Once a custodial suspect has been given Miranda warnings and has acknowledged his understanding, he might waive his rights and submit to questioning, or he might invoke—either by indicating that he doesn't want to talk, or by requesting counsel.
If he invokes only the right to silence and does not ask for an attorney, and if you "scrupulously honor" this invocation by ceasing all questioning, Michigan v. Mosely holds that you may later re-approach him to see if he has changed his mind and now wants to waive and talk—either about the same case, or a different case.
However, if he invokes his right to counsel, Edwards v. Arizona says that he is not subject to further police-initiated questioning on any case during continuous custody until an attorney is present.
But what if the suspect changes his mind and decides he wants to talk to you after all? Can you then resume discussions? And if so, what is the proper sequence of steps you should follow? Although the answers are in a 30-year-old decision of the U.S. Supreme Court, many officers (and lawyers and judges) remain unfamiliar with them.
James Edward Bradshaw was driving under the influence when he ran off the road and crashed into a tree and an embankment, rolled into a creek, and caused the death of his passenger by blunt force trauma and drowning. After arrest, he was Mirandized, and he said, "I do want an attorney before it goes much further." The officer immediately terminated questioning.
En route to county jail, Bradshaw asked the officer, "Well, what is going to happen to me now?" The officer explained that since Bradshaw had requested an attorney, the officer would not discuss the case "unless you so desire." The officer suggested that Bradshaw consider taking a polygraph exam, and Bradshaw agreed to do so.
Before the polygraph, Miranda warnings were repeated, Bradshaw waived, and he ultimately made statements that were used to convict him of manslaughter and driving offenses. The Oregon Court of Appeals reversed the convictions, ruling that no interrogation could occur once a suspect in custody had requested an attorney, per Edwards. The state appealed, and the U.S. Supreme Court reversed the Oregon ruling, reinstating the convictions.
The Supreme Court said that even though Edwards prevents the police from reinitiating discussions about any case once a custodial suspect has asked for counsel that has not yet been provided, the Edwards case also made clear that this rule does not apply if "the accused himself initiates further communication, exchanges, or conversations with the police." As the court later summarized the rule in Davis v. U.S., "If a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation."
So the first lesson to be drawn from Bradshaw is that even after the suspect has invoked his right to silence or his right to counsel, he can always change his mind and reinitiate discussions. No formality or magic words are necessary. Something as simple as "What's going to happen now?" could be enough, as the Supreme Court held:
"There can be no doubt in this case that in asking, 'Well, what is going to happen to me now?' respondent 'initiated' further conversation. Although ambiguous, the respondent's question in this case as to what was going to happen to him evinced a willingness and a desire for a generalized discussion about the investigation. On these facts, we believe that there was no violation of the Edwards rule." (Oregon v. Bradshaw)
Because volunteered statements (not being elicited by police interrogation) are never suppressible on Miranda grounds, the next step when a suspect reinitiates discussions is to listen to him, without interruptions, and without trying to clarify or amplify on what he is saying. Just listen. "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." (Miranda v. Arizona)
When you're ready to resume interrogation after hearing any statements the suspect volunteers, "the next inquiry is whether a valid waiver of the right to counsel and the right to silence has occurred." (Oregon v. Bradshaw) In the Bradshaw case, this requirement was met by the fact that warnings had been repeated before the polygraph exam and the suspect had given a voluntary waiver. So if an invoking suspect reinitiates discussions, then after you've listened to any explanations, stories, or statements he volunteers, and before resuming your interrogation, give the warnings again and take a waiver of his previously asserted rights. Statements you take under this sequence should be admissible, as in the following cases:
U.S. v. Duggan (Fifth Circuit—Texas). After waiving and talking for 20 minutes, a firearms arrestee asked if he could speak to an attorney. Questioning stopped, and the officer gave the suspect a phone. Instead of calling his lawyer, the suspect volunteered that he knew the guns were in his home but said that they were not stolen. The officer re-Mirandized, took a waiver, and obtained a videotaped confession. The court held this confession admissible, per Bradshaw.
U.S. v. Huerta (Seventh Circuit—Indiana). A narcotics arrestee invoked counsel. Detectives did not speak to her again until they asked her for her shoes. She asked why they wanted her shoes, and their explanation led to her saying that she wanted to talk further without an attorney. "Before the second interrogation began, Ms. Huerta was advised of her rights and then signed the waiver form, thus fulfilling the waiver requirement." Statements admissible.
U.S. v. Michaud (Ninth Circuit—Nevada). After telling interrogators she wanted an attorney, a kidnap suspect was placed into a holding cell. Later, her cellmate told a deputy that Michaud "needed to talk to somebody." Officers met Michaud and her cellmate and asked Michaud if she needed to get something off her chest. She said she had some information about a girl who had been killed. New Miranda warnings were read, and Michaud signed a waiver form and submitted to interrogation. The court held that the officers properly followed the Bradshaw sequence and Michaud's statements were admissible.
U.S. v. Gonzalez (Eleventh Circuit—Florida). Following the suspect's invocation of counsel, his wife was interviewed. She told a narcotics officer that her husband wanted to talk to him "immediately," so the officer went to the jail, gave Gonzalez another Miranda warning, and took both a waiver and a 13-page confession. The court held that Gonzalez had reinitiated the questioning, "albeit through his agent, his wife." Since the officer took a waiver of the rights Gonzalez had previously asserted, his confession was properly admitted against him.
The Bradshaw Sequence
Whenever your Mirandized suspect asserts his right to silence or counsel, you may hand him your card and say, "Call me if you change your mind." If he subsequently reinitiates discussions, follow these steps:
- Listen to his volunteered statements.
- Confirm that he now wants to talk to you.
- Give a new Miranda warning and seek a waiver.
Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as special counsel to the Los Angeles County district attorney. He is the author of 12 books, including "Investigative Constitutional Law."