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Subject: 90-5319 -- OPINION, McNEIL v. WISCONSIN




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-5319



PAUL McNEIL, PETITIONER v. WISCONSIN


on writ of certiorari to the supreme court of wisconsin

[June 13, 1991]



    Justice Scalia delivered the opinion of the Court.
    This case presents the question whether an accused's invocation of his
Sixth Amendment right to counsel during a judicial proceeding constitutes
an invocation of his Miranda right to counsel.

I
    Petitioner Paul McNeil was arrested in Omaha, Nebraska, in May 1987,
pursuant to a warrant charging him with an armed robbery in West Allis,
Wisconsin, a suburb of Mil waukee.  Shortly after his arrest, two Milwaukee
County deputy sheriffs arrived in Omaha to retrieve him.  After advising
him of his Miranda rights, the deputies sought to question him.  He refused
to answer any questions, but did not request an attorney.  The deputies
promptly ended the interview.
    Once back in Wisconsin, petitioner was brought before a Milwaukee
County court commissioner on the armed robbery charge.  The Commissioner
set bail and scheduled a preliminary examination.  An attorney from the
Wisconsin Public Defender's office represented petitioner at this initial
appearance.
    Later that evening, Detective Joseph Butts of the Mil waukee County
Sheriff's Department visited petitioner in jail.  Butts had been assisting
the Racine County, Wisconsin, police in their investigation of a murder,
attempted murder, and armed burglary in the town of Caledonia; petitioner
was a suspect.  Butts advised petitioner of his Miranda rights, and
petitioner signed a form waiving them.  In this first interview, petitioner
did not deny knowledge of the Caledonia crimes, but said that he had not
been involved.
    Butts returned two days later with detectives from Cale donia.  He
again began the encounter by advising petitioner of his Miranda rights, and
providing a waiver form.  Petitioner placed his initials next to each of
the warnings and signed the form.  This time, petitioner admitted that he
had been involved in the Caledonia crimes, which he described in detail.
He also implicated two other men, Willie Pope and Lloyd Crowley.  The
statement was typed up by a detective and given to petitioner to review.
Petitioner placed his initials next to every reference to himself and
signed every page.
    Butts and the Caledonia Police returned two days later, having in the
meantime found and questioned Pope, who convinced them that he had not been
involved in the Caledonia crimes.  They again began the interview by
administering the Miranda warnings, and obtaining petitioner's signature
and initials on the waiver form.  Petitioner acknowledged that he had lied
about Pope's involvement to minimize his own role in the Caledonia crimes,
and provided another statement recounting the events, which was
transcribed, signed, and initialed as before.
    The following day, petitioner was formally charged with the Caledonia
crimes and transferred to that jurisdiction.  His pretrial motion to
suppress the three incriminating statements was denied.  He was convicted
of second-degree murder, attempted first-degree murder, and armed robbery,
and sentenced to 60 years in prison.
    On appeal, petitioner argued that the trial court's refusal to suppress
the statements was reversible error.  He contended that his courtroom
appearance with an attorney for the West Allis crime constituted an
invocation of the Mi randa right to counsel, and that any subsequent waiver
of that right during police-initiated questioning regarding any offense was
invalid.  Observing that the State's Supreme Court had never addressed this
issue, the Court of Appeals certified to that court the following
question:

    "Does an accused's request for counsel at an initial appearance on a
charged offense constitute an invocation of his fifth amendment right to
counsel that precludes police interrogation on unrelated, uncharged
offenses?"  App. 16.


    The Wisconsin Supreme Court answered "no."  155 Wis. 2d 24, 454 N. W.
2d 742 (1990).  We granted certiorari, 498 U. S. --- (1990).

II
    The Sixth Amendment provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for
his defence."  In Michigan v. Jackson, 475 U. S. 625 (1986), we held that
once this right to counsel has attached and has been invoked, any
subsequent waiver during a police-initiated custodial interview is
ineffective.  It is undisputed, and we accept for purposes of the present
case, that at the time petitioner provided the incriminating statements at
issue, his Sixth Amendment right had attached and had been invoked with
respect to the West Allis armed robbery, for which he had been formally
charged.
    The Sixth Amendment right, however, is offense-specific.  It cannot be
invoked once for all future prosecutions, for it does not attach until a
prosecution is commenced, that is, " `at or after the initiation of
adversary judicial criminal proceedings -- whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.' "  United
States v. Gouveia, 467 U. S. 180, 188 (1984) (quoting Kirby v. Illinois,
406 U. S. 682, 689 (1972) (plurality opinion)).  And just as the right is
offense-specific, so also its Michigan v. Jackson effect of invalidating
subsequent waivers in police-initiated interviews is offense-specific.

"The police have an interest . . . in investigating new or additional
crimes [after an individual is formally charged with one crime.] . . .
[T]o exclude evidence pertaining to charges as to which the Sixth Amendment
right to counsel had not attached at the time the evidence was obtained,
simply because other charges were pending at that time, would unnecessarily
frustrate the public's interest in the investigation of criminal
activities. . . ."  Maine v. Moulton, 474 U. S. 159, 179-180 (1985).
    "Incriminating statements pertaining to other crimes, as to which the
Sixth Amendment right has not yet attached, are, of course, admissible at a
trial of those offenses."  Id., at 180, n. 16.


See also Moran v. Burbine, 475 U. S. 412, 431 (1986).  Because petitioner
provided the statements at issue here before his Sixth Amendment right to
counsel with respect to the Caledonia offenses had been (or even could have
been) invoked, that right poses no bar to the admission of the statements
in this case.
    Petitioner relies, however, upon a different "right to counsel," found
not in the text of the Sixth Amendment, but in this Court's jurisprudence
relating to the Fifth Amendment guarantee that "[n]o person . . . shall be
compelled in any criminal case to be a witness against himself."  In
Miranda v. Arizona, 384 U. S. 436 (1966), we established a number of
prophylactic rights designed to counteract the "inherently compelling
pressures" of custodial interrogation, including the right to have counsel
present.  Miranda did not hold, however, that those rights could not be
waived.  On the contrary, the opinion recognized that statements elicited
during custodial interrogation would be admissible if the prosecution could
establish that the suspect "knowingly and intelligently waived his
privilege against self-incrimination and his right to retained or appointed
counsel."  Id., at 475.
    In Edwards v. Arizona, 451 U. S. 477 (1981), we established a second
layer of prophylaxis for the Miranda right to counsel: once a suspect
asserts the right, not only must the current interrogation cease, but he
may not be approached for further interrogation "until counsel has been
made available to him," 451 U. S., at 484-485 -- which means, we have most
recently held, that counsel must be present, Minnick v. Mississippi, 498 U.
S. --- (1990).  If the police do subsequently initiate an encounter in the
absence of counsel (assuming there has been no break in custody), the
suspect's statements are presumed involuntary and therefore inadmissible as
substantive evidence at trial, even where the suspect executes a waiver and
his statements would be considered voluntary under traditional standards.
This is "designed to prevent police from badgering a defendant into waiving
his previously asserted Miranda rights," Michigan v. Harvey, 494 U. S. 344,
350 (1990).  The Edwards rule, moreover, is not offense-specific: once a
suspect invokes the Miranda right to counsel for interrogation regarding
one offense, he may not be reapproached regarding any offense unless
counsel is present.  Arizona v. Roberson, 486 U. S. 675 (1988).
    Having described the nature and effects of both the Sixth Amendment
right to counsel and the Miranda-Edwards "Fifth Amendment" right to
counsel, we come at last to the issue here: Petitioner seeks to prevail by
combining the two of them.  He contends that, although he expressly waived
his Miranda right to counsel on every occasion he was interrogated, those
waivers were the invalid product of im permissible approaches, because his
prior invocation of the offense-specific Sixth Amendment right with regard
to the West Allis burglary was also an invocation of the
non-offensespecific Miranda-Edwards right.  We think that is false as a
matter of fact and inadvisable (if even permissible) as a contrary-to-fact
presumption of policy.
    As to the former: The purpose of the Sixth Amendment counsel guarantee
-- and hence the purpose of invoking it -- is to "protec[t] the unaided
layman at critical confrontations" with his "expert adversary," the
government, after "the adverse positions of government and defendant have
solidified" with respect to a particular alleged crime.  Gouveia, 467 U.
S., at 189.  The purpose of the Miranda-Edwards guarantee, on the other
hand -- and hence the purpose of invoking it -- is to protect a quite
different interest: the suspect's "desire to deal with the police only
through counsel," Edwards, 451 U. S., at 484.  This is in one respect
narrower than the interest protected by the Sixth Amendment guarantee
(because it relates only to custodial interrogation) and in another respect
broader (because it relates to interrogation regarding any suspected crime
and attaches whether or not the "adversarial relationship" produced by a
pending prosecution has yet arisen).  To invoke the Sixth Amendment
interest is, as a matter of fact, not to invoke the Miranda-Edwards in
terest.  One might be quite willing to speak to the police without counsel
present concerning many matters, but not the matter under prosecution.  It
can be said, perhaps, that it is likely that one who has asked for
counsel's assistance in defending against a prosecution would want counsel
present for all custodial interrogation, even interrogation unrelated to
the charge.  That is not necessarily true, since suspects often believe
that they can avoid the laying of charges by demonstrating an assurance of
innocence through frank and unassisted answers to questions.  But even if
it were true, the likelihood that a suspect would wish counsel to be pres
ent is not the test for applicability of Edwards.  The rule of that case
applies only when the suspect "ha[s] expressed" his wish for the particular
sort of lawyerly assistance that is the subject of Miranda.  Edwards,
supra, at 484 (emphasis added).  It requires, at a minimum, some statement
that can reasonably be construed to be expression of a desire for the
assistance of an attorney in dealing with custodial interrogation by the
police.  Requesting the assistance of an attorney at a bail hearing does
not bear that construction.  "[T]o find that [the defendant] invoked his
Fifth Amendment right to counsel on the present charges merely by
requesting the appointment of counsel at his arraignment on the unrelated
charge is to disregard the ordinary meaning of that request."  State v.
Stewart, 113 Wash. 2d 462, 471, 780 P. 2d 844, 849 (1989), cert. denied,
494 U. S. --- (1990).
    Our holding in Michigan v. Jackson, 475 U. S. 625 (1986), does not, as
petitioner asserts, contradict the foregoing distinction; to the contrary,
it rests upon it.  That case, it will be recalled, held that after the
Sixth Amendment right to counsel attaches and is invoked, any statements
obtained from the accused during subsequent police-initiated custodial
questioning regarding the charge at issue (even if the accused purports to
waive his rights) are inadmissible.  The State in Jackson opposed that
outcome on the ground that assertion of the Sixth Amendment right to
counsel did not realistically constitute the expression (as Edwards
required) of a wish to have counsel present during custodial interrogation.
See 475 U. S., at 632-633.  Our response to that contention was not that it
did constitute such an expression, but that it did not have to, since the
relevant question was not whether the Miranda "Fifth Amendment" right had
been asserted, but whether the Sixth Amendment right to counsel had been
waived.  We said that since our "settled approach to questions of waiver
requires us to give a broad, rather than a narrow, interpretation to a
defendant's request for counsel, . . . we presume that the defendant
requests the lawyer's services at every critical stage of the prosecution."
475 U. S., at 633 (emphasis added).  The holding of Jackson implicitly
rejects any equivalence in fact between invocation of the Sixth Amendment
right to counsel and the expression necessary to trigger Edwards.  If such
invocation constituted a real (as opposed to merely a legally presumed)
request for the assistance of counsel in custodial interrogation, it would
have been quite unnecessary for Jackson to go on to establish, as it did, a
new Sixth Amendment rule of no policeinitiated interrogation; we could
simply have cited and relied upon Edwards. {1}
    There remains to be considered the possibility that, even though the
assertion of the Sixth Amendment right to counsel does not in fact imply an
assertion of the Miranda "Fifth Amendment" right, we should declare it to
be such as a matter of sound policy.  Assuming we have such an expansive
power under the Constitution, it would not wisely be exercised.
Petitioner's proposed rule has only insignificant advantages.  If a suspect
does not wish to communicate with the police except through an attorney, he
can simply tell them that when they give him the Miranda warnings.  There
is not the remotest chance that he will feel "badgered" by their asking to
talk to him without counsel present, since the subject will not be the
charge on which he has already requested counsel's assistance (for in that
event Jackson would preclude initiation of the interview) and he will not
have rejected uncounseled interrogation on any subject before (for in that
event Edwards would preclude initiation of the interview).  The proposed
rule would, however, seriously impede effective law enforcement.  The Sixth
Amendment right to counsel attaches at the first formal proceeding against
an accused, and in most States, at least with respect to serious offenses,
free counsel is made available at that time and or dinarily requested.
Thus, if we were to adopt petitioner's rule, most persons in pretrial
custody for serious offenses would be unapproachable by police officers
suspecting them of involvement in other crimes, even though they have never
expressed any unwillingness to be questioned.  Since the ready ability to
obtain uncoerced confessions is not an evil but an unmitigated good,
society would be the loser.  Admissions of guilt resulting from valid
Miranda waivers "are more than merely `desirable'; they are essential to
society's com pelling interest in finding, convicting, and punishing those
who violate the law."  Moran, 475 U. S., at 426 (citation omitted). {2}
    Petitioner urges upon us the desirability of providing a "clear and
unequivocal" guideline for the police: no policeinitiated questioning of
any person in custody who has requested counsel to assist him in defense or
in interrogation.  But the police do not need our assistance to establish
such a guideline; they are free, if they wish, to adopt it on their own.
Of course it is our task to establish guidelines for judicial review.  We
like them to be "clear and unequivocal," see, e. g., Roberson, 486 U. S.,
at 681-682, but only when they guide sensibly, and in a direction we are
authorized to go.  Petitioner's proposal would in our view do much more
harm than good, and is not contained within, or even in furtherance of, the
Sixth Amendment's right to counsel or the Fifth Amendment's right against
compelled self-incrimination. {3}

*  *  *
    "This Court is forever adding new stories to the temples of
constitutional law, and the temples have a way of collapsing when one story
too many is added."  Douglas v. Jeannette, 319 U. S. 157, 181 (1943)
(opinion of Jackson, J.).  We decline to add yet another story to Miranda.
The judgment of the Wisconsin Supreme Court is

Affirmed.









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1
    A footnote in Jackson, 475 U. S., at 633-634, n. 7, quoted with
approval statements by the Michigan Supreme Court to the effect that the
average person does not " `understand and appreciate the subtle
distinctions between the Fifth and Sixth Amendment rights to counsel,' "
that it " `makes little sense to afford relief from further interrogation
to a defendant who asks a police officer for an attorney, but permit
further interrogation to a defendant who makes an identical request to a
judge,' " and that " `[t]he simple fact that defendant has requested an
attorney in dicates that he does not believe that he is sufficiently
capable of dealing with his adversaries singlehandedly.' "  Michigan v.
Bladel, 421 Mich. 39, 63-64, 365 N. W. 2d 56, 67 (1984).  Those
observations were perhaps true in the context of deciding whether a request
for the assistance of counsel in defending against a particular charge
implied a desire to have that counsel serve as an "intermediary" for all
further interrogation on that charge.  They are assuredly not true in the
quite different context of deciding whether such a request implies a desire
never to undergo cus todial interrogation, about anything, without counsel
present.

2
    The dissent condemns these sentiments as "revealing a preference for an
inquisitorial system of justice."  Post, at 6.  We cannot imagine what this
means.  What makes a system adversarial rather than inquisitorial is not
the presence of counsel, much less the presence of counsel where the
defendant has not requested it; but rather, the presence of a judge who
does not (as an inquisitor does) conduct the factual and legal
investigation himself, but instead decides on the basis of facts and
arguments pro and con adduced by the parties.  In the inquisitorial
criminal process of the civil law, the defendant ordinarily has counsel;
and in the adversarial criminal process of the common law, he sometimes
does not.  Our system of justice is, and has always been, an inquisitorial
one at the investigatory stage (even the grand jury is an inquisitorial
body), and no other disposition is conceivable.  Even if detectives were to
bring impartial magistrates around with them to all interrogations, there
would be no decision for the impartial magistrate to umpire.  If all the
dissent means by a "preference for an inquisitorial system" is a preference
not to require the presence of counsel during an investigatory interview
where the interviewee has not requested it -- that is a strange way to put
it, but we are guilty.

3
    The dissent predicts that the result in this case will routinely be
circumvented when, "[i]n future preliminary hearings, competent counsel . .
. make sure that they, or their clients, make a statement on the record"
invoking the Miranda right to counsel.  Post, at 2.  We have in fact never
held that a person can invoke his Miranda rights anticipatorily, in a
context other than "custodial interrogation" -- which a preliminary hearing
will not always, or even usually, involve, cf. Pennsylvania v. Muniz, 496
U. S. ---, --- (1990) (slip op. 17-18) (plurality opinion); Rhode Island v.
Innis, 446 U. S. 291, 298-303 (1980).  If the Miranda right to counsel can
be invoked at a preliminary hearing, it could be argued, there is no
logical reason why it could not be invoked by a letter prior to arrest, or
indeed even prior to identification as a suspect.  Most rights must be
asserted when the government seeks to take the action they protect against.
The fact that we have allowed the Miranda right to counsel, once asserted,
to be effective with respect to future custodial interrogation does not
necessarily mean that we will allow it to be asserted initially outside the
context of custodial interrogation, with similar future effect.  Assuming,
however, that an assertion at arraignment would be effective, and would be
routinely made, the mere fact that adherence to the principle of our
decisions will not have substantial consequences is no reason to abandon
that principle.  It would remain intolerable that a person in custody who
had expressed no objection to being questioned would be unapproachable.