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September 1991
CUSTODIAL INTERROGATION:
IMPACT OF MINNICK V. MISSISSIPPI
By
Kimberly A. Crawford
Special Agent
Legal Instructor
FBI Academy
Quantico, Virginia
In Minnick v. Mississippi, (1) the U.S. Supreme Court
announced a rule of law that could have a substantial impact on
the way many law enforcement agencies conduct custodial
interrogations. Specifically, the Court severely curtailed the
law enforcement officer's ability to reinitiate custodial
interrogation of suspects who had previously invoked the right
to counsel.
This article examines the Minnick decision and assesses its
impact. It also suggests legitimate steps officers can take to
limit its adverse effects on criminal investigations.
SUMMARY OF FACTS
Robert Minnick and James "Monkey" Dyess escaped from the
Clarke County Jail in Mississippi and were in the process of
burglarizing a mobile home when they were surprised by the
arrival of the occupants. Using weapons found in the home, the
escapees murdered two of the occupants and eventually fled the
scene in a stolen pickup truck. Minnick was arrested 4 months
later in California on a fugitive warrant.
Following his arrest, Minnick was interviewed by two FBI
agents. Prior to this interview, he was advised of his Miranda
(2) rights, and although he refused to sign a waiver, he agreed
to answer some questions. (3) During the course of the
interview, Minnick made some incriminating statements before
telling the agents that he would make a more-complete statement
when his lawyer was present. Believing that Minnick had invoked
his right to counsel, the agents promptly terminated the
interview.
Following the FBI interview, Minnick met with appointed
counsel. Three days later, Deputy Sheriff J.C. Denham of Clarke
County, Mississippi, arrived in California and attempted to
interview Minnick. Although once again declining to sign a
written waiver of his Miranda rights, Minnick agreed to talk
with Denham. Statements made during the subsequent interview
ultimately led to Minnick's prosecution for murder.
Prior to trial, Minnick moved to suppress his statements
made to Denham. That motion was denied by the trial court, and
Minnick was sentenced to death after being found guilty on two
counts of capital murder. Minnick's conviction and sentence
were upheld on appeal by the Mississippi Supreme Court. (4)
However, on review, (5) the U.S. Supreme Court reversed the
conviction.
THE COURT'S ANALYSIS
The fifth amendment to the U.S. Constitution provides in
part that "no person...shall be compelled in any criminal case
to be a witness against himself...." (6) Over 2 decades ago, the
Supreme Court in Miranda v. Arizona (7) held that custodial
interrogation of an individual creates a psychologically
compelling atmosphere that works against this fifth amendment
protection. (8)
In other words, the Court in Miranda presumed that an
individual in custody undergoing police interrogation would feel
compelled to respond to police questioning. This compulsion,
which is a by-product of most custodial interrogations, (9)
directly conflicts with an individual's fifth amendment
protection against self-incrimination. Accordingly, the Court
developed the now-familiar Miranda warnings as a means of
reducing the compulsion attendant in custodial interrogations.
The Miranda rule requires that these warnings be given and the
embodied rights waived prior to the initiation of custodial
interrogations.
If Miranda warnings are given, and individuals in custody
choose to exercise their rights by invoking either the right to
silence or counsel, the Court has held that all interrogations
must cease immediately. (10) Whether, and under what
conditions, law enforcement officers may subsequently readvise
an individual of his rights and attempt to secure a waiver
depends on which rights the individual has invoked.
In Michigan v. Mosley, (11) the Supreme Court essentially
interpreted the invocation of the right to silence as a request
for time so a suspect could think clearly about the situation.
If the suspect's initial request is scrupulously honored, the
Court held that attempts to reinterrogate may occur if given the
time asked for, or if he indicates, by initiating
communications, that he had enough time to think and has changed
his mind.
As a result, reinterrogations following an invocation of the
right to silence are deemed appropriate if: 1) A reasonable
period of time has elapsed; (12) or 2) interrogation was initiated
by the suspect. In either case, any renewed attempts to
interrogate a suspect must be preceded by a fresh warning of
Miranda rights and a waiver of those rights.
An invocation of the right to counsel, on the other hand,
necessarily carries with it a different set of procedural
safeguards. Obviously, a suspect invoking the right to counsel
is not simply asking for time to assess the situation; he is,
instead, requesting the assistance of an attorney. Whether this
request is satisfied by giving the suspect an opportunity to
consult with an attorney or requires the actual presence of an
attorney during questioning was the issue before the Court in
Minnick.
Minnick's motion to suppress the statements made to Denham
was based on his claim that under the fifth amendment, (13) the
earlier invocation of his right to counsel during the FBI
interview precluded Denham from making any subsequent attempts
to question him in the absence of counsel. In opposition, the
government argued that Minnick's fifth amendment rights had been
satisfied when he was given the opportunity to consult with his
counsel on two or three occasions prior to meeting with Denham.
In order to resolve this issue, the Supreme Court found it
necessary to revisit the Miranda decision and its progeny to
determine when, if ever, law enforcement officers may reinitiate
interrogation of an in-custody suspect who has invoked the right
to counsel.
"MIRANDA" REVISITED
In Miranda, the Court held that "once an individual in
custody invokes his right to counsel, interrogation `must cease
until an attorney is present; at that point, the individual must
have an opportunity to confer with the attorney and to have him
present during any subsequent questioning.'" (14) Later, in
Edwards v. Arizona, (15) the Supreme Court attempted to clarify
its holding in Miranda by announcing the following rule:
"...an accused..., having expressed his desire to
deal with police only through counsel, is not subject
to further interrogation by the authorities until
counsel has been made available to him, unless the
accused himself initiates further communication,
exchanges, or conversations with the police." (16)
Following Edwards, many courts focused on the expression
"made available to him" and concluded that the rule simply
required that a suspect in custody who had invoked the right to
counsel be given the opportunity to consult or confer with his
attorney before law enforcement officers could lawfully attempt
to reinterrogate him. (17) Under this interpretation, there
would be no necessity to show that the suspect had actually
consulted with an attorney, but only that he had been afforded
the opportunity to do so. The Supreme Court, however, held that
such an interpretation of Edwards was both unintended and
inconsistent with Miranda. Therefore, the Court concluded that
"when counsel is requested [by a suspect in custody],
interrogation must cease, and officials may not reinitiate
interrogation without counsel present, whether or not the
accused has consulted with his attorney." (18) Applying this
rule to the facts in Minnick, the Court found that because
Minnick had invoked his right to counsel during the FBI
interview and Deputy Sheriff Denham subsequently reinitiated
interrogation without counsel being present, Minnick's rights
under Miranda had been violated, and the resulting statements
must be suppressed.
IMPACT OF "MINNICK"
As a result of Minnick, law enforcement officers will be
unable to interrogate a suspect in custody once that suspect has
invoked the right to counsel unless: 1) The suspect's attorney
is actually present; or 2) the suspect changes his mind and
reinitiates the interrogation. (19) Because the first
alternative is frequently unpalatable and the second unlikely,
custodial reinterrogations after requests for counsel may
quickly become rare.
Although not specifically addressed by the Supreme Court,
it is important to note that the rule in Minnick will
undoubtedly apply regardless of the crime that is the intended
topic of the reinterrogation. (20) In other words, when an
individual is advised of his Miranda rights and invokes the
right to counsel, he is not simply saying that he will not deal
with the police about the crime for which he has been arrested
without the assistance of an attorney. Rather, a request for
counsel under these conditions implies that the individual will
not deal with the police on any criminal matter without the
benefit of counsel. Consequently, once a suspect invokes the
right to counsel under the fifth amendment, law enforcement
officers are prohibited from initiating further custodial
interrogation involving the original crime or any other criminal
act without complying with the dictates of Minnick by having the
suspect's attorney present.
Moreover, the rule in Minnick appears to be perpetual; once
a suspect in custody invokes the right to counsel, the
prohibition against reinterrogation remains in effect as long as
custody continues. Conceivably, a suspect who invokes the right
to counsel during the early stages of custody and is thereafter
unable to make bond could be shielded from all further
interrogation throughout the remainder of the prosecution of the
case and for as long as he is incarcerated. (21)
LIMITING THE ADVERSE EFFECTS OF "MINNICK"
Writing the dissenting opinion in Minnick, Justice Scalia
recognized the far-reaching effects of the Court's decision on
law enforcement when he made the following statement:
"Today's ruling, that the invocation of a right to counsel
permanently prevents a police-initiated waiver, makes it
largely impossible for the police to urge a prisoner who
has initially declined to confess to change his mind--or
indeed, even to ask whether he has changed his mind." (22)
While the Minnick decision may hamper law enforcement efforts to
conduct custodial interrogations, there are certain legitimate
steps law enforcement officers can take to limit its adverse
effects on criminal investigations.
The first step law enforcement officers should take is to
ensure that they understand and take advantage of the procedural
differences that are required when a suspect invokes the right
to silence as opposed to invoking the right to counsel. Because
there is a significant difference between the procedural
protections offered to a suspect who invokes the right to
counsel and one who merely expresses a desire to remain silent,
law enforcement officers should be certain they know which right
a suspect is invoking. If, following the advice of rights, the
suspect's response leads officers to believe that the suspect is
invoking his rights, but the officers are unsure of which right
is being invoked, the officers could conceivably follow up by
asking the suspect if he is, in fact, invoking the right to
silence. If a suspect gives an affirmative response, then
officers should immediately stop questioning. However, since
only the right to silence has been invoked, a second attempt to
obtain a waiver may be made after waiting a reasonable period of
time.
Similarly, when a suspect is being read his rights for the
first time, it may be best to avoid encouraging a blanket
invocation of rights that could occur if the entire list of
rights is given before inquiring whether the suspect wishes to
waive or invoke any or all of them. There is nothing in the
rule to preclude the suspect being told first that he has the
right to remain silent and then asked whether he wishes to waive
that right.
If the suspect indicates a desire to waive the right to
silence, then he should be advised of the remainder of his
rights and asked whether he wishes to waive those rights as
well. If, on the other hand, the suspect is first advised of
the right to remain silent and chooses to invoke that right,
then no further advice of rights need be given at that time and
the interrogation should cease.
However, a subsequent attempt to interview a suspect could
be made after waiting a reasonable period of time, since only
the right to silence was invoked. By refraining from advising a
suspect of the right to counsel until the right to silence has
been waived, the law enforcement officer may reduce the
possibility that the rule in Minnick will be triggered.
Along these same lines, law enforcement officers should be
extremely careful when documenting an invocation of rights.
Because the procedural safeguards offered to a suspect depend on
the specific right invoked, officers should maintain accurate
records indicating the actual language a suspect used to invoke
his rights. By doing so, officers will later be able to
establish which right was invoked and demonstrate that they
afforded the suspect the appropriate safeguards.
Finally, law enforcement officers should be careful not to
apply this rule in instances where it is not required. For
example, if a suspect makes a request for counsel at a judicial
proceeding, as opposed to during custodial interrogation, police
are not barred from interviewing that suspect concerning other
uncharged offenses.
The Court in Minnick based its decision on Miranda, which
is intended to govern custodial interrogations and protect the
fifth amendment privilege against self-incrimination. Minnick
does not apply when the right invoked is the sixth amendment
right to counsel.
In Michigan v. Jackson, (23) the Court held that an
individual's request for the appointment of counsel at an
initial appearance constitutes an invocation of the sixth
amendment right to counsel, which only precludes
police-initiated interrogation regarding the crime for which the
individual was charged. (24) And recently, in McNeil v.
Wisconsin, (25) the Court reaffirmed that the invocation of the
sixth amendment right to counsel at issue in Jackson is
crime-specific and does not make suspects "unapproachable by
police officers suspecting them of involvement in other crimes,
even though they had never expressed any unwillingness to be
questioned." (26)
Thus, a suspect who invokes the sixth amendment right to
counsel by requesting the appointment of an attorney at an
initial appearance cannot, thereafter, be subjected to
police-initiated interrogation regarding the crime for which he
has been charged. (27) However, because the suspect's invocation
of the sixth amendment rights is not the same as an invocation
of the fifth amendment rights, Minnick would not preclude
police-initiated interrogation on unrelated matters, as long as
the Miranda safeguards for custodial interrogation are
satisfied.
CONCLUSION
The Supreme Court's decision in Minnick is likely to cause
many law enforcement agencies to change their policies and
practices regarding custodial interrogations. No longer will
law enforcement officers be permitted to reinitiate custodial
interrogation of a suspect who had previously invoked the right
to counsel without having the suspect's attorney present. When
assessing their policies, however, law enforcement agencies
should be careful to keep Minnick in its proper fifth amendment
perspective and consider various options, such as the
suggestions discussed above, that could limit the effects of the
rule.
FOOTNOTES
(1) 111 S.Ct. 486 (1990) (hereinafter cited as Minnick).
(2) Miranda v. Arizona, 384 U.S. 436 (1966) (hereinafter
cited as Miranda).
(3) The FBI report indicates Minnick waived his rights
and said he would not answer "very many" questions, Minnick,
supra note 1, at 488.
(4) Minnick v. State, 551 So.2d 77 (Miss. 1988).
(5) The Supreme Court granted certiorari at 110 S.Ct. 1921
(1990).
(6) U.S. Const. Amend. V.
(7) Miranda, supra note 2.
(8) Id. at 436.
(9) Not all forms of custodial interrogation create the
compelling atmosphere that Miranda was designed to protect
against. See, e.g., Illinois v. Perkins, 110 S.Ct. 2394 (1990).
(10) Miranda, supra note 2, at 474.
(11) 423 U.S. 96 (1975).
(12) In Mosley, 2 hours were considered to be a sufficient
period of time. Id.
(13) Minnick also claimed that the statements in question
were taken in violation of his sixth amendment right to counsel.
Reversing Minnick's conviction on fifth amendment grounds, the
Court found it unnecessary to address the sixth amendment issue.
(14) Minnick, supra note 1, at 489, quoting Miranda, supra
note 2, at 474.
(15) 451 U.S. 477 (1981).
(16) Id. at 485, 486.
(17) See, e.g., United States v. Skinner, 667 F.2d 1306
(9th Cir. 1982), cert. denied, 103 S.Ct. 3569 (1983), (court
found defendant who was released after requesting counsel, then
re-arrested, had the opportunity to consult with counsel, and
therefore, his rights were satisfied). See also, United States
v. Halliday, 658 F.2d 1103 (6th Cir. 1980), cert. denied, 102
S.Ct. 978 (1981).
(18) Minnick, supra note 1, at 491.
(19) In Minnick, the Court stated that "Edwards does not
foreclose finding a waiver of Fifth Amendment protections after
counsel has been requested, provided the accused has initiated
the conversation or discussions with the authorities...."
Minnick, supra note 1, at 492.
(20) See, Arizona v. Roberson, 108 S.Ct. 2093 (1988),
where the Supreme Court held that the assertion of the right to
counsel is effective against all topics of custodial
interrogation.
(21) In a prison setting, the perpetuality of this rule
could make it virtually impossible to conduct routine
interrogations of inmates suspected of committing new crimes
without having an attorney on hand to represent the inmates
interests.
(22) Minnick, supra note 1, at 496 (Scalia, J., dissenting).
(23) 106 S.Ct. 1404 (1986).
(24) The Court in Jackson found that the rule in Edwards
applied in the sixth amendment context. Consequently, it can be
deduced that reinterrogation would be permitted in the sixth
amendment context if initiated by the suspect or done in the
presence of the suspect's attorney.
(25) ___S.Ct.___ (1991).
(26) ___S.Ct.___, ___ (1991).
(27) At the present time, it is unclear whether a
non-custodial suspect, who previously invoked his sixth
amendment right to counsel, could be requested to waive that
right without having an attorney present. Because Edwards has
been applied in the sixth amendment context, and Minnick is
simply an interpretation of Edwards, it would appear that the
rule in Minnick could preclude any police-initiated attempts to
obtain a waiver of a previously invoked sixth amendment right to
counsel outside the presence of the suspect's attorney.