Miranda Confusion

by Charles Gillingham

"The business of the law is to make sense of the confusion of what we call human life, to reduce it to some order but at the same time to give it possibility, scope, even dignity." Archibald MacLeish

We in the criminal justice system, and you in law enforcement, know and understand the underlying humor in the above quotation. Certainly the questions that come up daily in this field are fact driven, and fact dependent. Every day the courts seem to alter or abruptly change what we understood was settled creating confusion. Our goal is the same, however, to exonerate the innocent, fairly hold the guilty accountable and protect the public. The "Miranda" warning, when, how, and to whom to give it, along with the ever evolving changes to case law creates confusion. The Shatzer decision has created some confusion. Let's revisit the decision.

SHATZER

The law used to be that once a suspect invoked the right to an attorney in an interrogation, officers were prohibited from approaching the suspect and questioning her again. The only way to approach that suspect was when the suspect had consulted an attorney or the suspect approached the officers and reinitiated contact. Edwards v. Arizona 451 U.S. 477

Recently, the U.S. Supreme Court in Maryland v. Shatzer 130 S.Ct. 1213, reviewed the Edwards rule and found it unrealistic. The Court set a bright line rule for when officers can approach a suspect who previously invoked the right to counsel.

The Court stated that officers must wait 14 fourteen days after an invocation of the right to an attorney before approaching a suspect to again attempt to question her. There must also be a break from "interrogation custody" for those 14 days. There also must be a break from any interrogation for 14 days.

In Shatzer's case, he was in prison, questioned about a case and invoked. A few years later the officers developed more information and returned to the prison to question Shatzer. They Mirandized him and he made admissions. He moved to suppress those statements arguing once he invoked his right to an attorney it was forever invoked. The Shatzer court said no and set forth the 14 day rule.

QUESTION

What if you question a defendant, he invokes the right to an attorney and he is charged with one count?
Defendant is then arraigned and has an attorney represent him as to the only charged count. Defendant is in custody. While he is in custody you develop information of more criminal activity by the suspect and wish to go back and question him. Can you?

The answer is Yes with two conditions. One, you wait the 14 days, second, you question him ONLY about the new charges. You are prohibited from questioning him about the charged crime.

WHAT ABOUT INVOCATION OF THE RIGHT TO REMAIN SILENT?

A Couple of Points---Shatzer ONLY addresses the situation where a suspect invokes his/her right to a lawyer. Shatzer did not address a situation where the suspect invokes their right to remain silent.

When a suspect invokes the right to remain silent the rules are the same as before. They have not changed. To be totally safe, you might want to wait the 14 days in the scenario where the defendant has invoked his right to remain silent, although there is no requirement to do so.