Amicus Curiae Brief — Connecticut v. Barrett

f { |. Supreme Court, U.S,

yy, ‘yi. BILED

No. 85-899 JUL 17 1986

JOSEPH F. SPANIOL, JR.

CLERK

Iu the Supreme Court of the Unite

OCTOBER TERM, 1986

STATE OF CONNECTICUT, PETITIONER

Vv.

WILLIAM BARRETT

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF CONNECTICUT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

CHARLES .\. ROTHFELD

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether, under Miranda vy. Arizona, 384 U.S. 436

(1966), police must immediately terminate a cus-

todial interrogation when a suspect states that he

will answer questions orally but will not make a

written statement in the absence of an attorney.

(I)

TABLE OF CONTENTS

Page

Interest of the United States ................ ale diitaacs scene 1

i 2

Summary of argument ................... inaaieinamaalas sicialeiiieetnan 5

Argument:

Respondent did not invoke his right to counsel

prior to making inculpatory statements .......... . 8

Conclusion ................. eet ale Sas SERS RRO ET AS : 19

TABLE OF AUTHORITIES

Cases:

Beckwith v. United States, 425 U.S. 341... 15

Edwards y. Arizona, 451 U.S. 477 _.......... 6, 10, 11, 14, 17

Fare v. Michael C., 442 U.S. 707 _................... 11, 14, 16, 17

Harris Vv. Riddle, 551 F.2d 936, cert. denied, 434

RE REIL SIs RTI SS pokes 12,18

Kennedy Vv. Fairman, 618 F.2d 1242... s—s—S 18

Michigan Vv. Mosley, 423 U.S. 96 8, 10, 15

Miranda v. Arizona, 384 U.S. 486... sts passim

Moran V. Burbine, No. 84-1485 (Mar. 10, 1986) 8, 9, 12,

14, 15, 16

Nash v. Estelle, 597 F.2d 513, cert. denied, 444 U.S.

(Sous ha SRL SUTRA Gs lalla 16

New York vy. Quarles, 467 U.S. 649... si 14

North Carolina y. Butler, 441 U.S. 369 sis 13, 17

Oregon Vv. Bradshaw, 462 U.S. 1089... sis 10, 17

Oregon v. Elstad, No. 83-773 (Mar. 4, 1985) ....9, 12, 14,

15, 18, 19

People v. Williams, 62 N.Y.2d 285, 465 N.E.2d 327. 19

Pettyjohn Vv. United States, 419 F.2d 651, cert. de-

ee ee es 12

Smith v. Illinois, No. 84-5332 (Dec. 10, 1984) ....6, 8, 10,

11, 13

(II)

Cases—-Continued: Page

State v. Jones, 125 N.H. 490, 484 A.2d 1070... 12,18

State v. McKnight, 52 N.J. 35, 243 A.2d 240... 18-19

Stumes v. Solem, 752 F.2d 317, cert. denied, No. 84-

fn 11

United States v. Cooper, 499 F.2d 1060... 12,18

United States v. Frazier, 476 F.2d 891... 12,18

United States v. Hall, 396 F.2d 841, cert. denied,

I silent er ee ) ak e 15

United States v. Jardina, 747 F.2d 945, cert. denied,

No. 84-6232 (Mar. 18, 1985) .......... 11-12

United States v. Thierman, 678 F.2d 1831... 12

United States v. Washington, 431 U.S. 181 12, 14, 18

Wyrick v. Fields, 459 U.S. 42... 14

Constitution:

U.S. Const. Amend. V ................. Pena ee, 7, 13, 15, 16

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-899

STATE OF CONNECTICUT, PETITIONER

Vv.

WILLIAM BARRETT

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF CONNECTICUT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The question in this case is whether, under Miranda

v. Arizova, 384 U.S. 436 (1966), a custodial inter-

rogation must immediately cease when a _ suspect

states that he is willing to answer questions orally,

but indicates that he will not make a written state-

ment in the absence of an attorney. The Court’s

analysis and resolution of this question is likely to

have a significant effect upon the conduct of federal

law enforcement agents in receiving voluntary in-

(1)

2

culpatory statements, and upon the admission of such

statements in federal prosecutions.

STATEMENT

1. The evidence at trial established that, on the

evening of October 23, 1980, respondent and a com-

panion sexually assaulted a young woman in Walling-

ford, Connecticut. Immediately after the assault, the

victim contacted the New Haven police and identified

respondent, a former neighbor, as one of the assail-

ants. Respondent was taken into custody in New

Haven later that evening and was transported to the

Wallingford police station early the next morning.

Pet. App. 3A-4A.

Shortly after respondent’s arrival at the station,

police twice informed him of his rights under Miranda

vy. Arizona, 384 U.S. 436 (1966).’ Pet. App. 6A;

J.A. 6A, 9A, 19A, TOA, 74A, T7A-79A. On both

occasions, respondent indicated that he understood his

rights (id. at 12A, 70A; see id. at 130A) and signed

forms reprinting the Miranda warnings (id. at 7A-

8A, 10A, 23A, 70A, 74A, 794A). When asked whether

he wanted to make a statement, respondent replied

that “he would not give the police a[ny] written state-

ment[s] [concerning the assault in the absence of

counsel] but he had no problem in talking about the

incident” (id. at IMA; see id. at 21A, 70A, 85A, 97A).

With prompting from the police, respondent proceeded

to make incriminating statements (see id. at 85A-

88A). Respondent at no point indicated that he

1 Respondent also had been informed of his rights by the

New Haven police when he first was taken into custody (Tr.

234, 255, 298).

3

wanted to terminate the questioning (id. at 13A, 14A,

85A).?

After the completion of this interview, police dis-

covered that the tape recorder that was used to re-

cord the questioning had not functioned (Pet. App.

6A). Accordingly, they again advised respondent of

his Miranda rights (ibid.; J.A. 30A, 39A, 48A-49A,

89A), and he again stated that he understood his

rights (id. at 31A). As he had prior to the first in-

terview, respondent again declared “that he was will-

ing to talk about [the assault] verbally but he did

not want to put anything in writing until his at-

torney came” (id. at 44A). Respondent then substan-

tially repeated his statement (id. at 32A-33A, 45A,

56A, 102A).°

2. At trial, respondent sought to exclude testimony

relating the substance of his incriminating oral state-

ments.* He based his motion on the claim that he

had invoked his right to counsel when he refused to

give the police a written statement in the absence of

an attorney. After conducting a suppression hearing,

the trial court denied the motion. It found that re-

spondent had been informed of his rights, had indi-

cated that he understood them, had signed a standard

* Respondent’s statement took the form of a narrative

account of the assault, with intermittent prompting or ques-

tioning by the police. While respondent occasionally ignored

police questions and continued his narrative, he did not refuse

to answer any of the questions. J.A. 24A, 101A.

* At the end of this second interview, the police asked re-

spondent whether he would put his oral statement into writ-

ing. He refused to do so without the advice of counsel.

Pet. App. 6A.

* This testimony evidently was based on statements made

by respondent at both police interviews (see J.A. 99A-100A).

a

4

rights form, and had willingly spoken to the police.

J.A. 70A. The court also concluded that respondent

“certainly understood” his rights, noting that re-

spondent was aware that he was under no obligation

either to give a written statement in the absence of

an attorney or to answer all the questions directed at

him (ibid.). In light of those factors, the court held

that respondent’s oral statements were “willingly,

knowingly and intelligently [made] after an effec-

tive knowledgeable waiver of his right to counsel”

(id. at 71A). The statements accordingly were ad-

mitted at trial, and respondent was convicted of sex-

ual assault, unlawful restraint, and a narcotics viola-

tion.

The Supreme Court of Connecticut reversed, hold-

ing the interrogation of respondent impermissible un-

der Miranda and its progeny." The court found that

the relevant inquiry required it to make two determi-

nations: “(1) whether the defendant had in fact

invoked his right to counsel; and (2) if so, whether

he subsequently waived it” (Pet. App. 5A).

In the court’s view, respondent’s declaration to

police that he would not make a written statement in

the absence of an attorney sufficed to “invoke” his

right to counsel within the meaning of Miranda, and

therefore to require that the questioning cease (Pet.

App. 7A). The court also found it clear that “the

police understood this request for counsel” (ibid.).

And the court concluded (id. at 8A) that

[t]he fact that [respondent] attached his request

for counsel to the making of a written state-

ment does not affect the outcome of this first step

5 The court noted (Pet. App. 5A n.3) that respondent had

not raised any claim under the Connecticut constitution.

—E—

5

of our inquiry. No particular form of words has

ever been required to trigger an individual’s fifth

amendment protections; * * * nor have requests

for counsel been narrowly construed. * * * [ Re-

spondent’s}] refusal to give a written statement

without his attorney present was a clear request

for the assistance of counsel to protect his rights

in his dealings with the police. * * * Such a re-

quest continues to be constitutionally effective de-

spite [respondent’s] willingness to make oral

statements.

The court then proceeded to the second stage of its

analysis, inquiring whether respondent “subsequently

waived the right he had invoked” (Pet. App. 9A).

In the court’s view, such a waiver may be found only

if the defendant initiates a renewed discussion with

the police after making his initial request for an at-

torney (ibid.; see id. at 11A). Here, the court found

no evidence that, after declining to make a written

statement in the absence of counsel, respondent “‘ini-

tiated the subsequent encounters with police which

resulted in his incriminating statements. To the con-

trary, the evidence clearly established that the police

had initiated the interrogations.” Jbid. The court

accordingly found respondent’s incriminating state-

ments inadmissible, and it remanded the case for a

new trial.

SUMMARY OF ARGUMENT

This Court’s holding in Miranda vy. Arizona, 384

U.S. 436, 467 (1966), was grounded on the belief that

“the process of in-custody interrogation * * * con-

tains inherently compelling pressures which work to

undermine the individual’s will to resist and to com-

pel him to speak where he would not otherwise do so

freely.” To combat these pressures, the Court erected

6

a series of prophylactic procedural rules. It required

that police, prior to interrogation, give suspects the

now-familiar Miranda warnings. And the Court in-

sisted that all questioning cease whenever the suspect

“invokes” his right to remain silent or to request an

attorney. When a suspect indicates that he wishes to

remain silent, the Court explained, he “has shown

that he intends to exercise his Fifth Amendment

privilege; any statement taken after the person in-

vokes his privilege cannot be other than the product

of compulsion, subtle or otherwise.” Jd. at 474. Sim-

ilarly, the Court required the termination of question-

ing after the suspect requests counsel so as to fore-

stall “ ‘badger[ing]’ or ‘overreaching’ * * * [that]

might otherwise wear down the accused.” Smith v.

Illinois, No. 84-5332 (Dec. 10, 1984), slip op. 7-8

(citation omitted ).

The Supreme Court of Connecticut found these

prophylactic rules applicable here, holding that re-

spondent “invoked” his right to counsel within the

meaning of Miranda—and thus required the police to

terminate the interrogation immediately—when he

declared that he would answer questions orally, but

would not make a written statement in the absence of

counsel. Nothing in Miranda, however, suggests that

this sort of limited invucation of the right to counsel

mandates the termination of all questioning. To the

contrary, the Court has indicated that further ques-

tioning becomes inappropriate when the suspect “ex-

press[es] his desire to deal with the police only

through counsel.” Edwards v. Arizona, 451 U.S. 477,

484-485 (1981) (emphasis added). Respondent, of

course, expressed no such desire here.

This conclusion—permitting the interrogation to

continue when the suspect expresses reservations

7

about how he wishes questioning to proceed (reserva-

tions that are scrupulously respected) but does not

fully invoke his Miranda rights—follows directly from

the theory of Miranda. If the suspect is informed of

and understands his rights, yet expresses no reluc-

tance to answer the questions at issue, there is no

reason to indulge in Miranda’s presumption that the

answers to those questions “cannot be other than the

product of compulsion.” And when the suspect is at

all times willing to speak in the absence of counsel,

there obviously is no need to apply a rule intended

to guard against coercive badgering that might “wear

down the accused.”

2. In holding that respondent had fully invoked

his right to counsel, the Supreme Court of Connect-

icut noted only that requests for counsel should not

be narrowly construed. But respondent’s request was

not an ambiguous one that arguably should have been

read broadly to guarantee the kind of respect ac-

corded an equivocal assertion of the Fifth Amend-

ment privilege. The meaning of respondent’s limited

invocation of the right to counsel was entirely clear—

albeit narrow—and it left no doubt about his willing-

ness to answer questions orally in the absence of an

attorney.

If the Connecticut court’s holding instead is read

to express the theory that. once a suspect recognizes

the value of the assistance of counsel in some of his

dealings with the police, the courts must gratuitously

insist that all questioning cease unless an attorney

is present, it also is insupportable. Whatever tactical

advantages a suspect supposes to exist in his decision

to speak in the absence of counsel, neither the courts

nor the police are obligated to safeguard the suspect’s

interests more fully than the suspect himself has

thought necessary. Nothing in Miranda assumes or

8

seeks to guarantee that suspects will act wisely in

their dealings with law enforcement authorities. M/i-

randa’s rules ensure only that the accused will not be

compelled to confess by the atmosphere of in-custody

interrogation. By ignoring that single purpose, the

holding of the Supreme Court of Connecticut “would

transform the Miranda safeguards into wholly irra-

tional obstacles to legitimate police investigative ac-

tivity, and deprive suspects of an opportunity to make

informed and intelligent assessments of their inter-

ests.”” Michigan v. Mosley, 423 U.S. 96, 102 (1975).

ARGUMENT

RESPONDENT DID NOT INVOKE HIS RIGHT TO

COUNSEL PRIOR TO MAKING INCULPATORY

STATEMENTS

It is common ground that, under Miranda vy. Ari-

zona, 384 U.S. 486 (1966), law enforcement officers

must inform a suspect that he has the right to remain

silent or to request the presence of an attorney be-

fore he is subjected to custodial interrogation. See,

e.g., id. at 473-474; Moran v. Burbine, No. 84-1485

(Mar. 10, 1986), slip op. 6. It is similarly beyond

dispute that an in-custody interrogation must cease

once the suspect “invokes” his right to remain silent

or to the assistance of counsel by affirmatively assert-

ing those rights. See, e.g., Miranda, 384 U.S. at 473;

Smith y. Illinois, No. 84-5332 (Dee. 10, 1984), slip

op. 4-5. The narrow question in this case is whether

a suspect should be deemed to have invoked these

Miranda rights for all purposes—thus immediately

cutting off further interrogation—when he indicated

that he was willing to answer questions orally, but

not to make a written statement, in the absence of

counsel. The Supreme Court of Connecticut’s answer

to this question, which requires the termination of a

9

custodial interview even when the suspect has ex-

pressed no reluctance whatsoever to speak to the po-

lice in the absence of counsel, cannot be reconciled

with either the language or the purposes of Miranda.

1. The Court’s holding in Miranda was grounded

on the understanding that ‘“‘the process of in-custody

interrogation of persons suspected or accused of crime

contains inherently compelling pressures which work

to undermine the individual’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, slip op.

6). The requirement that police give suspects the

now-familiar Miranda warnings prior to interroga-

tion was intended “[t]o combat this inherent compul--

sion” (Moran, slip op. 6) by assuring that suspects

are “effectively apprised of their rights,” and thus

are placed in a position “permit[ting] a full oppor-

tunity to exercise the privilege against self-incrim-

ination.” Miranda, 384 U.S. at 467. See also Oregon

v. Elstad, No. 83-773 (Mar. 4, 1985), slip op. 12.°

If law enforcement officers fail to warn the suspect

of his right to remain silent or to request the pres-

ence of an attorney, or fail to obtain a valid waiver

of these rights from the suspect, statements made by

the suspect in response to police interrogation may

not be admitted into evidence. Moran, slip op. 6.

The Court also has looked to the presumptively co-

ercive nature of custodial interrogation in creating

other prophylactic rules governing the admissibility

of statements made by suspects. In particula., the

Court has held that all questioning must cease when-

°“Prior to any questioning, the person must be warned

that he has a right to remain silent, that any statement he

does make may be used as evidence against him, and that he

has [the] right to the presence of an attorney, either retained

or appointed.” Miranda, 384 U.S. at 444.

10

ever the suspect “invokes” his right to remain silent

or to request counsel. When a suspect indicates that

he wishes to remain silent, the Court has explained,

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 otherwise.” Miranda,

384 U.S. at 474. Similarly, the Court has enunciated

a “‘bright-line rule’ that all questioning must cease

after an accused requests counsel” (Smith, slip op. 7

(emphasis in original) ), unless the suspect himself

initiates subsequent discussions with the police. See

id. at 4-5; Edwards v. Arizona, 451 U.S. 477 (1981).

The Court has reasoned that, “[i]n the absence of

such a bright-line prohibition, the authorities through

‘badger[ing]’ or ‘overreaching’—explicit or subtle,

deliberate or unintentional—might otherwise wear

down the accused and persuade him to incriminate

himself notwithstanding his earlier request for coun-

sel’s assistance” (Smith, slip op. 7-8 (citation omit-

ted)). See id. at 8-9 n.8; Oregon v. Bradshaw, 462

U.S. 1039, 1044 (1983) (plurality opinion). See

also Michigan v. Mosley, 423 U.S. 96, 105-106 (1975).

2. The Supreme Court of Connecticut found this

“bright-line rule” applicable here. In the court’s

view, respondent “invoked” his right to counsel with-

in the meaning of Miranda, Edwards, and Smith

when he stated that he would answer questions orally,

but would not make a written statement in the ab-

sence of counsel. This invocation, the court held,

required the police to terminate the interrogation im-

mediately.

In reaching this conclusion, however, the court at-

tributed no significance to what respondent actually

told the police. When asked whether he would waive

his privilege against compulsory self-incrimination,

il

respondent replied that “he would not give the police

any written statements but he had no problem in

talking” (J.A. 12A; see id. at 44A). Nothing in

Miranda suggests that this sort of limited invocation

of the right to counsel requires the termina.ion of

all questioning. “While a general request for counsel

indicates an unwillingness to submit to any further

questioning,” a request for the assistance of counsel

only during certain portions of the interrogation

hardly “itself indicate[s] such an unwillingness.”

Stumes v. Solem, 752 F.2d 317, 320-321 (8th Cir.),

cert. denied, No. 84-6358 (Apr. 29, 1985). To the

contrary, Miranda in terms mandates cessation of

the interrogation only when the accused “indicates

that he wants [an attorney] before speaking to po-

lice’ (384 U.S. at 474 (emphasis added) ; see id. at

444-445). The Court’s more recent decisions in the

area likewise have indicated that further question-

ing becomes inappropriate when the suspect “ex-

press[es] his desire to deal with the police only

through counsel.” Edwards, 451 U.S. at 484-485 (em-

phasis added). See Smith, slip op. 4. And the Court

has made it clear that a suspect’s refusal to answer

particular questions is “not [an] assertion[] of his

right to remain silent” because such a refusal does

not amount to a request to terminate the interview

altogether. Fare v. Michael C., 442 U.S. 707, 727

(1979). ‘

The lower courts uniformly agree, moreover, that

a suspect does not fully invoke his right to remain

silent or to have the assistance of counsel when he re-

fuses to answer certain questions, or when he agrees

to make an oral but not a written statement. A lim-

ited invocation of the right to remain silent therefore

does not require that the interrogation cease alto-

gether. See Stuwmes, 752 F.2d at 320-321; United

12

States v. Jardina, 747 F.2d 945, 949 (5th Cir. 1984),

cert. denied, No. 84-6232 (Mar. 18, 1985); Harris v.

Riddle, 551 F.2d 936, 938-939 (4th Cir.), cert. de-

nied, 434 U.S. 849 (1977) ; United States v. Frazier,

476 F.2d 891, 899 (D.C. Cir. 1973) (en banc) ; United

States v. Cooper, 499 F.2d 1060, 1062 (D.C. Cir.

1974) ; Pettyjohn v. United States, 419 F.2d 651, 655

(D.C. Cir. 1969), cert. denied, 397 U.S. 1058 (1970) ;

State v. Jones, 125 N.H. 490, 493-494, 484 A.2d 1070,

1073 (1984). Thus, if a suspect, after being fully

advised of his Miranda rights, agrees to speak with

one officer but not another, or agrees to answer ques-

tions about one offense but not another, or agrees to

speak only if his statement is not recorded, the police

are not required to disregard the suspect’s decision

and treat his limited waiver as a full-scale invocation

of his right to remain silent for all purposes and on

all subjects. See, e.g., United States v. Thierman, 678

F.2d 1331, 1335 (9th Cir. 1982). So long as the

police respect the terms on which the suspect has

agreed to speak, and so long as they do not try to

inveigle him into expanding the scope of his waiver,

the products of the restricted interrogation to which

the suspect has consented should be fully admissible

at trial.

There is nothing surprising or anomalous in this

approach to the invocation of Miranda rights. The

theory of Miranda is that “full comprehension of

the rights to rem»in silent and request an attorney

are sufficient to dispel whatever coercion is inherent

in the interrogation process.” Moran, slip op. 13.

Once the suspect is armed with knowledge of these

rights, his choice whether to exercise his privilege to

remain silent should ordinarily be viewed as an “ ‘act

of free will.’” Elstad, slip op. 12 (citation omitted).

See United States v. Washington, 431 U.S. 181, 188

13

(1977). That reasoning is wholly applicable in a

case, such as this one, where the suspect invokes his

Miranda rights only to a limited extent and other-

wise chooses to continue his dialogue with the police.

If the suspect is informed of and understands his

rights, yet expresses no reluctance to answer the

questions at issue, there is no reason to indulge in

Miranda’s presumption that his answers to those

questions “cannot be other than the product of com-

pulsion” (384 U.S. at 474). And when the suspect

is at all times willing to speak, there obviously is no

need to apply a rule intended to guard against co-

ercive badgering that might “wear down the accused”

(Smith, slip op. 7-8).

3. In rejecting this analysis, the Supreme Court of

Connecticut simply failed to consider the policies that

underlie Miranda, and accordingly failed to ask the

question that is central in any Miranda challenge:

“whether the defendant in fact knowingly and volun-

tarily waived the rights delineated in the Miranda

case.” North Carolina v. Butler, 441 U.S. 369, 373

(1979). Instead, the Court noted only that requests

for counsel should not be “narrowly construed” (Pet.

App. 8A), and based its holding on the belief that

respondent’s limited invocation of his right to an

attorney was appropriately viewed as a general re-

quest for the assistance of counsel in protecting all

of “his rights in his dealings with the police” (ibid.).

But respondent’s request was not an ambiguous one

that arguably should have been construed broadly to

guarantee respect for an equivocal assertion of the

Fifth Amendment privilege. Cf. Smith, slip op. 5 &

n.3. The meaning of his limited invocation of the

right to counsel was entirely clear—albeit narrow—

and it left no doubt about his willingness to answer

questions orally in the absence of an attorney.

14

Similarly, if the Connecticut court’s holding is read

to express the theory that, once a suspect recognizes

the value of the assistance of counsel in some of his

dealings with the police, all questioning must cease

unless an attorney is present, it remains insupport-

able. Whatever the tactical merits of a suspect’s de-

cision to speak to the police in the absence of counsel,

neither the courts nor the police are obligated to safe-

guard the suspect’s interests more fully than the sus-

pect himself has thought necessary. See Moran, slip

op. 19 n.387. Miranda’s affirmative purpose was nei-

ther to make interrogations impossible nor to dis-

courage truly voluntary confessions. As the Court

repeatedly has noted, “ ‘far from being prohibited by

the Constitution, admissions of guilt by wrongdoers,

if not coerced, are inherently desirable.’” Eistad,

slip op. 6 (quoting Washington, 431 U.S. at 187).

See Moran, slip op. 12; New York v. Quarles, 467

U.S. 649, 654 (1984). Miranda’s rules ensure only

that such admissions by suspects are not coerced.

It follows from this rationale, of course, that

Miranda does not guarantee that suspects will act

in their own best interests in their dealings with po-

lice. That conclusion is implicit in the Court’s con-

sistent judgment that—despite the undeniable and

often-acknowledged value of an attorney in protect-

ing the interests of a suspect during custodial inter-

rogation, see, e.g., Miranda, 384 U.S. at 470; Michael

C., 442 U.S. at 719, 722—a lawyer need not be pres-

ent at every interrogation, and that the right to the

assistance of counsel may be waived even after it

has been invoked. See, e.g., Moran, slip op. 12;

Wyrick v. Fields, 459 U.S. 42, 46 (1982); Edwards,

451 U.S. at 485-486 & n.9. Indeed, the Court has held

explicitly that law enforcement agents are under no

obligation to remind or inform suspects of all of the

15

considerations, either legal or factual, that bear on

the wisdom of a waiver decision. See Moran, slip op.

11; Elstad, slip op. 17."

The Court thus consistently has “rejected any

paternalistic rule protecting a defendant from his in-

telligent and voluntary decisions about his own crimi-

nal ease,” reasoning that creating such a rule “would

be to ‘imprison a man in his privileges,’ Adams v.

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

(1942), and to disregard ‘that respect for the in-

dividual which is the lifeblood of the law,’ Faretta

v. California, [422 U.S. 806,] 834 [(1975)].” Mosley,

423 U.S. at 109 (footnote omitted) (White, J., con-

curring in the result). Taking such a tack would also

entirely disregard Miranda’s “explicitly stated ration-

ale” (Beckwith v. United States, 425 U.S. 341, 345

(1976) ), rooted in the Fifth Amendment’s privilege

against compulsory self-incrimination, which rests on

the proposition that a recitation of the Miranda

rights is necessary simply to prevent the suspect’s

will from being overborne. By departing from this

central inquiry into voluntariness, the Connecticut

court’s holding “would transform the Miranda safe-

guards into wholly irrational obstacles to legitimate

police investigative activity, and deprive suspects of

an opportunity to make informed and intelligent as-

sessments of their interests.” Mosley, 423 U.S. at

102. See Moran, slip op. 11.

In addition to disregarding the touchstone of volun-

tariness, the Connecticut court’s refusal to recognize

7“ T]he test is not whether [the suspect] made an intelli-

gent decision in the sense that it was wise or smart to admit

his participation in the crime, but whether his decision was

made with the full understanding that he need say nothing

at all and that he might then consult with a lawyer if he so

desired.” United States v. Hall, 396 F.2d 841, 846 (4th Cir.),

cert. denied, 393 U.S. 918 (1968).

16

a limited waiver could generate substantial confusion

in an area in which clear rules are essential. See

Moran, slip op. 11; Michael C., 442 U.S. at 718. Un-

der the Connecticut court’s analysis, for example, it

is not clear whether a suspect could be interviewed

if he agreed to talk to the police without counsel, but

indicated that he would like the assistance of counsel

at trial or at some later point in the proceedings.

Compare Nash v. Estelle, 597 F.2d 513, 518 (5th

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

(no bar to interrogation if police determine that sus-

pect wishes to invoke counsel for later stages of the

criminal process, but not during questioning). Thus,

the Connecticut rule would appear to make virtually

any request for the assistance of counsel, no matter

how clearly restricted to a context other than the in-

terrogation, sufficient to require that the questioning

cease. Because the police could not act in reliance on

the terms of the waiver set out by the suspect him-

self, they would ¥e left to speculate about whether a

particular reference to counsel would likely be con-

strued as an oblique—but sufficient—invocation of

the suspect’s right to counsel during interrogation.

4. When respondent stated that “he would not

give the police any written statements but he had no

problem in talking about the [assault],” he affirma-

tively indicated that he did not seek the presence of

counsel prior to answering questions; his inculpatory

remarks accordingly should not have been treated as

the presumptive product of compulsion. In these cir-

cumstances, the proper inquiry governing the admissi-

bility of respondent’s statements—an inquiry that

was not undertaken by the Supreme Court of Con-

necticut—involves the determination whether respond-

ent’s partial waiver of his Fifth Amendment privi-

17

lege was voluntarily, knowingly, and intelligently

made. As the Court repeatedly has explained, this

determination depends upon the particular facts and

circumstances surrounding the case. Bradshaw, 462

U.S. at 1046 (plurality opinion) ; Butler, 441 U.S. at

374-375; see also Edwards, 451 U.S. at 482; Michael

C., 442 U.S. at 724-725.

The answer to that inquiry is plain on the record

here. There is no doubt that respondent was informed

of his Miranda rights. Moreover, he testified at trial

(J.A. 130A), and the trial court found (id. at 70A),

that he understood those rights. The trial court also

determined (id. at 71A) that no threats or coercive

tactics were used to extract respondent’s statement.

And the questioning of respondent by police “was re-

strained and free from the abuses that so concerned

the Court in Miranda.” Michael C., 442 U.S. at 727.

Given these considerations, the trial court was clearly

correct in ruling in favor of the admissibility of re-

spondent’s statement. Compare Bradshaw, 462 U.S.

at 1046-1047.°

It may be added that the record here ‘eaves no

room for an assertion that respondent failed to under-

stand that an oral, as opposed to a written, statement

could be used against him at trial. In his pleadings

below, respondent at no point suggested any such

lack of understanding. In any event, as the Court has

8 In holding that respondent had invoked his Miranda rights,

the Supreme Court of Connecticut declared that the trial court

“impliedly found that the defendant had requested counsel”

(Pet. App. 7A (footnote omitted) ). The trial court, however,

never held that respondent had “invoked” his right to counsel ;

it simply noted in passing that respondent had expressed un-

willingness to give a written statement in the absence of an

attorney (see J.A. 70A).

18

suggested in a somewhat different context (Washing-

ton, 431 U.S. at 188), it seems “inconceivable that [a

Miranda] warning would fail to alert” a suspect to

the fact that, if he chooses to speak, “anything [he]

say[s] can and will be used against [him] in court”

(J.A. 48A). Cf. Kennedy v. Fairman, 618 F.2d 1242,

1248 (7th Cir. 1980). And as the courts of appeals

have noted, a suspect’s refusal to make a written

statement hardly compels the conclusion that he be-

lieved his oral remarks to be inadmissible: “It is

* * * a common experience of life that in many cir-

cumstances persons are willing to convey information

orally but are reluctant to put the same thing in

writing.” Cooper, 499 F.2d at 1062. See Harris, 551

F.2d at 938; Frazier, 476 F.2d at 898 & n.7. Cer-

tainly, the police should not have been required to

advise respondent that an oral statement could be

nearly as damaging at trial as a written one. Cf.

Eistad, slip op. 17-18 (police not required to advise

suspect that his prior statement could not be used

against him, even though without that information

he may not have been aware of the “full conse-

quences” of his decision to speak to the police).°

® Indeed, a number of courts have held confessions to be

admissible even where the suspect affirmatively “indicate[d]

a misapprehension of [the] law,” finding that ‘“Miranda does

not put upon the police the burden of explaining the rules of

evidence and the substantive criminal law.” Harris, 551 F.2d

at 938. Those courts have reasoned that a suspect makes an

intelligent waiver whenever he chooses “to speak with the

knowledge that he could keep silent or have counsel present

while he talked. * * * It is wholly irrelevant that the decision

to talk turns out to be wise or foolish, or that the decision is

the result of poor cerebration or misinformation as to the law

and/or the facts.” Jd. at 939. Accord, State v. Jones, 125 N.H.

490, 493-494, 484 A.2d 1070, 1071, 1073 (N.H. 1984) ; State v.

19

There accordingly were no grounds in this case for

the suppression of respondent’s statement.

CONCLUSION

The judgment of the Supreme Court of Connecticut

should be reversed.

Respectfully submitted.

CHARLES FRIED

Solicitor Genervl

STEPHEN S. TROTT

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

CHARLES A. ROTHFELD

Assistant to the Solicitor General

JULY 1986

McKnight, 52 N.J. 35, 54-55, 243 A.2d 240, 251 (1968). Cf.

People v. Williams, 62 N.Y.2d 285, 465 N.E.2d 327, 329 (1984).

See generally, Elstad, slip op. 18 (“we have not held that the

sine qua non for a knowing and intelligent waiver of the right

te remain silent is a full and complete appreciation of all of

the consequences flowing from the nature and the quality of

the evidence in the case’).

W ©. &. Governmenr painting orrice; 1966 491507 20271