... .. 10, 16, 17

Colorado v. Connelly, 479 U.S. 157 (1986)... .......... 20

Commonwealth \. Johnson, 484 Pa. 349, 399 A.2d 111

Ne cece esc eeeancce 16

Covote \. United States, 380 F.2d 305 (10th Cir.), cert.

denied, 389 U.S. 992 (1967) ........................ 15

De La Rosa y. Texas, 743 F.2d 299 (Sth Cir. 1984), cert.

I 15

Eagan. State, 480 N.E.2d 946 (Ind. 1985) ............. 5

Emler \. State, 259 Ind. 241, 286 N.E.2d 408 (1972) .... 15

Gilpin y. United States, 415 F.2d 638 (Sth Cir. 1969)... .. 16

Harrell. State, 357 So. 2d 643 (Miss. 1978) ............ 15

Jones \. State, 69 Wis. 2d 337, 230 N.W.2d 677 (1975)... 15

Alingler \. United States, 409 F.2d 299 (8th Cir.), cert.

I, PD gg cee teens 1§

Lathers,. United States, 396 F.2d $24 (Sth Cir. 1968)... 16

Miuassimo \. United States, 463 F.2d 1171 (2d Cir. 1972),

cert. denied, 409 U.S. 1117 (1973)... .0 00... oe oo

(11)

lV

Cases — Continued: Page

Mayzak v. United States, 402 F.2d 152 (Sth Cir. 1968)... 12

Miranda v. Arizona, 384 U.S. 436 (1966) .............. 1, 5, 8,

9, 10, 12, 14

Moore v. State, 251 Ark. 436, 472 S.W.2d 940 (1971) .... 16

Moran v. Burbine, 475 U.S. 412 (1986)... 2... 0000..... y

Oregon v. Elstad, 470 U.S. 298 (1985) .........0.0.0.... 20

Oregon v. Mathiason, 429 U.S. 492 (1977)... 0.000000... 11

People vy. Bolinski, 260 Cal. App. 2d 336, 67 Cal. Rptr.

ee MEE ccendveakuwsnadeeetenentetesatenseses. 17-18

People v. Campbeil, 26 Mich. App. 196, 182 N.W.2d 4

(1970), cert. denied, 401 U.S. 945 (1971)... .......... 15

People v. Swift, 32 A.D.2d 183, 300 N.Y.S.2d 639 (1969),

cert. denied, 396 U.S. 1018 (1970) .................. 15

Rhode Island v. Innis, 446 U.S. 291 (1980) ............. 10

Rowbotham v. State, 542 P.2d 610 (Okla. Crim. App.

SED 2c. caucgs RAas Sue b eh ed can adee sues keene 15

Schade v. State, 512 P.2d 907 (Alaska 1973) ............ 15

Square v. State, 283 Ala. 548, 219 So. 2d 377 (1969) ..... 16

State v. Creach, 77 Wash. 2d 194, 461 P.2d 329 (1969) ... 16

State v. Maluia, 56 Haw. 428, 539 P.2d 1200 (1975) ..... 15

Tasby v. United States, 451 F.2d 394 (8th Cir. 1971),

— - Fee |. ere ree 15

United States v. Cassell, 452 F.2d 533 (7th Cir. 1971) ....

United States v. Contreras, 667 F.2d 976 (lith Cir.),

cert. denied, 459 U.S. 849 (1962) ..... 0... cee eee, 7, 15

United States v. Garcia, 43) F.2d 1349 (9th Cir. 1970) ... 17

United States v. Lacy, 446 F.2d 511 (Sth Cir. 1971) ....7, 15, 16

United States v. Lamia, 429 F.2d 373 (2d Cir.), cert.

CK eee eee ee 15

United States v. Sanchez, No. 88-1706 (7th Cir. Sept. 30,

SD eke et ucg heen

United States ex rel. Placek v. Illinois, 546 F.2d 1298

(7th Cir. 1976)

United States ex rel. William v. Twoomey, 467 F.2d 1248

(7th Cir. 1972)

Wright v. North Carolina, 483 F.2d 405 (4th Cir. 1973),

cert. denied, 415 U.S. 936 (197M)... oe. 7, 15

Constitution, statutes and rules: Page

U.S. Const.:

Amend. Vv... i)

| aS | i)

28 U.S.C. 2254(d) 6... cc cc ce cece eee S

Ind. Code Ann. (Burns 1985):

DB PPO TONED ccc bbe cecccdoccocesecweeees 14

PN. °» 5.4645 +b a awe 0% Kee 6.0 mhhrbibwknn 12, 14

Fed. R. Crim. P.:

REE et ee A oe ee ee Shae 14

YY AN SED FOP mn a Ol Ie Bee bg oll 12, 14

Miscellaneous:

FBI/DOJ Form FD-395 (Rev. 6-22-77) ................ 1-2

Jn the Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-317

JACK R. DUCKWORTH, PETITIONER

Vv.

GARY JAMES EAGAN

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether warnings given

to a suspect, which include advising him that a lawyer will

be appointed “if and when you go to court,” comply with

the requirements of Miranda v. Arizona, 384 U.S. 436

(1966). As a matter of practice, federal law enforcement

agents do not include such advice when issuing Miranda

warnings.' Nevertheless, inadvertent departures from

' For, example, the standard Miranda warnings issued by the

Federal Bureau of Investigation provide in pertinent part (FBI/DOJ

Form FD-395 (Rev. 6-22-77)):

Before we ask you any questions, you must understand your

rights.

You have the right to remain silent.

Anything you say can be used against you in court.

(1)

2

routine practice occur from time to time, especially when

suspects -cqguest an elaboration of the warnings.

Moreover, the federal government often accepts for pros-

ecution cases referred by state and local authorities, in

which suspects have already been interrogaied. The

Court’s analysis and resolution of this question are

theretore likely to have a significant effect upon the ad-

muissibility of defendant’s statements in federal prosecu-

tiOMNs.

STATEMENT

|. Late on the evening of May 16, 1982, respondent

stabbed a woman nine times after she refused to have sex-

ual relations with him. Respondent left the woman lying

naked along the shores of Lake Michigan outside of Ham-

mond, Indiana. After returning to Chicago that night, re-

spondent called a Chicago police officer he knew and

reported seeing the naked body of a dead woman. Re-

spondent then led Chicago police officers to the woman,

who was crying for help. On seeing respondent accompa-

nying the police, the woman asked respondent why he had

stabbed her. Respondent explained to the officers that he

had been with the woman earlier that evening but that they

had been attacked by several men who had then abducted

the woman. Pet. App. A4, Al10-A12.

You have the right to talk to a lawyer for advice before we ask

you any questions and to have a lawyer with you during ques-

uioning.

It you cannot afford a lawyer, one will be appointed for you

betore any questioning if you wish.

It you decide to answer questions now without a lawyer pres-

ent, you will still have the right to stop answering at any time.

You also have the right to stop answering at any time until you

talk to a lawyer.

By 7:30 the following morning, the Chicago police of-

ficers realized that the crime had been committed in In-

diana.? They therefore turned the investigation over to the

Hammond, Indiana, Police Department, which im-

mediately dispatched two detectives to the lakefront.

When respondent told the Hammond detectives that he

had been attacked, the detectives took respondent to a

police station so that he could file a complaint. After

respondent had filled out his report, the detectives asxed

him to accompany them to police headquarters for further

questioning. Pet. App. A4, Al2-Al13.

At about 11 a.m., Hammond detectives questioned re-

spondent. Before the questioning, the detectives read a

waiver form to respondent and asked him if he would sign

it. The form provided (Pet. App. Al3 n.2; see id. at AS):

VOLUNTARY APPEARANCE; ADVICE OF RIGHTS

YOUR RIGHTS

Before we ask you any questions, you must under-

stand your rights. You have the right to remain silent.

Anything you say can be used against you in court.

You have the right to talk to a lawyer for advice

before we ask you any questions, and to have him

with you during questioning. You have this right to

the advice and presence of a lawyer even if you cannot

afford to hire one. We have no way of giving you a

lawyer, but one will be appointed for you, if you

wish, if and when you go to court. If you wish to

answer questions now without a lawyer present, you

have the right to stop answering questions al any

2 In the meantime, respondent had accompanied police officers to

the hospital where the woman was taken and then had returned with

them to the crime site (Pet. App. Al2).

4

time. You also have the right to stop answering at any

time until you talk to a lawyer.

Respondent signed the form and gave the detectives an ex-

culpatory statement (Pet. App. A5).°

At roughly 4 p.m. the following day, Hammond detec-

lives again interviewed respondent. Before answering

questions, respondent signed another waiver form that

provided (Pet. App. Al5 n. 3; see id. at A6):

WAIVER AND STATEMENT

1. Betore making this statement, | was advised

that | have the right to remain silent and that anything

| might say may or will be used against me in a court

of law.

2. That | have the right to consult with an at-

torney of my own choice before saying arjthing, and

that an attorney may be present while | am making

any statement or throughout the course of any con-

versation with any police officer if | so choose.

* The remainder of the form signed by respondent provided (Pet.

App. Al3 n.2 (brackets in original)):

WAIVER

1, [Gary Eagan) have come to the Detective Bureau of the

Hammond, Indiana Police Department, of my own choice to talk

with Otticers * * * In [sic] regard to an investigation they are con-

ducting. | know that | am not under arrest and that | can leave

this Office if I wish to do so.

Prior to any questioning, | was furnished the above statement

of my nghts * * *. | have (read) (had read to me) this statement

ot my rights. | understand what my rights are. | am willing to

answer questions and make a statement. | do not want a lawyer. |

understand and know what | am doing. No promises or threats

have been made to me and no pressure of any kind has been used

against me.

3. That I can stop and request an attorney at any

time during the course of the taking of any statement

or during the course of any such conversation.

4. That in the course of any conversation | can

refuse to answer any further questions and remain

silent, thereby terminating the conversation.

5. That if | cannot hire an attorney, one will be

provided for me.

After reading and signing that form, respondent confessed

to stabbing the woman. The following day respondent led

the police to the area near Lake Michigan where he had

discarded the knife he had used as well as several items of

clothing. The knife and clothing were recovered at that

location. Pet. App. A6, Al?7.

2. At trial, respondent sought to exclude testimony

relating to the substance of his two statements to the Ham-

mond police as well as the knife and clothing that were

recovered. After conducting a suppression hearing, the

trial court denied the motion. The statements and the

physical evidence were admitted at trial, and respondent

was convicted of attempted murder.* Respondent was

sentenced to a term of 35 years’ imprisonment. Pet. App.

A6. The Supreme Court of Indiana affirmed respondent's

conviction on direct appeal. Eagan v. State, 480 N.E.2d

946 (Ind. 1985).

3. Respondent thereafter filed a petition for a writ of

habeas corpus in the United States District Court for the

Northern District of Indiana. Respondent claimed, among

other things, that his confession was inadmissible because

the first waiver form he signed did not comply with the re-

quirements of Miranda v. Arizona, 384 U.S. 436 (1966).

The court denied the petition, concluding that the record

“clearly manifests adherence to Miranda * * * especially

as to the so-called second statement” (Pet. App. A52).

* The jury acquitted respondent of rape (Pet. App. A6).

6

4. A divided panel of the court of appeals reversed

(Pet. App. A3-A48). The majority relied on United States

ex rel. William v. Twoomey, 467 F.2d 1248, 1250 (7th Cir.

1972), which had condemned, as “ ‘misleading and confus-

ing,’ ” a warning identical to the one given prior to re-

spondent’s first statement, i.e., the advice that a lawyer

will be appointed “ ‘if and when you go to court’ ” (Pet.

App. A7 (citations omitted)). The court explained (Pet.

App. A&) that

[t]he warning suggests erroneously that only those ac-

cused who can afford an attorney have the right to

have one present before answering any questions;

those who are not so fortunate must wait. This

language further implies that if the accused does not

“go to court,” i.e.[,] the government does not file

charges, the accused is not entitled to an attorney at

all.

The court concluded that the warning was “defective

because it denies an accused indigent a clear and un-

equivocal warning of the right to appointed counsel before

any interrogation” (Pet. App. A8 (citation omitted)), and

that the warning’s “confusing linkage of an indigent’s right

to counsel before interrogation with a future event * * *

violates Miranda” (Pet. App. A8).

Turning to whether respondent’s inadmissible first state-

ment tainted his later confession, the court surmised that

“[ajs a result of the first warning, [respondent] arguably

believed that he could not secure a lawyer during inter-

rogation” and that the second warning “did not explicitly

correct this misinformation” (Pet. App. A9). Accordingly,

the court remanded the case for a determination whether

respondent had knowingly and intelligently waived his

right to the presence of an attorney at the second police in-

terview (/bid.).

Judge Coffey dissented. Agreeing with those courts of

appeals that have upheld warnings identical or similar to

the first set of warnings given to respondent,’ Judgg

Coffey rejected the majority’s “technical and unrealistic

application of Miranda” and concluded that the initial

warnings were constitutionally adequate (Pet. App. Al9).

Since respondent was told explicitly that he had the right

to consult with an attorney before questioning, and to

have an attorney present during questioning even if he

could not afford to hire an attorney, the fact that an at-

torney could not be provided on the spot necessarily in-

formed respondent that he need not submit to immediate

questioning (Pet. App. Al9-A27). “[A]fter evaluating the

totality of the information given [respondent],” Judge

Coffey concluded (Pet. App. A35) that respondent

was clearly informed that he had the right to talk to

an attorney before the police questioned him, even if

he couldn’t personally afford to retain one and was

specifically advised of his right to appointed counsel.

Even assuming respondent’s first statement was inad-

missible under Miranda, Judge Coffey concluded that a

remand was unnecessary because the record showed that

respondent's confession was properly received into

evidence.* Respondent's first statement had been made

voluntarily and the warnings he received before his second

interview cured any misunderstanding that may have

arisen from the first set. Finally, Judge Coffey contended

> See, e.g., United States \. Contreras, 667 F.2d 976 (llth Cir.),

cert. denied, 459 U.S. 849 (1982); Wright v. North Carolina, 483 F.2d

405 (4th Cir. 1973), cert. denied, 415 U.S 936 (1974); Massimo v.

United States, 463 F.2d 1171 (2d Cir. 1972), cert. denied, 409 U.S

1117 (1973); United States \. Lacy, 446 F.2d S11 (Sth Cir. 1971).

* Judge Coffey concluded that any error in admitting respondent's

initial exculpatory statement was harmless (Pet. App. A46).

that the state trial court had implicitly found that respond-

ent had knowingly and voluntarily waived his Miranda

rights before confessing and that that factual finding,

which the record amply supported, was entitled to a

presumption of correctness under 28 U.S.C. 2254(d). Pet.

App. A41-A46.

SUMMARY OF ARGUMENT

The warnings given to respondent before his first inter-

view with the Hammond police satisfied the requirements

of Miranda vy. Arizona, 384 U.S. 436 (1966). The warnings

contained all the advice the Miranda Court required. The

only ground for objection was that in addition to the

warnings required by Miranda, the Hammond police ad-

vised respondent that a lawyer would be appointed for him

“if and when you go to court.” That additional statement

did not undermine the effect of the other warnings. The

Statement about the appointment of counsel was entirely

accurate and did not in any way suggest that only those

suspects able to retain counsel had the right to consult

counsel before questioning. As most federal and state

courts have concluded, informing a suspect that an at-

torney cannot be appointed for him until he appears in

court does not render Miranda warnings inadequate as

long as the suspect is also told that he has the right to

speak with an attorney before questioning and to have him

present during questioning.

Advising respondent that a lawyer will be appointed “if

and when you go to court,” in the context of otherwise

complete warnings, did not impermissibly suggest that

counsel would not be »ppointed until after questioning.

The advice avout the timing of the appointment linked the

appointment of counsel with a future event — respondent’s

initial appearance in court —but the warnings as a whole

made clear that questioning would not occur before re-

y

spondent had an opportunity to consult with counsel

unless respondent chose to waive that right. Contrary to

the court of appeals’ view, we submit that informing a

suspect that a lawyer will be appointed “if and when you

go to court” is not misleading as long as the suspect is et-

fectively told, as was respondent, that he need not submit

to any questioning until he has an attorney appointed for

him and has had an opportunity to consult with that at-

torney.

ARGUMENT

RESPONDENT WAS ADEQUATELY INFORMED OF

His RIGHTS BEFORE QUESTIONING

A. Advising A Suspect That A Lawyer Will Be Appointed If

And When He Goes To Court Does Not invalidate Other-

wise Proper Miranda Warnings

1. In Miranda y. Arizona, 384 U.S. 436 (1966), the

Court established certain procedural safeguards to protect

the right of an individual, under the Fifth and Fourteenth

Amendments, to be free from compelled self-incrimina-

tion during custodial interrogation. The Court in Miranda

concluded that “the process of in-custody interrogation of

persons suspected or accused of crime contains inherently

compelling pressures which work to undermine the in-

dividual’s will to resist and to compel him to speak where

he would not otherwise do so freely” (384 U.S. at 467; see

Moran v. Burbine, 475 U.S. 412, 420 (1986)). The require-

ment that police give suspects the now-familiar Miranda

warnings betore interrogation was intended “[t]o combat

this inherent compulsion” (Moran, 475 U.S. at 420) by en-

suring that suspects are “effectively apprised of [their]

rights,” and thus are “permit{ted] a full opportunity to ex-

ercise the privilege against self-incrimination” (Miranda,

384 U.S. at 467). Accordingly, the Court held, a suspect

must be informed that “he has the right to remain silent,

10

that anything he says can be used against him in a court of

law, that he has the right to the presence of an attorney,

and that if he cannot afford an attorney one will be ap-

pointed tor him prior to any questioning if he so desires”

(id. at 479).

2. This Court has never required that the Miranda

warnings be given in the precise form enunciated in the

Miranda opinion. To the contrary, in Miranda itself the

Court stated that “[t}he warnings required and the waiver

necessary in accordance with our opinion today are, in the

ubsence of a fully effective equivalent, prerequisites to the

admissibility of any statement made by a defendant” (384

U.S. at 476 (emphasis added); see also id. at 479).

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

the Court reterred to “the now familiar Miranda warnings

** * or their equivalent” (id. at 297 (emphasis added)).

And, in California v. Prysock, 453 U.S. 355 (1981), the

Court, in upholding the adequacy of warnings that were

not given in the exact manner prescribed in the Miranda

opinion, made clear that “the ‘rigidity’ of Miranda (does

not} extend[] to the precise formulation of the warnings

given a criminal detendant” (id. at 359 (citation omitted)),

and that “no talismanic incantation [is] required to satisfy

its strictures” (/bid.). Rather than requiring a “verbatim

recital of the words of the Miranda opinion,” the Court

has looked to whether the particular words used “fully

conveyed to [a suspect] his rights as required by Miranda”

(id. at 360, 361).

3. The initial set of warnings given to respondent

touched all the points required by the Miranda decision.’

’ Miranda «armngs may not have been required at all, as 4 ts not

apparent trom the record that respondent was “im custody” at the tome

he first answered questions. The record shows that respondent was in-

terrogated at 4 poluwe station and had been im the contimuous presence

The Hammond detectives told respondent that he had the

right to remain silent, that anything he said could be used

against him in court, that he had the right to speak with an

attorney before questioning and to have the attorney pres-

ent during any interrogation, and that he had “this right to

the advice and presence of a lawyer even if [he could] not

afford to hire one” (Pet. App. AS). If the detectives had

stopped at that point, no objection could possibly be made

regarding the adequacy of the warnings. Nevertheless, the

court of appeals held that these compiete and nearly ver-

batim Miranda warnings were defective because the detec-

tives also explained to respondent that they could not pro-

vide him with a lawyer but that one would be appointed “if

and when you go to court” (/bid.). The court reasoned that

by linking an indigent’s right to counsel to a future, condi-

tional event, the statement about the appointment of

counsel erroneously suggested that “only those accused

who can afford an attorney have the right to have one

of police officers since he first accompanied the Chicago police to the

lakefront earlier that morning. Respondent, however, first requested

to go to the Hammond police station in order to lodge a formal com-

plaint, an action consistent with his initial exculpatory statement, and

he apparently agreed to go to police headquarters for an interview.

Moreover, the waiver respondent signed before that interview express-

ly stated that he was not under arrest and was free to leave at any time,

and respondent was not placed in custody until after he gave his first

statement. Pet. App. A4, Al2-Al3, Al3 n.2, AlS. Under these cir-

cumstances, it is not at all clear that, at the time he submitted to the

initial interrogation, respondent was subject to a “ ‘formal arrest or

restraint on freedom of movement’ of the degree associated with for-

mal arrest.” California \. Beheler, 463 U.S. 1121, 1125 (1983)

(quoting Oregon \. Mathiason, 429 U.S. 492, 495 (1977)). Never-

theless, the State has not argued at any stage of the proceedings that

respondent Was not in custody, so we do not present that issue as an

alternative basis tor upholding the admission of respondent's first

Statement. :

12

present before answering any questions” (id. at A8). The

court also considered that the statement “implie[d] that if

the accused does not ‘go to court,’ i.e.[,] the government

does not file charges, the accused is not entitled to [a

lawyer] at all” (ibid.). The court thus concluded that the

warnings failed adequately to inform respondent of the

right to appointed counsel before interrogation.

a. In reaching that conclusion, the court of appeals

misjudged the effect of the statement about the timing of

the appointment of counsel, particularly in the context of

the information conveyed by the entire set of warnings.

First, the statement about the appointment of counsel was

entirely accurate. A police officer typically has no authori-

ty to appoint counsel for a suspect; only a judicial officer

can do so at that individual’s initial appearance. See Ind.

Code Ann. § 35-33-7-6 (Burns 1985); Fed. R. Crim. P.

5(c). Miranda “does not require that attorneys be produci-

ble on call, or that a Miranda warning include a time table

for an attorney’s arrival.” Mayzak v. United States, 402

F.2d 152, 155 (Sth Cir. 1968). Nor does Miranda require

that “the officer conducting the interview declare his per-

sonal and immediate power to summon an attorney”

(ibid.). In Miranda itself, the Court made clear that it was

not suggesting that “each police station must have a ‘sta-

tion house lawyer’ present at all times to advise prisoners”

(384 U.S. at 474). All that Miranda requires is that the

suspect be advised that he has the right not to be ques-

tioned without a prior opportunity to consult with counsel

and an opportunity to have counsel present during ques-

tioning. If the police have no authority to provide an ap-

pointed counsel — or if they choose not to provide one — all

that Miranda requires is that the police not interrogate the

suspect unless he waives his right to counsel.

13

If an indigent suspect seeks any clarification or

amplification of the Miranda warnings at all, it seems like-

ly that his first question will be when a lawyer will be ap-

ynointed tor him. Surely, it cannot be the case that the of-

ficers are not permitted to answer that question, or that an

accurate answer will result in the suppression of any

Statements the suspect may make. Here, the detectives an-

ticipated that question and answered it truthfully as part

of the warnings themselves. The inclusion of that informa-

tion as part of the warnings —rather than as a response to

a question by the suspect —should not make a difference

for purposes of determining whether the suspect’s state-

ment should be admitted at trial.

Contrary to the view taken by the court of appeals, the

Statement about the ming of the appointment of counsel

did not suggest that only those suspect able to retain

counsel have the right to have counsel present before ques-

tioning. The statement itself merely explained the

mechanics of appointing counsel. The previous two warn-

ings —that respondent had the right to talk to a lawyer for

advice betore questioning, and that he had that right to the

advice and presence of a lawyer before questioning even if

he could not aftord to hire one (Pet. App. AS)—made

clear that whether he could hire an attorney or not,

respondent had the right to the advice and presence of an

attorney betore the police could question him. That right

to consult with counsel before questioning was recon-

firmed when respondent was told that if he chose to

answer questions “without a lawyer present” he could stop

the interview “at any time until [he has] talked to a lawyer”

(ibid.). Telling a suspect that an attorney cannot be ap-

pointed tor him until he goes to court does not vitiate the

effectiveness of a warning that he has a right not to be

questioned without an attorney being present. It simply

14

makes clear that until the indigent suspect goes to court

and an attorney is appointed for him, the police may not

question him unless he waives his right to counsel.*

The challenged statement about the appointment of

- counsel did not suggest that respondent’s rights under

Miranda were somehow conditional. The detective’s state-

ment that an attorney would be appointed for respondent

“if and when you go to court” meant only that, if respond-

ent requested an attorney before questioning, one would

be appointed by the court unless charges were not filed, in

which case respondent would be released and not brought

to court at all.’ In other words, the warnings made clear

that if respondent chose not to waive his right to consult

with counsel before questioning, one of two series of

events would occur: either the police would defer ques-

tioning until charges were filed, the court appointed an at-

torney, and that attorney conferred with respondent; or,

the police would defer questioning, choose not to file

charges, and thus release respondent from custody

without questioning him at all. Contrary to the court of

appeals’ view (Pet. App. A8), nothing in the detective’s use

* Indeed, the Miranda Court acknowledged that the practice of the

Federal Bureau of Investigation, at that time, of informing suspects

“of a right to free counsel if they are unable to pay, and the availabili-

ty of such counsel from the Judge” (384 U.S. at 486 (emphasis in

Original) (internal quotations omitted)), was “consistent with the pro-

cedure [the Court} delineate[d]” (id. at 484).

* Under Indiana law, counsel is appointed at the defendant’s initial

hearing in court, Ind. Code Ann. § 35-33-7-6 (Burns 1985), and for-

mal charges must be filed at or before that hearing, id. § 35-33-7-3(a).

In the federal system, the defendant’s initial hearing, at which counsel

is appointed, can occur before the filing of any indictment or informa-

tion, Fed. R. Crim. P. S(a), (c).

15

of the word “if” undercut the plain message of the warn-

ings —that respondent had the right not to answer ques-

tions until an attorney, whether retained or appointed,

could be present.

b. Most state and federal courts agree that informing a

Suspect that an attorney cannot be appointed for him until

he appears in court (or that an attorney will be appointed

at another time) does not render Miranda warnings inade-

quate, as long as the suspect is also told that he has the

right to speak with an attorney before questioning and to

have him present during questioning.'® Taken together,

the two statements explain to the suspect that “he [has] the

right to put off answering any questions until the time

'* See, e.g., De La Rosay. Texas, 743 F.2d 299, 302 (Sth Cir. 1984),

cert. denied, 470 U.S. 1065 (1985); United States v. Contreras, 667

F.2d 976, 979 (1ith Cir.), cert. denied, 459 U.S. 849 (1982); United

States ex rel. Placek \. Illinois, 546 F.2d 1298, 1300-1301 (7th Cir.

1976); Wright ». North Carolina, 483 F.2d 405, 406-407 (4th Cir.

1973), cert. denied, 415 U.S. 936 (197); Massimo v. United States,

463 F.2d 1171, 1174 (2d Cir. 1972), cert. denied, 409 U.S. 1117 (1973);

Tasby v. United States, 451 F.2d 394, 398-399 (8th Cir. 1971), cert.

denied, 405 U.S. 992 (1972); United States v. Lacy, 446 F.2d $11, 513

(Sth Cir. 1971) (per curiam); United States v. Lamia, 429 F.2d 373,

376-377 (2d Cir.), cert. denied, 400 U.S. 907 (1970); Klingler v. United

States, 409 F.2d 299, 308 (8th Cir.), cert. denied, 396 U.S. 859 (1969);

Coyote y. United States, 380 F.2d 305, 308 (10th Cir.), cert. denied,

389 U.S. 992 (1967); Schade v. State, 512 P.2d 907, 915-916 (Alaska

1973); State \. Maluia, 56 Haw. 428, 431-435, 529 P.2d 1200,

1205-1207 (1975); Emiler \. State, 259 Ind. 241, 243-244, 286 N.E.2d

408, 410-411 (1972); People». Campbell, 26 Mich. App. 196, 201-202,

182 N.W.2d 4, 6-7 (1970), cert. denied, 401 U.S. 945 (1971); Harrell v.

State, 357 So. 2d 643, 645-646 (Miss. 1978); People v. Swift, 32

A.D.2d 183, 186-187, 300 N.Y.S.2d 639, 643-644 (1969), cert. denied,

396 U.S. 1018 (1970); Rowbotham \. State, $42 P.2d 610, 618-619

(Okla. Crim. App. 1975); Jones \. State, 69 Wis. 2d 337, 343-345, 230

N.W 2d 677, 682-683 (1975)

16

when he [does] have an appointed attorney.” United States

v. Lacy, 446 F.2d 511, 513 (Sth Cir. 1971) (per curiam). As

the Second Circuit explained under identical circum-

stances, “[t]he only conclusion [the suspect] would have

been justified in reaching on the basis of the warning was

that, since he was clearly entitled to have a lawyer present

during questioning, and since no lawyer could now be pro-

vided, he could not now be questioned.” Massimo v.

United States, 463 F.2d 1171, 1174 (2d Cir. 1972), cert.

denied, 409 U.S. 1117 (1973).

A minority of federal and state courts, including the

court of appeals in this case, have held such warnings in-

adequate.'' Those courts have disapproved the departure

from the formulation sanctioned in Miranda and have

generally reasoned, as did the court of appeals in this case,

that inserting conditional language into Miranda warnings

undercuts the advice that the suspect has the right to ap-

pointed counsel before any questioning. The insistence on

Strict adherence to the language of the Miranda warnings,

however, cannot be squared with this Court’s admonition

in Prysock that “the ‘rigidity’ of Miranda [does not] ex-

tend[] to the precise formulation of the warnings given to

a criminal defendant” (453 U.S. at 359). Small variations

in the language used “are far less important than whether

the differences threaten achievement of the purpose of the

warnings.” United States v. Sanchez, No. 88-1706 (7th

Cir. Sept. 30, 1988), slip op. 4. And, as we have discussed

above, the minority view is not only unjustifiably rigid, it

ignores the more sensible and straightforward interpreta-

tion of the warnings taken as a whole.

'' See, e.g., Gilpin. United States, 415 F.2d 638, 640-641 (Sth Cir.

1969); Lathers \. United States, 396 F.2d 524, 535-536 (Sth Cir. 1968);

Square \. State, 283 Ala. $48, 550, 219 So. 2d 377, 378-379 (1969);

Moore \. State, 251 Ark. 436, 442-443, 472 S.\W_2d 940, 944 (1971);

Commonwealth ». Johnson, 484 Pa. 349, 352-357, 399 A.2d I11,

112-114 (1979); State v. Creach, 77 Wash. 2d 194, 199-200, 461 P.2d

329, 332-333 (1969).

17

B. Advising Respondent That A Lawyer Would Be Appointed

lf And When He Went To Court Does Not Link The Right

To Counsel To An Event Occurring After Questioning

1. In California v. Prysock, supra, the Court sug-

gested that Miranda warnings would be inadequate “if the

reference to the right to appointed counsel was linked [to

a] future point in time after the police interrogation” (453

U.S. at 360). The court of appeals relied on that statement

from Prysock in finding fault with the advice given by the

police in this case. But there is a critical difference between

the warning at issue in this case and the warning that the

Court in Prysock said would be improper. Prysock

criticized a suggestion that counsel would be appointed

“after police questioning.” In this case, there was no sug-

gestion that the appointment of counsel would occur after

questioning. To the contrary, the warning made clear that,

absent a waiver, an indigent suspect had the right to con-

sult with counsel before questioning, regardless of when

the appointment occurred.

A review of the cases cited by the Prysock Court —

United States v. Garcia, 431 F.2d 134 (9th Cir. 1970) (per

curiam), and People v. Bolinski, 260 Cal. App. 2d 705, 67

Cal. Rptr. 347 (1968) — makes it clear that the court of ap-

peals was mistaken in relying on Prysock as support for its

decision. In Garcia, the defendant had been advised that

she could “have an attorney appointed to represent you

when you first appear before the U.S. Commissioner or

the Court” (431 F.2d at 134). The court concluded that the

warnings were inadequate because they informed the

defendant only of her right to the presence of counsel

“when she answered any questions,” and not “of her right

to counsel before she said [a word]” (/bid.). In Bolinski,

one set of warnings advised the accused that counsel

would be appointed “if he was charged” (260 Cal. App. 2d

18

at 718, 67 Cal Rptr. at 355), and the other set of warnings

informed the defendant that an attorney would be ap-

pointed after he was transferred to California from his

present location in Illinois (260 Cal. App. 2d at 723, 67

Cal. Rptr. at 358). Both sets of warnings were held inade-

quate because they failed to explain that the accused was

entitled to have a lawyer present at the interrogation, let

alone that counsel could be appointed for that purpose

(260 Cal. App. 2d at 718, 720, 67 Cal. Rptr. at 355, 356).

The flaw in the Miranda warnings at issue in Garcia and

Bolinski, therefore, was linking the appointment of

counsel to a future event occurring after interrogation.

The warnings in those cases tended to mislead the indigent

suspect by failing to make clear that he could postpone

questioning until he had a lawyer. Prysock thus casts

doubt on the validity only of those warnings that link the

appointment of counsel to a future event occuiring after

interrogation. It does not condemn warnings that simply

link the appointment of counsel to some future event.

2. Here, respondent was told that he had the right to

talk to a lawyer before any questioning and to have a

lawyer present during questioning. He was told that he

had this “right to the advice and presence of a lawyer” even

if he could not afford one. And he was informed that a

lawyer would be appointed for him, if he wished, when he

appeared in court. That warning certainly linked the ap-

pointment of counsel to a future event —respondent’s ini-

tial appearance in court—but that statement, taken

together with the entire set of warnings, made clear that,

absent a waiver, the future event would occur before any

questioning. Read as a whole, the warnings did not sug-

gest, let alone state, that respondent would enjoy the right

to the advice and presence u. a lawyer only after he sub-

19

mitted to questioning. The warnings given to respondent

therefore satisfied the requirements of this Court’s deci-

sion in Miranda.

One problem with any close analysis of the language

used in pre-interrogation warnings is that focusing on the

precise wording used in the warnings tends to obscure the

basic point of Miranda: to ensure that a suspect does not

waive his right to remain silent either because of the

pressures inherent in custodial interrogation or because he

does not understand that his words can be used against

him in court. The Miranda warnings are not prescribed by

statute or rule, nor are they mandated by the Constitution.

The warnings have constitutional significance only

because this Court has held that giving a suspect those

warnings is one effective way to ensure that the suspect’s

waiver of his right to remain silent is valid. Therefore,

rather than measuring particular warnings against the

words of the Miranda opinion, the Court should deter-

mine whether the warnings in each case provide the

suspect with the information he needs to make a constitu-

tionally binding decision to speak with the police. Viewed

in that way, the warnings given to respondent were

unimpeachable. They advised him, in the clearest possible

language, of his right to remain silent; the consequences of

waiving that right; the right to consult with counsel before

questioning and to have counsel present during-question-

ing if respondent chose to speak with the police; the right

to the advice and presence of counsel even if respondent

could not afford to hire a lawyer; and the right to stop

answering questions at any time. It is hard to credit the

claim that, armed with all that information, respondent's

waiver of his right to remain silent was nonetheless

rendered involuntary because he was told, accurately, that

20

the police were not authorized to appoint a lawyer for

him.'?

'2? Even assuming the first warnings given to respondent were inade-

quate under Miranda, the court of appeals erred in remanding the case

for a determination whether respondent had waived the right to the

presence of counsel before confessing to the detectives. In our view,

the record shows that respondent had waived that right after receiving

proper Miranda warnings. First, as even the court of appeals con-

cluded, respondent's confession “was made voluntarily” (Pet. App.

A9), and there is no evidence in the record that the detectives acted

coercively. See Colorado v. Connelly, 479 U.S. 157, 167 (1986). Sec-

ond, respondent confessed after receiving complete and accurate

Miranda warnings. See Oregon v. Elstad, 470 U.S. 298, 318 (1985).

Third, even if there was a flaw in the first warnings, there was no such

flaw in the second set, which made clear that respondent had the right

to the advice and presence of an attorney before questioning, and that

“if [respondent could not] hire an attorney, one will be provided for

{him]” (Pet. App. AIS n.3). Under these circumstances, respondent

clearly waived the right to the presence of counsel before confessing

and thus a remand was unnecessary.

—~—-

21

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

CHARLES FRIED

Solicitor General

EDWARD S.G. DENNIS, JR

Assistant Attorney General

WitttaM C. BRYSON

Deputy Solicitor General

NCHAEL R. LAZERWITZ

Assistant to the Soliciior General

Jott M. GeresHowirs

Attorney

DEC E\MIBER 1YSS

piVERNMENT Peitatitos OFFICE m6 6 4! O99 OO/ 92