# Amicus Curiae Brief — Duckworth v. Eagan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0246%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1989 - **Citation:** 492 U.S. 195 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0246%3A4. Public record. Not legal advice.