McNeil v. Wisconsin, 501 U.S. 171 (1991)

Fundamental Cases in Procedural Law by Adam J. McKee

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.


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 Milwaukee.  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 Milwaukee 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 Caledonia.  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 Miranda 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?”

The Wisconsin Supreme Court answered “no.”


The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” In Michigan v. Jackson (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.”

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. . . .  To 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. . . .”

“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.”

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 “no person . . . shall be compelled in any criminal case to be a witness against himself.”  In Miranda v. Arizona (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.”

In Edwards v. Arizona (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,”—which means, we have most recently held, that counsel must be present, Minnick v. Mississippi (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.”  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.

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 impermissible 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-offense-specific 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 “protect 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.  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.”  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 interest.

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 present is not the test for applicability of Edwards.  The rule of that case applies only when the suspect “has expressed” his wish for the particular sort of lawyerly assistance that is the subject of Miranda.  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.

“To 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.”

Our holding in Michigan v. Jackson (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.  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.”

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 police-initiated interrogation; we could simply have cited and relied upon Edwards.

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 ordinarily 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 compelling interest in finding, convicting, and punishing those who violate the law.”

Petitioner urges upon us the desirability of providing a “clear and unequivocal” guideline for the police: no police-initiated 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,” 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.

“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.”  We decline to add yet another story to Miranda.  The judgment of the Wisconsin Supreme Court is


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Last Modified:  08/21/2019


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