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A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a)@@Final Other  ##  ( ( ` `  #\  PCsP# dd_P  <  i '  SUPREME COURT OF THE UNITED STATES  uB< * ` ` ( ( *(  _Pdd #[ P['CdP# I A 1 a (1)(a) i) a) I A 1 a (1)(a) i) a)-#[ P['CdP# ( ( , , 4 39 C No. 92!1949 4 !   J )D #o P['Cn&P# ddh  %k uB  ddh < #[ P['CdP# 192!1949"CONCUR  uBn -DAVIS v. UNITED STATES%l uB  ddh < #[ P['CdP# 192!1949"CONCUR  uBn -DAVIS v. UNITED STATES`Q؃ C ROBERT L. DAVIS, PETITIONER v. 2UNITED STATES  o  hhx   on writ of certiorari to the united states court /7of military appeals 1 hxf #[ P['CdP# d [June 24, 1994] -,   #o P['Cn&P#  J $Footnotes#[ P['CdP# ff X01Í Í01Í Í , , #o P['Cn&P#X` hp x (#%'0*,.8135@8: ԍ FTN    XFrXFr ddf < Social science confirms what common sense would suggest, that individuals who feel intimidated or powerless are more likely to speak in equivocal or nonstandard terms when no ambiguity or equivocation is meant. See W. O'Barr, Linguistic Evidence: Lan uB guage, Power and Strategy in the Courtroom 61!71 (1982). Suspects in police interrogation are strong candidates for these effects. Even while resort by the police to the third degree has abated  uB? since Miranda, the basic forms of psychological pressure applied by  uB police appear to have changed less. Compare, e.g., Miranda, supra, at 449 (   ! `[T]he `principal psychological factor contributing to a suc uBd cessful interrogation is privacy' .! ) (quoting F. Inbau & J. Reid,d"## Criminal Interrogations and Confessions 1 (1962)), with F. Inbau, J. Reid, & J. Buckley, Criminal Interrogation and Confessions 24 (3d ed. 1986) ( The principal psychological factor contributing to a successful interrogation is privacy ! ).  Indeed, the awareness of just thesel"   realities has, in the past, dissuaded the Court from placing any burden of clarity upon individuals in custody, but has led it instead to require that requests for counsel be give[n] a broad, rather than a narrow, inter J` pretation, see Michigan v. Jackson, 475 U.S. 625, 633  J8 (1986); Barrett, 479 U.S., at 529, and that courts in J dulge every reasonable presumption, Johnson v. Zerbst,  J 304 U.S. 458, 464 (1938) (internal quotation marks omitted), that a suspect has not waived his right to  J counsel under Miranda, see, e.g., Oregon v. Bradshaw, 462 U.S. 1039, 1051 (1983) (Powell, J., concurring)  JH ( We are unanimous in agreeing ... that the [Miranda] right to counsel is a prime example of those rights requiring the special protection of the knowing and intelligent waiver standard) (internal quotation marks  J and brackets omitted); cf. Minnick, 498 U.S., at 160  J (Scalia, J., dissenting) ( [W]e have adhered to the  JX principle that nothing less than the Zerbst standard is  J0 appropriate for Miranda waivers).  Nor may the standard governing waivers as expressed in these statements be deflected away by drawing a  J distinction between initial waivers of Miranda rights and subsequent decisions to reinvoke them, on the theory that so long as the burden to demonstrate waiver rests on the government, it is only fair to make the suspect shoulder a burden of showing a clear subse J quent assertion. Miranda itself discredited the legitimacy of any such distinction. The opinion described the object of the warning as being to assure a continuous  Jx opportunity to exercise [the right of silence], id., at  JP 444; see also Moran v. Burbine, 475 U.S., at 458  J( Ԛ(Stevens, J., dissenting); accord, id., at 423, n.1. (l"   [C]ontinuous opportunity suggests an unvarying one, governed by a common standard of effectiveness. The suggestion is confirmed by the very first statement that follows, that there can be no questioning if the suspect indicates in any manner and at any stage of the pro J8 cess that he wishes to consult with an attorney, Mi J randa, 384 U.S. at 444!445. [A]t any stage obviously includes the stage after initial waiver and the commencement of questioning, and indicates in any man J ner is a rule plainly in tension with the indication  Jp  with a vengeance, see id., at 505 (Harlan, J., dissenting) that the Court would require for exercise of the continuous right at some point after initial waiver.  The Court defends as tolerable the certainty that some poorly expressed requests for counsel will be disregarded  J on the ground that Miranda warnings suffice to alleviate the inherent coercion of the custodial interrogation.  JX Ante, at 8. But,  a oncestated warning, delivered by those who will conduct the interrogation cannot itself suffice to assure that the . . . right to choose between silence and speech remains unfettered throughout the interrogation process, 384 U.S., at 469. Nor does the  J Court's defense reflect a sound reading of the case it  Jh relies on, Moran v. Burbine, supra:  J@  BQ @C  , , (  Beyond [the] duty to inform, Miranda requires that the police respect the [suspect's] decision to exercise the rights outlined in the warnings. `If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, or [if he] states that he wants an attorney, the  J interrogation must cease.' !  Id., at 420 (quoting  Jk Miranda, supra, at 473!474).T BQ kd   J  ( , , While Moran held that a subject's knowing and voluntary waiver of the right to counsel is not undermined by the fact that police prevented an unsummoned lawyer from making contact with him, it contains no suggestion/"    J that Miranda affords as ready a tolerance for police conduct frustrating the suspect's subjectively held (if ambiguously expressed) desire for counsel. See 475  J U.S. at 423 (contrasting Escobedo v. Illinois, 378 U.S.  J` 478, 481 (1964), where police incorrectly told the sus J8 pect that his lawyer `didn't want to see him' ! ); see also  J ԚMiranda, supra, at 468 (purpose of warnings is to show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it).  Indeed, it is easy, amidst the discussion of layers of protection, to lose sight of a real risk in the majority's approach, going close to the core of what the Court has held that the Fifth Amendment provides. The experience of the timid or verbally inept suspect (whose existence the Court acknowledges) may not always closely  J follow that of the defendant in Edwards v. Arizona, (whose purported waiver of his right to counsel, made after having invoked the right, was held ineffective, lest police be tempted to badge[r] others like him, see  J Michigan v. Harvey, 494 U.S. 344, 350 (1990)). Indeed,  J it may be more like that of the defendant in Escobedo  J v. Illinois, supra, whose sense of dilemma was heightened by his interrogators' denial of his requests to talk to a lawyer. When a suspect understands his (expressed) wishes to have been ignored (and by hypothesis, he has said something that an objective listener could reasonably, although not necessarily, take to be a request), in contravention of the rights just read to  J him by his interrogator, he may well see further objection as futile and confession (true or not) as the only  JP way to end his interrogation.JP uB ԍSee People v. Harper, 94 Ill. App. 3d 298, 300, 418 N.E. 2d 894, 896 (1981) (defendant who asked interrogator to retrieve an attorney's business card from his wallet but was told that it  )! `wouldn't be neces uB sary' w !  held not to have availed himself of right to counsel);  FTN   XFrXFr ddf < see also  uB Cooper v. Dupnik, see 963 F. 2d 1220, 1225 (CA9 1992) (en banc)"## (describing elaborate police Task Force plan to ignore systematically a suspect's requests for counsel, on the theory that such would induce hopelessness and thereby elicit an admission, which would  uB then be used to keep the suspect off the witness stand, see Oregon  uBl v. Haas, 420 U.S. 714 (1975) (statements obtained in violation of  uB# Miranda rules admissible for impeachment purposes)).  P"  Ԍ Nor is it enough to say that a  ! `statement either is ... an assertion of the right to counsel or it is not.' !   J Ante, at 7 (quoting Smith v. Illinois, 469 U.S., at 97!98 (omitting brackets and internal quotation marks).  J` In Smith, we neither denied the possibility that a refer J8 ence to counsel could be ambiguous, see id., at 98;  J accord, id., at 101 (Rehnquist, J., dissenting), nor suggested that particular statements should be considered  J in isolation. Id., at 98. J uBr ԍ FTN    XFrXFr ddf < Indeed, our Smith decision was quoting from the dissent below,  uB) which adverts in the same sentence to the possibility of  bona fide doubt the officer may still have as to whether the defendant desires counsel, in which case strictly limited questioning is prescribed.  uBN See People v. Smith, 102 Ill. 2d 365, 375 46 N.E. 2d 236, 241 (1984) (opinion of Simon, J.).  While it might be fair to say that every statement is meant either to express a desire to deal with police through counsel or not, this fact does not dictate the rule that interrogators who hear a statement consistent with either possibility may presume the latter and forge ahead; on the contrary, clarification is the intuitively sensible course.  The other justifications offered for the requisite level  J of clarity rule, ante, at 7, are that, whatever its costs, it will further society's strong interest in effective law  J0 enforcement, ante, at 8, and maintain the ease of  J application, id., at 9, that has long been a concern of  J our Miranda jurisprudence. With respect to the first point, the margin of difference between the clarification approach advocated here and the one the Court adopts is defined by the class of cases in which a suspect, if asked, would make it plain that he meant to request@ $ "   counsel (at which point questioning would cease). While these lost confessions do extract a real price from soci J ety, it is one that Miranda itself determined should be  J borne.  FTN    XFrXFr ff Cf. Brief for Americans for Effective Law En J` forcement, Inc., et al. as Amici Curiae 5 (the clarification approach preserves the interests of law enforce J ment and the public welfare); Escobedo, 378 U.S. at  J 490 ( No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, [his constitutional] rights).  As for practical application, while every approach, including the majority's, will involve some difficult  J judgment calls,u   uB` ԍ FTN    XFrXFr ddf < In the abstract, nothing may seem more clear than a clear statement rule, but in police stations and trial courts the question, how clear is clear? is not so readily answered. When a suspect says, uh, yeah, I'd like to do that after being told he has a right  uB< to a lawyer, has he clearly asserted his right? Compare Smith v.  uB Illinois, 469 U.S. 91, 97 (1984) (per curiam) (statement was  J! `nei uB ther indecisive nor ambiguous' ! )  ! (citation omitted)), with id., at 101  uBa (Rehnquist, J., dissenting) (questioning clarity); see also Oregon v.  uB Bradshaw, 462 U.S. 1039, 1041!1042 (1983) (plurality opinion) ( I  uB do want an attorney before it goes very much further); Edwards, 451 U.S., at 479 (  ! `I want an attorney before making a deal' "! ); cf.  uB= n. 3, supra. Indeed, in this case, when Davis finally said, I think I want a lawyer before I say anything else, the agents ceased ques uB tioning; but see People v. Kendricks, 121 Ill. App. 3d 442, 446, 459 N.E. 2d 1137, 1139 (1984) (agents need not stop interrogation when  uB suspect says,  d! `I think I might need a lawyer' ! ); Cf. People v.  uB Santiago, 133 App. Div. 429, 430!431, 519 N.Y.S. 2d 413, 414!415 (1987) (   ! `Will you supply [a lawyer] now so that I may ask him should I continue with this interview at this moment?' !  held not  uB ... an unequivocal invocation). See generally Smith, supra, at 101  uB (Rehnquist, J., dissenting) (noting that statements are rarely crystalclear .... [D]ifferences between certainty and hesitancy may well turn on the inflection with which words are spoken, especially where [a] statement is isolated from the statements surrounding it). "##Ԍ As a practical matter, of course, the primary arbiters of clarity will be the interrogators themselves, who tend as well to be courts' preferred source in determining the precise words a suspect used. And when an inculpatory statement has been obtained as a result of an unrecorded, incommunicado interrogation, these officers rarely lose swearing matches against criminal defendants at suppression hearings. u the rule argued for here would relieve "   the officer of any responsibility for guessing whether the suspect in fact wants a lawyer even though he  J hasn't said so, ante, at 9. To the contrary, it would assure that the judgment call will be made by the party most competent to resolve the ambiguity, who our case law has always assumed should make it: the individual suspect.  9H1 d d7II؃  $2  Although I am convinced that the Court has taken the wrong path, I am not persuaded by the petitioner's  J contention, that even ambiguous statements require an  J end to all police questioning. I recognize that the approach petitioner urges on us can claim some support from our case law, most notably in the indicates in any  Jf manner language of Miranda, and I do not deny that the rule I endorse could be abused by clarifying questions that shade subtly into illicitly badgering a suspect  J who wants counsel, but see Thompson v. Wainwright,  J 601 F. 2d 768, 771!772 (CA5 1979); cf. State v.  J ԚWalkowiak, No. 92!1558!CR (Wis. May 13, 1994) (Abrahamson, J., concurring) (suggesting means properly to focus clarification enquiry). But the petitioner's proposal is not entirely in harmony with all the major  J themes of Miranda case law, its virtues and demerits being the reverse images of those that mark the Court's rule. While it is plainly wrong, for example, to continue interrogation when the suspect wants it to stop (and so  J^ indicates), the strong bias in favor of individual choice may also be disserved by stopping questioning when a6 "   suspect wants it to continue (but where his statement  J might be understood otherwise), see Michigan v. Mosley, 423 U.S. 96, 109 (1975) (White, J., concurring in result) ( [W]e have ... rejected [the] paternalistic rule protecting a defendant from his intelligent and voluntary decisions about his own criminal case). The costs to society of losing confessions would, moreover, be especially hard to bear where the suspect, if asked for his choice, would have chosen to continue. One need not sign the  J Ԛmajority's opinion here to agree that resort to the rule  Jp petitioner argues for should be had only if experience shows that less drastic means of safeguarding suspects'  J constitutional rights are not up to the job, see generally  J United States v. Leon 468 U.S. 897, 927!928 (1984)  J (Blackmun, J., concurring) (exclusionary rule exception must be tested in the real world of state and federal law enforcement, and this Court will attend to the results). 2* * *  J  Our cases are best respected by a rule that when a suspect under custodial interrogation makes an ambiguous statement that might reasonably be understood as expressing a wish that a lawyer be summoned (and questioning cease), interrogators' questions should be confined to verifying whether the individual meant to ask for a lawyer. While there is reason to expect that trial courts will apply today's ruling sensibly (without requiring criminal suspects to speak with the discrimination of an Oxford don) and that interrogators will continue to follow what the Court rightly calls good police practice (compelled up to now by a substantial body of state and Circuit law), I believe that the J case law under Miranda does not allow them to do otherwise.