COMMENTS

Davis v. United States: The Ambiguous Request for Counsel

  Introduction

In June 1994, the United States Supreme Court decided Davis v. United States,⁽¹⁾ which clarified whether an ambiguous request for counsel is sufficient to invoke a suspect's right, under Miranda v. Arizona,⁽²⁾ to the presence of counsel during interrogation. The Supreme Court's opinion⁽³⁾ resolved a three-way split of opinion in the federal circuits⁽⁴⁾ by declaring that "law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney."⁽⁵⁾

Parts I and II of this Comment examine the history of the right to have counsel present during interrogation, tracing the law from Miranda v. Arizona⁽⁶⁾ and Edwards v. Arizona,⁽⁷⁾ to subsequent Supreme Court and Federal Circuit Court cases that define and explain this right.⁽⁸⁾ Part III explores the nature of an ambiguous request and seeks to define ambiguity.⁽⁹⁾ Part IV examines the pre-Davis split in the circuits regarding ambiguous requests for counsel.⁽¹⁰⁾ Part V explains the facts of Davis and examines the rules and reasoning employed in the majority and concurring opinions.⁽¹¹⁾ Part VI compares the individual justices' positions in Davis with their respective positions in previous cases involving the right to counsel, and suggests that the Davis opinion was predictable.⁽¹²⁾ Part VII examines the interpretation of the Davis holding in subsequent circuit court opinions.⁽¹³⁾ Part VII also attempts to determine whether the circuits granting more permissive rules than Davis will continue to endorse their own procedures rather than following those in Davis.⁽¹⁴⁾ Part VIII examines issues and questions that Davis did not address, such as the definition of "ambiguous request."⁽¹⁵⁾ Part VIII also proposes that the Supreme Court will need to decide another case to clarify both the proper definition of "ambiguity," and the procedure to follow once ambiguity is found, since the Davis decision did little to clarify the proper response to an ambiguous request for counsel.

  The History of the Request for Counsel

A.  Miranda and the Right to Presence of Counsel

In Miranda v. Arizona⁽¹⁶⁾ the Supreme Court established several procedures to safeguard the Fifth Amendment rights⁽¹⁷⁾ of persons during custodial interrogations.⁽¹⁸⁾ One of these is the right to have an attorney present during interrogation.⁽¹⁹⁾ Miranda stated: "[i]f [an] individual indicates in any manner, at any time prior to or during questioning . . . that he wants an attorney, the interrogation must cease until an attorney is present."⁽²⁰⁾

"The right to counsel established in Miranda [is not itself] . . . protected by the Constitution but [was established] . . . to insure that the right against compulsory self-incrimination was protected."⁽²¹⁾ Because the request for counsel communicates a suspect's belief that he "considers himself unable to deal with the pressures of custodial interrogation without legal assistance,"⁽²²⁾ the presence of counsel is important to safeguard the individual's constitutional rights.⁽²³⁾ The Supreme Court recognized the need for such protection, and was aware of an attorney's "unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation."⁽²⁴⁾

In 1978, the Supreme Court examined the unique nature of legal counsel in Fare v. Michael C.⁽²⁵⁾ In Fare, the Court reviewed and overturned the California Supreme Court's extension of the Miranda safeguards to include a minor's request for his probation officer.⁽²⁶⁾ The United States Supreme Court distinguished the role and responsibilities of a probation officer from those of an attorney,⁽²⁷⁾ emphasizing the attorney's obligation to protect his client's rights and interests,⁽²⁸⁾ and concluding that "`[w]here a conflict between the minor and the law arises, the probation officer can be neither neutral nor in the minor's corner.'"⁽²⁹⁾

Fare gave the Supreme Court the opportunity to thoroughly discuss the attorney's position in the American legal system and the attorney's unique ability to protect his or her client's constitutional rights.⁽³⁰⁾ This unique ability is the foundation for the Miranda right to counsel⁽³¹⁾ and the reason the Court refused to expand the Miranda safeguards to include requests for probation officers.⁽³²⁾ The Court, however, did indicate that under certain circumstances,⁽³³⁾ minors' requests for the presence of persons other than an attorney may indicate a desire to remain silent, which is sufficient to invoke their Fifth Amendment rights.⁽³⁴⁾

Davis also allowed the Court to reiterate the Miranda test for the admissibility of statements obtained during custodial interrogation.⁽³⁵⁾ The Miranda test requires that such statements be examined "upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights . . . to have the assistance of counsel."⁽³⁶⁾

B.  Edwards v. Arizona and the Prohibition of Further Questioning Following a Request for Counsel

Edwards v. Arizona⁽³⁷⁾ further strengthened the Miranda safeguards protecting the right to counsel:⁽³⁸⁾

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further [questioning]. . . . [The accused,] having expressed his desire to deal with the police only through counsel, is not subject to further interrogation . . . until counsel has been made available to him . . . .⁽³⁹⁾

The Edwards majority opinion⁽⁴⁰⁾ reaffirmed Miranda, establishing a "`rigid rule that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights,'"⁽⁴¹⁾ stating that "it is inconsistent with Miranda . . . to reinterrogate an accused in custody if he has clearly asserted his right to counsel."⁽⁴²⁾

This bar to further questioning was expanded in Arizona v. Roberson,⁽⁴³⁾ a case in which the majority opinion⁽⁴⁴⁾ held that "the presumption raised by a suspect's request for counsel--that he considers himself unable to deal with the pressures of custodial interrogation without legal assistance--does not disappear simply because the police have approached [him] . . . about a separate investigation."⁽⁴⁵⁾ This holding expanded the Miranda rule to bar all interrogation of a given suspect prior to his or her consultation with previously requested counsel.⁽⁴⁶⁾

These cases, however, did not raise the issue of a suspect's ambiguous invocation of his Fifth Amendment right to counsel. In Edwards, the defendant had clearly requested an attorney prior to questioning;⁽⁴⁷⁾ in Roberson the defendant had clearly indicated that he "wanted a lawyer before answering any questions."⁽⁴⁸⁾

C.  Smith v. Illinois--The Supreme Court's First Refusal to Address Ambiguity

In Smith v. Illinois,⁽⁴⁹⁾ the Supreme Court granted certiorari in a case in which an ambiguous request for counsel was at issue. The ambiguity arose out of an uncertain remark⁽⁵⁰⁾ made by an eighteen-year-old suspect in response to being read his Miranda rights prior to interrogation.⁽⁵¹⁾ Rather than terminating the questioning, the police "finish[ed] reading [the suspect] his Miranda rights and then pressed him again to answer their questions."⁽⁵²⁾ The defendant eventually implicated himself in a robbery and was convicted after the State used transcripts of the interrogation at his trial.⁽⁵³⁾ Both the state appellate court and the Illinois Supreme Court affirmed the conviction and the admission of the defendant's confession, finding that "`when [the request] is considered with other statements . . .' [the defendant] was undecided . . . and `never made an effective request for counsel.'"⁽⁵⁴⁾

Although the Supreme Court acknowledged that the circuit courts followed conflicting standards in resolving ambiguous requests for counsel,⁽⁵⁵⁾ the Court declined to reach the ambiguous request for counsel issue in the Smith opinion.⁽⁵⁶⁾ Instead, the majority held that the defendant's statement "was neither indecisive nor ambiguous"⁽⁵⁷⁾ and represented an affirmative request for counsel.⁽⁵⁸⁾ Only the defendant's subsequent statements were found to be ambiguous, and the Supreme Court held that "an accused's subsequent statements are relevant only to the question whether the accused waived the right [to counsel],"⁽⁵⁹⁾ and not to whether he invoked it in the first place.⁽⁶⁰⁾

The dissent⁽⁶¹⁾ took a different position, finding that the interrogating officer had actually sought clarification of the defendant's statement,⁽⁶²⁾ and proceeded with questioning only after the defendant showed a willingness to speak.⁽⁶³⁾ Justice Rehnquist saw "no reason why the entire flavor of the colloquy . . . [could not] be considered by the trier of fact,"⁽⁶⁴⁾ and insisted that "[c]ommon sense suggests that the police should both complete reading [the defendant] his rights and then ask him to state clearly what he elects to do, even if he indicated a tentative desire while he was being informed of his rights."⁽⁶⁵⁾

D.  Connecticut v. Barrett--The Supreme Court's Second Examination of Ambiguity

In Connecticut v. Barrett,⁽⁶⁶⁾ the Supreme Court again examined an allegedly ambiguous request for counsel.⁽⁶⁷⁾ In Barrett, as in Smith,⁽⁶⁸⁾ the Court declined to address the ambiguity issue and interpreted the defendant's request as conditional rather than as ambiguous.⁽⁶⁹⁾

The issue arose when the defendant made a statement to police after being read his Miranda rights but prior to the commencement of his interrogation.⁽⁷⁰⁾ The defendant indicated "that he understood his rights, and . . . would not give a written statement unless his attorney was present but had `no problem' talking about the incident."⁽⁷¹⁾ The defendant then made an oral confession.⁽⁷²⁾ The police repeated the interrogation shortly afterward,⁽⁷³⁾ and the defendant repeated his confession after restating his unwillingness to sign or write anything until his attorney was present.⁽⁷⁴⁾

The Barrett Court noted that the Connecticut Supreme Court had held that the defendant had invoked his right to counsel.⁽⁷⁵⁾ The United States Supreme Court reversed that decision, stating that "Barrett made clear to police his willingness to talk"⁽⁷⁶⁾ and that he had made only a limited request for counsel.⁽⁷⁷⁾ The majority⁽⁷⁸⁾ noted, in dicta, that "[i]nterpretation is only required where the defendant's words, understood as ordinary people would understand them, are ambiguous."⁽⁷⁹⁾ The Court went on to state that the defendant had "made clear his intentions, and they were honored by police;"⁽⁸⁰⁾ therefore, the court held, a ruling on ambiguity was unnecessary.⁽⁸¹⁾

Justice Brennan concurred in the judgment,⁽⁸²⁾ because he believed that the defendant had made an unequivocal waiver of his right to counsel.⁽⁸³⁾ The concurrence directly addressed the issue of ambiguity, stating that "a partial invocation of the right to counsel, without more, invariably will be ambiguous"⁽⁸⁴⁾ and that "police may not infer from a partial invocation . . . alone that the defendant has waived any of his or her rights not specifically invoked."⁽⁸⁵⁾ Justice Brennan also indicated that he would allow the circumstances surrounding the statement to "clarify an otherwise ambiguous situation."⁽⁸⁶⁾ However, he qualified this remark⁽⁸⁷⁾ by restating the Smith holding that "`an accused's post request responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.'"⁽⁸⁸⁾

According to Justice Stevens, however, where "the initial request for counsel is clear, . . . the police may not create ambiguity."⁽⁸⁹⁾ Justice Stevens's dissent⁽⁹⁰⁾ indicated that he would not have heard the case⁽⁹¹⁾ because the defendant's request constituted a sufficient request for counsel.⁽⁹²⁾

  Defining Ambiguity

A.  The Supreme Court's Standard of Ambiguity Prior to Davis

Prior to Davis, the Supreme Court had interpreted several requests for counsel,⁽⁹³⁾ which helped lower courts to determine which requests might qualify as ambiguous. "`I want an attorney before making a deal'" was found to be an immediate request for counsel,<sup>(94)</sup> as was "`I do want an attorney before it goes very much further.'"⁽⁹⁵⁾ "Uh, yeah. I'd like to do that,"⁽⁹⁶⁾ followed by "Yeah and no, I don't know what's what, really"⁽⁹⁷⁾ was found to be unambiguous, but insufficient to invoke the suspect's right to counsel.⁽⁹⁸⁾

The most definite statements concerning ambiguity can be found in Connecticut v. Barrett,⁽⁹⁹⁾ a case in which the Court stated that "[i]nterpretation is only required where the defendant's words, understood as ordinary people would understand them, are ambiguous,"⁽¹⁰⁰⁾ and in McNeil v. Wisconsin,⁽¹⁰¹⁾ a case in which the Court determined that an invocation of the right to counsel "requires, at a minimum, some statement that can reasonably be construed . . . [as] a desire for the assistance of an attorney in dealing with custodial interrogation."⁽¹⁰²⁾

B.  Circuit Courts' Interpretations of Ambiguity Prior to Smith v. Illinois

Prior to Smith v. Illinois,⁽¹⁰³⁾ the Fifth Circuit and several state courts addressed the issue of ambiguous requests for counsel.⁽¹⁰⁴⁾ Notably, California state courts avoided the ambiguity issue entirely by holding that any reference to an attorney constituted a request for counsel.⁽¹⁰⁵⁾ This became one minority view;⁽¹⁰⁶⁾ most Federal Circuit Courts of Appeals (circuit courts or circuits) eventually recognized that ambiguous requests for counsel were less than a full invocation of the suspect's Fifth Amendment right to an attorney.⁽¹⁰⁷⁾

Those circuits that allowed defendants to invoke their Fifth Amendment rights through ambiguous requests needed to develop a test to define such requests, as well as a procedure with which to deal with such requests. The Fifth Circuit created such a test in Nash v. Estelle.⁽¹⁰⁸⁾ In Nash, the circuit court indicated that a suspect makes an ambiguous request for counsel when he "expresses both a desire for counsel and a desire to continue the interview without counsel."⁽¹⁰⁹⁾ The Fifth Circuit examined the issue again in Thompson v. Wainwright,⁽¹¹⁰⁾ a case in which the court emphasized the importance of a definition of ambiguity which did not "attribut[e] a talismanic quality to the word `attorney.'"⁽¹¹¹⁾

C.  Defining "Ambiguity" in the Circuits After Smith v. Illinois

When the Supreme Court refused to establish a definition of ambiguity in Smith v. Illinois⁽¹¹²⁾ it left lower courts to answer the question for themselves. The circuit courts continued to define ambiguity⁽¹¹³⁾ in the dicta of decisions establishing rules for dealing with ambiguous requests for counsel.⁽¹¹⁴⁾

The Eleventh Circuit, in Towne v. Dugger,⁽¹¹⁵⁾ addressed the issue of whether a question asked by the suspect could qualify as an ambiguous request for counsel. "[T]he interrogating officer was asked by the defendant . . . whether the defendant should exercise his right to get an attorney."⁽¹¹⁶⁾ The court stated that such questions could qualify as ambiguous requests and thus require clarification when they "reveal to the investigating officer that the defendant is contemplating exercising his right to have an attorney present."⁽¹¹⁷⁾

As previously discussed, one circuit held that the ambiguous request is "`an ambiguous statement, either in the form of an assertion or a question, communicating a possible desire to exercise [the] right to have an attorney present during questioning.'"⁽¹¹⁸⁾ Ambiguity arises "when an accused gives . . . vague, indefinite, or indecisive signals."⁽¹¹⁹⁾ Another court was more expansive, finding ambiguity "whenever a suspect makes a statement or asks a question that appears to contemplate invocation of his right to counsel."⁽¹²⁰⁾

Once the ambiguous request was identified, the next issue was determining how interrogating officers should interpret or respond to the statement.⁽¹²¹⁾ This issue divided the circuits,⁽¹²²⁾ and appears to have been the impetus for the Davis decision.

  The Circuits' Stances on Ambiguous Statements Prior to Davis v. United States

The Supreme Court's refusal to address the ambiguity issue exacerbated the confusion in the lower courts by allowing the continuation of the three-way split among lower courts.⁽¹²³⁾ To understand the change Davis made, it is helpful to examine the circuits' positions prior to 1994.

A.  The Clarification Requirement: Questioning Limited to Determining the Nature of a Suspect's Request

Prior to Davis, a majority of circuits⁽¹²⁴⁾ required that "when a suspect makes an equivocal statement that arguably can be construed as a request for counsel, interrogation must cease except for narrow questions designed to clarify the . . . suspect's desire for counsel."⁽¹²⁵⁾ The courts justified this rule by reference to the Supreme Court's decision in Michigan v. Jackson,⁽¹²⁶⁾ a case in which the Court stated that courts must "give a broad . . . interpretation to a defendant's request for counsel."⁽¹²⁷⁾ Courts also favored this test because it "avoid[ed] attributing a talismanic quality to the word `attorney' . . . while at the same time safeguarding [the suspect's] right to the assistance of counsel."⁽¹²⁸⁾

1.  Nash v. Estelle: The Origin of the Clarification Requirement

Several circuits⁽¹²⁹⁾ credited the Nash v. Estelle,⁽¹³⁰⁾ decision with creating the clarification test. The Nash court stated that the word "lawyer" is not endowed with "talismanic qualities," such that the mere mention of the word requires all questioning to cease,⁽¹³¹⁾ and held that "[w]here the suspect's desires [for an attorney] are expressed in such an equivocal fashion, it is permissible for the questioning official to make further inquiry to clarify the suspect's wishes."⁽¹³²⁾

The Nash court required clarification when "a desire for immediate talk clearly appears from the suspect's words and conduct, but he also states he wants a lawyer."⁽¹³³⁾ The court found that the district attorney's subsequent statements⁽¹³⁴⁾ and questions⁽¹³⁵⁾ properly clarified the suspect's statement.⁽¹³⁶⁾ Yet Nash appears to indicate that clarification is a recommended step rather than a mandatory one.⁽¹³⁷⁾

2.  Development of the Clarification Requirement

The Fifth Circuit reexamined the clarification requirement in 1979 in Thompson v. Wainwright,⁽¹³⁸⁾ a case in which the court held that a murder suspect's confession was wrongfully admitted against him at trial because it was obtained through coercion after the suspect had requested counsel.⁽¹³⁹⁾ In Thompson, the court restated the Nash holding: "[W]henever even an equivocal request for an attorney is made by a suspect during custodial interrogation, the scope of that interrogation is immediately narrowed to one subject and one subject only. Further questioning thereafter must be limited to clarifying that request until it is clarified."⁽¹⁴⁰⁾

The court went on to elaborate upon the nature of permissible clarification, stating that the "limited inquiry . . . may not take the form of an argument . . . about whether having counsel would be in the suspect's best interests or not."⁽¹⁴¹⁾ Furthermore, officers may not try to tell suspects what "counsel's advice . . . would be if he were present."⁽¹⁴²⁾

Other circuits followed the Fifth Circuit's reasoning in Nash. The First Circuit adopted the Nash clarification requirement in United States v. Porter.⁽¹⁴³⁾ Porter held that "a mere rereading of the Miranda rights does not sufficiently clarify a suspect's equivocal request for counsel."⁽¹⁴⁴⁾ The Ninth Circuit adopted the clarification requirement in United States v. Fouche,⁽¹⁴⁵⁾ a case in which the court elaborated upon the proper form and content of clarification, stating that the "critical factor" in evaluating an official attempt at clarification is "`whether a review of the whole event discloses that the interviewing agent has impinged on the exercise of the suspect's continuing option to cut off the interview.'"⁽¹⁴⁶⁾

Subsequent decisions further narrowed the scope of permissible clarification,⁽¹⁴⁷⁾ indicating that clarification consisted of "narrow questions" specifically designed to interpret a suspect's desire for counsel.⁽¹⁴⁸⁾

B.  The Threshold of Clarity

One minority view developed prior to Smith v. Illinois,⁽¹⁴⁹⁾ and followed by the Illinois appellate courts,⁽¹⁵⁰⁾ required a suspect's mention of counsel to rise above a certain standard before it would be considered an effective invocation of the right to an attorney.⁽¹⁵¹⁾ Ambiguous references to counsel which fell short of this standard were not invocations of the right to counsel.⁽¹⁵²⁾

Under this standard, the determination of whether a suspect successfully invoked his right to counsel depended upon "the import of the words used."⁽¹⁵³⁾ The interrogator's subjective interpretation of the suspect's statement is a factor in determining whether the defendant's statement constituted an invocation of his right to counsel.⁽¹⁵⁴⁾ Decisions indicate that interrogating "officers must be allowed to exercise their judgment in determining whether a suspect has requested counsel,"⁽¹⁵⁵⁾ but such impressions "should not be given undue weight or emphasis."⁽¹⁵⁶⁾ Under this test, statements like "`[m]aybe I ought to talk to an attorney'"<sup>(157)</sup> and "`I think I might need a lawyer'"⁽¹⁵⁸⁾ were held insufficient to invoke the defendants' right to counsel.⁽¹⁵⁹⁾

C.  The "Any Mention" Rule

The third rule concerning requests for counsel held that "all questioning must cease upon any request for, or reference to, counsel, however equivocal or ambiguous."⁽¹⁶⁰⁾ This was a minority rule, upheld primarily by the state appeals courts in California and Texas.⁽¹⁶¹⁾

This "any mention" standard appears to give the word "attorney" a "talismanic quality,"⁽¹⁶²⁾ a concept shunned by other courts.⁽¹⁶³⁾ The problem with such a standard, and perhaps the reason more courts refused to follow it, is that a rule requiring all questioning to cease upon a suspect's mention of the word "attorney" may substantially interfere with officers' ability to pursue necessary investigations and interrogations of criminal suspects.⁽¹⁶⁴⁾ Under this standard, law enforcement officers could be barred from interrogating even those suspects who wanted to talk to them, even though the suspects had previously mentioned their right to an attorney.⁽¹⁶⁵⁾

  Davis v. United States

A.  The Facts

On October 2, 1988, petitioner Robert Davis, a member of the Navy, was playing pool with another sailor, Keith Shackleford, at a club at the Charleston Naval Base.⁽¹⁶⁶⁾ Shackleford lost a thirty-dollar bet to Davis but refused to pay.⁽¹⁶⁷⁾ Shackleford's body was found on a loading dock behind the commissary early the following morning; he had been beaten to death with a pool cue.⁽¹⁶⁸⁾

While investigating the murder, authorities from the Naval Investigative Service (NIS) learned that the suspect, Davis, was at the club, and that Davis was absent from his station without authorization the following morning.⁽¹⁶⁹⁾ Only privately owned pool cues could be removed from the club, and the investigators found a bloodstain on one of Davis's cues.⁽¹⁷⁰⁾ The investigators were told⁽¹⁷¹⁾ that Davis had implicated himself in the murder.⁽¹⁷²⁾

Davis was interviewed at the NIS office on November 4, 1988.⁽¹⁷³⁾ NIS agents advised him prior to questioning him that he was a suspect in a murder, and that he had the right not to talk to them and to have an attorney present during questioning.⁽¹⁷⁴⁾ Davis waived these rights, both orally and in writing, and the interview proceeded for approximately ninety minutes, until Davis said "`[m]aybe I should talk to a lawyer.'"<sup>(175)</sup> At that time, the NIS agents told Davis that they would stop questioning him if he wanted an attorney, and asked him to clarify whether he wanted a lawyer.<sup>(176)</sup> Davis responded that he did not want an attorney.<sup>(177)</sup> The agents reminded him of his rights and continued the interrogation for another hour, until Davis said, "`I think I want a lawyer before I say anything else,'"⁽¹⁷⁸⁾ at which time the interrogation ceased.⁽¹⁷⁹⁾

B.  Procedural History

During his court-martial, Davis attempted to suppress statements made during the November 4 interrogation.⁽¹⁸⁰⁾ His motion was denied because the military judge found that Davis's "`mention of a lawyer . . . [was] not in the form of a request for counsel.'"⁽¹⁸¹⁾ Davis was convicted of unpremeditated murder and sentenced to life in prison, a dishonorable discharge, forfeiture of his military pay, and a demotion in rank to the lowest pay grade.⁽¹⁸²⁾

Davis appealed, and both the Navy-Marine Corps Court of Military Review⁽¹⁸³⁾ and the United States Court of Military Appeals⁽¹⁸⁴⁾ affirmed the decision.⁽¹⁸⁵⁾ The Supreme Court of the United States granted certiorari to establish a uniform rule for interpreting ambiguous requests for counsel.⁽¹⁸⁶⁾

C.  The United States Supreme Court Decision

The United States Supreme Court affirmed Davis's conviction, as well as the decision to admit Davis's statements to the NIS agents during his interrogation.⁽¹⁸⁷⁾ All nine United States Supreme Court Justices affirmed Davis's conviction and the admission of the statements Davis had made during interrogation,⁽¹⁸⁸⁾ but differences arose among the justices⁽¹⁸⁹⁾ as to the proper procedure interrogating officers should follow when confronted with an ambiguous request for counsel.⁽¹⁹⁰⁾ The majority⁽¹⁹¹⁾ held that "after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney."⁽¹⁹²⁾ In contrast, Justice Souter's concurrence in the judgment⁽¹⁹³⁾ maintained that interrogators should be required to ask clarifying questions before continuing the interrogation.⁽¹⁹⁴⁾

1.  The Majority Opinion

The majority opinion began with an examination of the Miranda right to counsel and briefly examined its evolution⁽¹⁹⁵⁾ through Edwards v. Arizona.⁽¹⁹⁶⁾ Justice O'Connor stated that the right to counsel established in Miranda is a judicially created safeguard for Fifth Amendment rights, rather than a right in itself.⁽¹⁹⁷⁾ Justice O'Connor also indicated that the Edwards right to suspend questioning represents only a "`second layer of prophylaxis for the Miranda right to counsel.'"<sup>(198)</sup> These judicially created rights are "`justified only by reference to [their] prophylactic purpose.'"⁽¹⁹⁹⁾

Justice O'Connor discussed ambiguity, maintaining that whether an accused actually invoked his right to counsel is an "objective inquiry."⁽²⁰⁰⁾ The Court then clarified a previously unanswered question, stating that "precedents do not require the cessation of questioning"⁽²⁰¹⁾ following an ambiguous request for counsel.⁽²⁰²⁾ To invoke Miranda and Edwards, according to the Court, "the suspect must unambiguously request counsel."⁽²⁰³⁾

The Court did leave some room for interpretation of this standard.⁽²⁰⁴⁾ Interpretive leeway is limited, however, for the Court stated that a suspect's request must rise to such a level that "a reasonable police officer in the circumstances would understand the statement to be a request for an attorney."⁽²⁰⁵⁾

The Court next addressed Davis's argument that it should extend the Edwards rule to insist that questioning cease upon any reference to an attorney.⁽²⁰⁶⁾ The Court declined to adopt this view, indicating that such a rule would significantly inhibit police interrogations, "needlessly prevent[ing] the police from questioning a suspect . . . even if the suspect did not wish to have a lawyer present."⁽²⁰⁷⁾

The Court acknowledged that requiring an unambiguous request might harm some suspects who desire representation but do not clearly assert this desire.⁽²⁰⁸⁾ But it emphasized that "the primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves,"⁽²⁰⁹⁾ and that a suspect who understands his Miranda rights is sufficiently protected against interrogation.⁽²¹⁰⁾ The additional protection of Edwards "must be affirmatively invoked."⁽²¹¹⁾

The Court then examined the interrogators' interest in obtaining information from suspects,⁽²¹²⁾ emphasizing that police officers must be able to decide when they may question a suspect,⁽²¹³⁾ and that "[t]he Edwards rule . . . provides a bright line that can be applied by officers . . . without unduly hampering the gathering of information."⁽²¹⁴⁾ The Court held that "after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney."⁽²¹⁵⁾

The Court noted in dicta that clarification, although not required, was suggested because it helps to further protect the suspect's rights.⁽²¹⁶⁾ However, the Court also reaffirmed its decision not to mandate such clarification.⁽²¹⁷⁾ The Court summarized its decision by reviewing the two layers of prophylaxis established in Miranda and Edwards to protect the suspect's rights, and maintained that it was "unwilling to create a third layer . . . to prevent police questioning when the suspect might want a lawyer."⁽²¹⁸⁾

The Supreme Court applied this new law to Davis's case; it refused to overrule the lower courts' decisions which had "found that [Davis's] remark to NIS agents . . . was not a request for counsel."⁽²¹⁹⁾ The Supreme Court affirmed the lower courts' rulings.⁽²²⁰⁾

2.  Justice Scalia's Concurrence

Although Justice Scalia joined in Justice O'Connor's majority opinion, he wrote a separate concurrence, however, to indicate his willingness to affirm the lower courts' decisions not only on the basis of ambiguity, but also under § 3501 of Title 18 of the United States Code.⁽²²¹⁾ Section 3501 "`govern[s] the admissibility of confessions in federal prosecutions.'"<sup>(222)</sup> This statute says that "`a confession . . . shall be admissible in evidence if it is voluntarily given,' and that the issue of voluntariness shall be determined on the basis of `all the circumstances.'"<sup>(223)</sup> According to the statute, proper determination involves asking whether a suspect was advised of his rights to remain silent and to have the assistance of counsel, and whether the suspect spoke without having consulted an attorney,<sup>(224)</sup> although these factors "`need not be conclusive.'"⁽²²⁵⁾

Justice Scalia explained that although the United States did not raise § 3501 in this case, it should have done so.⁽²²⁶⁾ The majority had declined to consider § 3501 because the Government had not raised it.⁽²²⁷⁾ Justice Scalia noted in his concurrence that the Government had "studiously avoided" using § 3501 to admit suspects' statements ever since its enactment.⁽²²⁸⁾ He agreed with the majority that "it is proper . . . to render judgment [in this case] without taking account of § 3501."⁽²²⁹⁾ He also stated, however, that refusal to consider points not raised by the parties is a discretionary rather than a mandated practice.⁽²³⁰⁾ Justice Scalia urged the Court to diverge from this practice and raise the statute, regardless of whether the parties raise it or not, the next time a case that comes within the terms of this statute is . . . presented."⁽²³¹⁾ He explained that § 3501 is addressed to the courts, so the Supreme Court should respond by enforcing it.⁽²³²⁾ According to Justice Scalia, voluntary confessions should be admissible,⁽²³³⁾ and the Supreme Court should not deny § 3501's ability to make them admissible.⁽²³⁴⁾

Justice Scalia believed that the Supreme Court's historic refusal to enforce § 3501 "ha[d] caused the federal judiciary to confront a host of `Miranda' issues that might be entirely irrelevant under federal law."⁽²³⁵⁾ He also believed that this refusal to invoke § 3501 may have resulted in the improper "acquittal and . . . nonprosecution of many dangerous felons."⁽²³⁶⁾ He concluded by stating that the Court's refusal to consider § 3501 was inconsistent with its judicial "obligation to decide [cases] according to the law."⁽²³⁷⁾

3.  Justice Souter's Concurrence

Justice Souter's concurrence in the judgment⁽²³⁸⁾ began by emphasizing that when Davis made an equivocal mention of counsel, the NIS investigators had ceased questioning him about the murder and sought to clarify his request.⁽²³⁹⁾ He agreed with the majority that such clarifying questions were constitutional,⁽²⁴⁰⁾ but concurred with the majority opinion because the NIS agents had sought clarification of Davis's remarks.⁽²⁴¹⁾

Justice Souter did not agree with the majority opinion "that if the investigators here had been so inclined, they were at liberty to disregard Davis' reference to a lawyer entirely."⁽²⁴²⁾ He also would have avoided drawing such a sharp line between clear requests for counsel and ambiguous statements that were insufficient to terminate questioning.⁽²⁴³⁾ He emphasized the importance of "fairness and practicality," and argued that when interrogators "`reasonably do not know whether or not the suspect wants a lawyer,' they should stop their interrogation and ask him to make his choice clear."⁽²⁴⁴⁾

Justice Souter briefly examined past treatments of ambiguity and requests for counsel.⁽²⁴⁵⁾ His concurrence in the judgment then moved on to examine the Davis rule⁽²⁴⁶⁾ and the clarification rule⁽²⁴⁷⁾ in light of two important ideas that the Court has historically considered important.⁽²⁴⁸⁾ According to Justice Souter, the clarification rule furthers both the idea that "Miranda safeguards exist `to assure that the individual's right to choose between speech and silence remains unfettered,'"<sup>(249)</sup> and the idea that "the justification for Miranda rules . . . `must be consistent with . . . practical realities.'"⁽²⁵⁰⁾

Justice Souter believed that a clarification requirement would advance these goals better than the majority's rule.⁽²⁵¹⁾ Under the majority's rule, suspects who were "`thrust into an unfamiliar atmosphere,'"<sup>(252)</sup> or who lacked a "confident command of the English language," would be subjected to a heightened level of linguistic scrutiny.<sup>(253)</sup> When placed under the stress of interrogation, Justice Souter noted, people may be ignorant or intimidated to speak assertively enough to invoke their right to counsel under the Davis rule.<sup>(254)</sup> Justice Souter recalled that these same concerns previously prevented 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, interpretation,'"⁽²⁵⁵⁾ and made it require that courts "`indulge every reasonable presumption.'"⁽²⁵⁶⁾

Justice Souter then stated that he found few plausible justifications for the Davis rule.⁽²⁵⁷⁾ He denied that since the Government must demonstrate that a suspect waived his Miranda rights, it is fair to make the suspect carry the burden of proving that he clearly asserted those rights in the first place.⁽²⁵⁸⁾ Justice Souter also disagreed with the majority's

assertion that the reading of a suspect's Miranda rights was sufficient to protect him against police coercion when he does not clearly invoke his right to counsel.⁽²⁵⁹⁾ He believed not only that Miranda rights are insufficient to ensure protection of the suspect's rights,⁽²⁶⁰⁾ but also that the majority's argument reflected an improper reading of the case it relied upon in making the argument.⁽²⁶¹⁾ According to Justice Souter, suspects' experiences differ; some may try to invoke their rights to counsel, whereas others may elect not to pursue their rights to an attorney if they feel their requests would not be honored.⁽²⁶²⁾ In some cases, the Miranda warnings may suffice to protect a suspect's rights, but this is not necessarily always true.⁽²⁶³⁾

Justice Souter then took issue with the majority's assertion that "a `"statement either is . . . an assertion of the right to counsel or it is not."'"⁽²⁶⁴⁾ As Justice Souter explained, the Court in Smith v. Illinois⁽²⁶⁵⁾ was not addressing the issue of ambiguous requests for counsel.⁽²⁶⁶⁾ He also indicated that the majority in Smith had quoted the above phrase from the lower court's dissent.⁽²⁶⁷⁾ The same sentence of this dissent said that in some cases, an officer may have doubts whether a suspect desired representation, and opined that the proper course of action in such cases was clarification of the suspect's wishes.⁽²⁶⁸⁾ Although he admitted that it might be accurate to say that every statement is either a request for counsel or it is not, Justice Souter refused to agree that the concept supported a rule permitting interrogators to continue questioning until and unless a statement rises to the level of a definite request.⁽²⁶⁹⁾

Justice Souter's concurrence next examined practical problems with the Davis rule.⁽²⁷⁰⁾ Although the Davis majority claimed to further "society's strong interest in `effective law enforcement,'"<sup>(271)</sup> it would only have an effect, according to Justice Souter, on those few cases in which a suspect would request an attorney if asked outright, but did not affirmatively assert the right on his own.<sup>(272)</sup> Although the clarification rule will result in lost confessions, Justice Souter believed that the price "is one that Miranda . . . determined should be borne."<sup>(273)</sup> More importantly, the clarification rule would avoid difficult judgment calls by officers<sup>(274)</sup> and "assure that the `judgment call' [, whether a suspect has invoked the right to an attorney,] will be made by the party most competent to resolve the ambiguity . . .[--]the individual suspect."⁽²⁷⁵⁾

The second part of the concurrence addressed the petitioner's argument that any ambiguous statement should terminate police questioning.⁽²⁷⁶⁾ Like the majority, Justice Souter refused to accept this argument, stating that, although the clarification rule could be abused, "the strong bias in favor of individual choice may also be disserved by stopping questioning when a suspect wants it to continue."⁽²⁷⁷⁾ The cost to society, in terms of lost confessions, resulting from the petitioner's rule would be unfortunate, especially in cases in which the rule would prevent a suspect from confessing even when he wanted to speak.⁽²⁷⁸⁾

Finally, Justice Souter restated his opinion that precedent was best served by a rule requiring clarification of ambiguous requests for counsel.⁽²⁷⁹⁾ He expressed faith in the trial courts' ability to apply the Davis rule correctly,⁽²⁸⁰⁾ and in interrogators' ability to clarify ambiguous statements based on "`good police practice,'" because, despite the Davis ruling to the contrary, "the case law under Miranda does not allow them to do otherwise."⁽²⁸¹⁾

4. What Does Davis Mean?

Davis established a new rule that permits law enforcement officers to continue interrogating a suspect until such time as he or she makes an unambiguous request for a lawyer.⁽²⁸²⁾ This established a uniform rule for the previously divided circuit courts to follow⁽²⁸³⁾ and increased the power of police and other interrogating officers, who were previously bound by the more restrictive rules formulated by the circuit courts.⁽²⁸⁴⁾

Unfortunately, the rule established in Davis may prove too weak to effect any real change in the law.⁽²⁸⁵⁾ Although Davis established the federal constitutional limits of the protection available to suspects who make ambiguous statements,⁽²⁸⁶⁾ lower courts are still free to interpret their state constitutions as giving suspects greater protection than that afforded by the Davis rule.⁽²⁸⁷⁾

  Was the Davis Decision Predictable?

The justices who decided Davis, with the exception of Justices Souter, Thomas, and Ginsburg,⁽²⁸⁸⁾ had all previously heard other cases dealing with ambiguous requests for counsel.⁽²⁸⁹⁾ By examining the opinions that the justices had previously authored or joined, it is possible to see where they stood on the issue of ambiguity prior to the Davis decision. These opinions suggest that the Davis decision was predictable.⁽²⁹⁰⁾ It does not matter that three of the justices' votes⁽²⁹¹⁾ were unpredictable under this test: the majority of five was discernable, as was at least one concurrence;⁽²⁹²⁾ the additional three votes would not have changed the outcome regardless of how these three justices voted.

A.  The Majority Opinion: Justice O'Connor, Chief Justice Rehnquist, and Justices Scalia, Kennedy, and Thomas

1.  Justice O'Connor

Oregon v. Bradshaw⁽²⁹³⁾ marked the first time that Justice O'Connor⁽²⁹⁴⁾ participated in a case involving an ambiguous request for counsel. She joined Justice Rehnquist's majority opinion,⁽²⁹⁵⁾ which held that a suspect's inquiry about what was going to happen to him next was sufficient to waive his previously asserted right to counsel⁽²⁹⁶⁾ and allowed police officers to resume interrogation.⁽²⁹⁷⁾ Bradshaw demonstrated Justice O'Connor's willingness to accept a police officer's interpretation of a suspect's statements,⁽²⁹⁸⁾ and her support for effective interrogation and investigation.⁽²⁹⁹⁾

Justice O'Connor next joined the unsigned majority opinion in Smith v. Illinois,⁽³⁰⁰⁾ which refused to directly address the issue of ambiguity,⁽³⁰¹⁾ and joined Chief Justice Rehnquist's majority opinion in Connecticut v. Barrett,⁽³⁰²⁾ agreeing with his narrow statement that "[i]nterpretation [of a suspect's request for counsel] is only required where the defendant's words, understood as ordinary people would understand them, are ambiguous."⁽³⁰³⁾ These opinions appear to support police rights as well as an increased restriction of the group of statements that is sufficient to invoke a suspect's right to counsel.⁽³⁰⁴⁾

Justice O'Connor joined Justice Kennedy's majority opinion in Minnick v. Mississippi,⁽³⁰⁵⁾ a case in which a police interrogation that took place following a request for and consultation with counsel, but without the suspect's attorney present, was found to be impermissible.⁽³⁰⁶⁾

These opinions demonstrate that, prior to Davis, Justice O'Connor sided consistently with conservative opinions that gave police officers the benefit of the doubt,⁽³⁰⁷⁾ and interpreted a suspects' mention of counsel in an increasingly restrictive manner.⁽³⁰⁸⁾ It was no surprise, then, that she would support the Davis rule permitting questioning without clarification until a suspect made a definite assertion of his right to counsel.⁽³⁰⁹⁾

It is interesting to note that the Davis opinion was authored by a justice who had never before authored an opinion dealing with the right to counsel.⁽³¹⁰⁾ This is especially noteworthy because Chief Justice Rehnquist, who had written several opinions on the subject,⁽³¹¹⁾ sided with the majority in Davis.

2.  Chief Justice Rehnquist

Chief Justice Rehnquist's⁽³¹²⁾ first exposure to the issue of requests for counsel arose in Fare v. Michael C.,⁽³¹³⁾ a case in which, as an associate justice, he joined the majority opinion,⁽³¹⁴⁾ agreeing that a juvenile suspect's request for his parole officer did not amount to an invocation of the juvenile's right to the presence of counsel.⁽³¹⁵⁾ This opinion distinguished attorneys from parole officers based on attorneys' unique ability and obligation to defend the rights of their clients,⁽³¹⁶⁾ and sharply circumscribed the sort of request that could invoke a suspect's Fifth Amendment rights to legal representation.⁽³¹⁷⁾

Justice Rehnquist took a more pro-government stance in Edwards v. Arizona,⁽³¹⁸⁾ in which he joined Justice Powell's concurrence.⁽³¹⁹⁾ The concurrence would have allowed the application of a "facts and circumstances" test to determine whether a suspect had sufficiently waived his previously asserted right to counsel,⁽³²⁰⁾ rather than allowing subsequent interrogations only upon initiation by the suspect.⁽³²¹⁾ The concurrence argued for a more strict reading of the Miranda rights as a "general prophylactic rule that is not manifestly required by anything in the text of the Constitution."⁽³²²⁾

Justice Rehnquist wrote the majority opinion in Oregon v. Bradshaw,⁽³²³⁾ concluding that a suspect who invoked his right to an attorney and subsequently asked "`what is going to happen to me now?'"⁽³²⁴⁾ had initiated conversation with the police.⁽³²⁵⁾ Thus, the subsequent interrogation that led to his confession did not violate the suspect's Fifth Amendment rights.⁽³²⁶⁾

In dicta, Justice Rehnquist stated that the Edwards prohibition on further questioning represented only "a prophylactic rule, designed to protect an accused in police custody from being badgered by police officers."⁽³²⁷⁾ He admitted that not all statements by defendants to police officers constituted a waiver of their previously asserted rights to counsel.⁽³²⁸⁾ However, Justice Rehnquist's decision indicated that he was willing to accept confessions, so long as they were not obtained in direct violation of the Constitution or of some earlier Supreme Court decision.⁽³²⁹⁾

Justice Rehnquist's pro-government stance was even more apparent in his dissent in Smith v. Illinois,⁽³³⁰⁾ a case in which he indicated that the statement "`Uh, yeah, I'd like to do that,'"⁽³³¹⁾ was not an assertion of the suspect's right to an attorney.⁽³³²⁾ The dissent maintained that the Edwards right applied during interrogation,⁽³³³⁾ and distinguished between interrogation and the reading of Miranda rights.⁽³³⁴⁾ Justice Rehnquist stated that police have a right to finish giving a suspect his rights, "even had his earlier response" effectively invoked his Fifth Amendment right to an attorney.⁽³³⁵⁾ Once again, Justice Rehnquist interpreted the Miranda and Edwards protections restrictively, and would allow confessions where the police continued interrogations following an ambiguous invocation of the right to counsel.⁽³³⁶⁾

Justice Rehnquist would also have allowed the trial court to consider the entire conversation leading up to the ambiguous statement to determine whether an accused actually had invoked his right to counsel.⁽³³⁷⁾ Interestingly, Justice Rehnquist stated at the end of the Smith dissenting opinion that "[c]ommon sense suggests that the police should both complete reading petitioner his rights and then ask him to state clearly what he elects to do,"⁽³³⁸⁾ supporting the very requirement he later decided against in Davis.⁽³³⁹⁾

By the time he wrote the majority opinion in Connecticut v. Barrett,⁽³⁴⁰⁾ Justice Rehnquist had become the Chief Justice.⁽³⁴¹⁾ In Barrett, the Supreme Court held that when a suspect, who had been read his Miranda rights, subsequently stated that "he would not give the police any written statements but he had no problem in talking about the incident,"⁽³⁴²⁾ such a statement did not bar the admission of his subsequent oral confessions.⁽³⁴³⁾ The suspect "made clear . . . his willingness to talk,"⁽³⁴⁴⁾ and Chief Justice Rehnquist emphasized that the aim of Miranda was to help ensure that the "`individual's right to choose between speech and silence remains unfettered.'"⁽³⁴⁵⁾ Moreover, according to Chief Justice Rehnquist, the additional protection provided by Edwards⁽³⁴⁶⁾ was "instead justified only by reference to its prophylactic purpose."⁽³⁴⁷⁾ Miranda and Edwards, therefore, represent a "barrier against police coercion;"⁽³⁴⁸⁾ there was no coercion in Barrett,⁽³⁴⁹⁾ and the Chief Justice found "no constitutional objective that would be served by suppression" of Barrett's confessions, since his request for counsel had been limited and "accompanied by affirmative announcements of his willingness to speak with the authorities."⁽³⁵⁰⁾

The Chief Justice maintained that the Court must "`give a broad, rather than a narrow, interpretation to a defendant's request for counsel.'"⁽³⁵¹⁾ He then narrowed the scope of ambiguity, stating that "[i]nterpretation is only required where the defendant's words, understood as ordinary people would understand them, are ambiguous."⁽³⁵²⁾ This statement enabled the Chief Justice to admit the defendant's confessions because Barrett's statement that he "had no problem in talking about the incident," was itself unambiguous.⁽³⁵³⁾ Once again, the Chief Justice sided with the opinion--here the majority--which admitted at trial confessions made following an arguably ambiguous request for counsel.⁽³⁵⁴⁾

Chief Justice Rehnquist joined the majority in Arizona v. Roberson,⁽³⁵⁵⁾ a case in which the Court held that the Edwards prohibition on further questioning (following an invocation of the right to counsel) applied to interrogation concerning all investigations, not only the one for which the suspect originally had requested counsel.⁽³⁵⁶⁾ That opinion initially appeared to indicate that Chief Justice Rehnquist favored enlarging a suspect's rights under Edwards, but it also granted this increased protection only after the suspect requested counsel.⁽³⁵⁷⁾

More recently, Chief Justice Rehnquist joined Justice Scalia's dissent in Minnick v. Mississippi.⁽³⁵⁸⁾ Although Minnick did not deal with the ambiguous request for counsel per se,⁽³⁵⁹⁾ Justice Scalia's dissent argued strongly against further expansion of the Edwards and Miranda doctrines,⁽³⁶⁰⁾ a position that was later upheld in Davis.⁽³⁶¹⁾ The dissent in Minnick would have allowed suspects to waive their previously asserted rights to counsel in police-initiated interrogations following a consultation with an attorney.⁽³⁶²⁾ In this case, such a holding would allow the Court to approve the lower court's admission of the confession, and affirm the defendant's capital murder conviction.⁽³⁶³⁾

If any pattern emerges from the opinions the Chief Justice has written and joined, it strongly favors admission of a suspect's confession, provided the confession is freely given and not made under improper police coercion.⁽³⁶⁴⁾ When viewed in this light, the Chief Justice's position in Davis seems to follow from his earlier decisions. The increased power Davis gives interrogating officers allows more statements into evidence, and decreases a suspect's ability to retract a freely given confession, a position that Justice Rehnquist's prior positions support.⁽³⁶⁵⁾ Given the choice between an opinion that supported effective law enforcement and one that would expand the prophylactic protections of Miranda and Edwards, the Chief Justice's position appears clear.

3.  Justice Scalia

Justice Scalia probably joined the majority opinion in Davis because he wanted to affirm the petitioner's conviction, rather than because he agreed with the majority's stand on the issues presented.⁽³⁶⁶⁾ His true opinion emerged in his concurrence, in which he advocated a rule that would allow "fairly obtained" confessions even when a suspect unambiguously requested an attorney.⁽³⁶⁷⁾ Justice Scalia's position in opinions preceding Davis demonstrated the evolution of the view he espoused in his concurrence.⁽³⁶⁸⁾

4.  Justice Kennedy

Justice Kennedy⁽³⁶⁹⁾ faced the issue of an ambiguous request for counsel only once prior to Davis--in Arizona v. Roberson.⁽³⁷⁰⁾ He filed a dissenting opinion in Roberson,⁽³⁷¹⁾ in which he refused to extend the Edwards rule⁽³⁷²⁾ to cover all investigations, and not only the investigation about which the defendant had been questioned when he invoked the privilege.⁽³⁷³⁾ Justice Kennedy stated that "the rule of Edwards is our rule, not a Constitutional command; and it is our obligation to justify its expansion."⁽³⁷⁴⁾ According to Justice Kennedy, there was no justification for expanding Edwards, because the requirement that police re-read the Miranda rights to a suspect prior to any interrogation should sufficiently protect the suspect's rights.⁽³⁷⁵⁾ Justice Kennedy noted that preventing police from interrogating suspects about other investigations would unduly burden law enforcement efforts,⁽³⁷⁶⁾ without protecting the suspect's rights any better than would another reading of his Miranda rights.⁽³⁷⁷⁾

Justice Kennedy believed that it should be the suspect's choice whether to talk to police, and that although he might not want to speak with officers about one investigation, he might want to offer information about another.⁽³⁷⁸⁾ Justice Kennedy discussed a "balancing of interests" between the suspect's freedom from coercion and the interest in effective law enforcement.⁽³⁷⁹⁾ Justice Kennedy believed that it was improper to extend Edwards when the former interest did not significantly outweigh the latter, and where existing safeguards were sufficient to protect the suspect's Fifth Amendment Rights.⁽³⁸⁰⁾

Given this view, it is logical that Justice Kennedy joined Justice O'Connor's majority opinion in Davis. Justice Kennedy believed, as the majority in Davis had stated, that Miranda warnings are sufficient to protect a suspect's rights in the absence of police coercion.⁽³⁸¹⁾

B.  Justice Scalia's Concurrence

Justice Scalia⁽³⁸²⁾ joined the Chief Justice's majority opinion in Connecticut v. Barrett,⁽³⁸³⁾ demonstrating a willingness to uphold a voluntary statement made by a suspect who had understood his Miranda rights, but had still decided to confess.⁽³⁸⁴⁾ He also joined Justice Stevens's majority opinion in Arizona v. Roberson,⁽³⁸⁵⁾ indicating that the Edwards decision's protection applied to all subsequent interrogations, not just the one in which the suspect had initially requested an attorney.⁽³⁸⁶⁾ These two opinions, seen together, lay a foundation for Justice Scalia's concurring opinion in Davis. Justice Scalia supported acceptance of any freely given confession, so long as it was made by a suspect who was informed of, and understood, his Miranda rights.⁽³⁸⁷⁾ This was precisely the position that his concurrence took in Davis,⁽³⁸⁸⁾ strengthened by the federal statute that he found to support his personal position.⁽³⁸⁹⁾

C.  Justice Souter's Concurrence in the Judgment: Joined by Justices Blackmun, Stevens, and Ginsburg

1.  Justice Blackmun

Justice Blackmun⁽³⁹⁰⁾ wrote the majority opinion in Fare v. Michael C.⁽³⁹¹⁾ In Fare, Justice Blackmun stated that a suspect's request to speak with his probation officer was insufficient to invoke the suspect's Fifth Amendment right to an attorney.⁽³⁹²⁾ However, the suspect in Fare had indicated that he understood that he had the right to an attorney, and was very familiar with the custodial interrogation process.⁽³⁹³⁾ Perhaps, more importantly, the interrogating officers' words and actions in Fare probably would have satisfied the clarification requirement.⁽³⁹⁴⁾

In 1981, Justice Blackmun joined Justice White's majority opinion in Edwards v. Arizona,⁽³⁹⁵⁾ upholding a suspect's right to terminate questioning at will by requesting an attorney.⁽³⁹⁶⁾ This position seems to support the clarification requirement as well, if only conceptually.

Justice Blackmun then joined Justice Marshall's dissent in Oregon v. Bradshaw,⁽³⁹⁷⁾ which focused on the need to protect the suspect's Fifth Amendment rights⁽³⁹⁸⁾ and the importance of establishing "`additional safeguards . . . when the accused asks for counsel.'"⁽³⁹⁹⁾ He was also a part of the unsigned majority opinion in Smith v. Illinois,⁽⁴⁰⁰⁾ which refused to address directly the issue of ambiguity and found no ambiguity in the petitioner's request for counsel.⁽⁴⁰¹⁾

Justice Blackmun's opinion in Connecticut v. Barrett⁽⁴⁰²⁾ initially appeared somewhat out of character because he sided with the majority⁽⁴⁰³⁾ in admitting a suspect's confession.⁽⁴⁰⁴⁾ However, a closer examination of the facts reveals that Barrett, before making an oral confession,⁽⁴⁰⁵⁾ had been repeatedly informed of his Miranda rights by the interrogating officers,⁽⁴⁰⁶⁾ and that he had clearly indicated that he did not want an attorney present. The statement, according to the Court, was not ambiguous with regard to whether Barrett was willing to speak.⁽⁴⁰⁷⁾

It should be noted that Justice Blackmun is no longer on the Supreme Court,⁽⁴⁰⁸⁾ removing one of the votes that supported the concurrence in Davis. Depending upon the position taken by Justice Blackmun's successor,⁽⁴⁰⁹⁾ there may no longer be sufficient support among the justices to modify or overturn Davis outright. This will be an interesting issue to examine if the Court hears another case dealing with an ambiguous request for counsel.

2.  Justice Stevens

Justice Stevens's⁽⁴¹⁰⁾ first encounter with an ambiguous request for counsel arose in Fare v. Michael C.,⁽⁴¹¹⁾ a case in which he joined Justice Marshall's dissent.⁽⁴¹²⁾ This dissent stated that a juvenile's request for his parole officer should suffice to invoke that individual's Fifth Amendment rights to silence and representation.⁽⁴¹³⁾ In joining with this dissenting opinion,⁽⁴¹⁴⁾ Justice Stevens appeared to be interested in upholding suspects' rights against self-incrimination and representation whenever possible.

This view is supported by Justice Stevens's positions in later cases. For example, Justice Stevens joined the majority opinion in Edwards v. Arizona,⁽⁴¹⁵⁾ a case that upheld the suspect's right to suspend all questioning following his request for counsel.⁽⁴¹⁶⁾ Later, Justice Stevens joined Justice Marshall's dissent in Oregon v. Bradshaw,⁽⁴¹⁷⁾ upholding a strict reading of Edwards, which allowed police to resume interrogation only after the suspect "himself reopen[ed] the dialogue about the subject matter of the criminal investigation."⁽⁴¹⁸⁾ The fact that Justice Stevens joined the Bradshaw dissent indicated a stronger support for a criminal's right to remain silent, and conformed with his decision to side with the second concurrence in Davis.⁽⁴¹⁹⁾ It was this concurrence that supported clarification,⁽⁴²⁰⁾ and thus provided more protection for the criminal's rights than the majority opinion would allow.⁽⁴²¹⁾

Justice Stevens next joined the unsigned majority opinion in Smith v. Illinois,⁽⁴²²⁾ which refused to address outright the issue of ambiguous requests, but held that subsequent statements by an accused cannot be used to create ambiguity in a previous assertion of the right to counsel.⁽⁴²³⁾ Once again, Justice Stevens joined an opinion that granted extensive protection to the rights of suspects.

Justice Stevens wrote the dissenting opinion in Connecticut v. Barrett,⁽⁴²⁴⁾ a case in which he maintained that the suspect's request for an attorney "before making a deal"⁽⁴²⁵⁾ and before the suspect had agreed to talk to police, but refused to have his statements tape recorded, indicated that the suspect had invoked his right to counsel.⁽⁴²⁶⁾ This dissent likened the suspect's statements to those of the suspect in Edwards;⁽⁴²⁷⁾ Justice Stevens believed that both suspects had sufficiently asserted their rights to counsel,⁽⁴²⁸⁾ and that courts should broadly interpret suspects' requests for counsel.⁽⁴²⁹⁾

In light of the above, it comes as no surprise that Justice Stevens joined Justice Souter's concurrence in the judgment in Davis. Justice Stevens has consistently supported a broad interpretation of a suspect's requests for an attorney.⁽⁴³⁰⁾ Therefore, it was predictable that he would advocate the clarification test,⁽⁴³¹⁾ which provides far fewer chances that a suspect's meaning will be misunderstood than does the test supported by the Davis majority.

  Subsequent Enforcement of Davis in Lower Courts

A.  Lord v. Duckworth

Lord v. Duckworth⁽⁴³²⁾ represented the first time an appeals court faced the ambiguity question subsequent to the Davis decision.⁽⁴³³⁾ The Seventh Circuit Court of Appeals was called upon to determine whether the statement "I can't afford a lawyer but is there anyway [sic] I can get one?"⁽⁴³⁴⁾ was sufficient to invoke a suspect's right to counsel.⁽⁴³⁵⁾

The Seventh Circuit Court of Appeals reviewed the Davis decision,⁽⁴³⁶⁾ recognizing it as the most recent case on point.⁽⁴³⁷⁾ The court then held that the petitioner had not made a clear request for counsel.⁽⁴³⁸⁾ It applied the Davis rule,⁽⁴³⁹⁾ and determined that the police had acted properly in continuing their interrogation.⁽⁴⁴⁰⁾

Lord v. Duckworth was the first decision since Davis to uphold the Supreme Court's new rule.⁽⁴⁴¹⁾ The Seventh Circuit made no reference to any prior cases within the circuit⁽⁴⁴²⁾ or to the Indiana Constitution. This indicated that the Seventh Circuit wanted to adopt the Davis rule, and decided that this was a good opportunity to do so.

B.  State v. Morris

The Supreme Court of Kansas recently faced the ambiguity issue in State v. Morris,⁽⁴⁴³⁾ a case in which the court followed Davis despite the existence of a state rule permitting clarification.⁽⁴⁴⁴⁾ The court chose not to justify the clarification rule under the Kansas State Constitution,⁽⁴⁴⁵⁾ and instead implemented the Davis rule in upholding the suspect's conviction.⁽⁴⁴⁶⁾

Davis was decided following oral arguments in Morris, but prior to the Morris court's decision.⁽⁴⁴⁷⁾ Clearly, the Supreme Court of Kansas saw the judicially created safeguards of Miranda and Edwards as the products of the United States Constitution.⁽⁴⁴⁸⁾ Because of this, and because the Supreme Court of Kansas believed that the Kansas State Constitution gave no more protection to an individual's right against self-incrimination than did the Fourteenth Amendment,⁽⁴⁴⁹⁾ it was bound by the decisions that the United States Supreme Court had made regarding those rights.⁽⁴⁵⁰⁾

C.  State v. Hoey

State v. Hoey⁽⁴⁵¹⁾ is another recent state Supreme Court decision that applied the Davis holding.⁽⁴⁵²⁾ Although the issue of an ambiguous request for counsel was not the sole issue presented on appeal,⁽⁴⁵³⁾ the Supreme Court of Hawaii considered it at length before deciding that the Hawaii rule must differ from the one announced in Davis.⁽⁴⁵⁴⁾

While the Hawaii court acknowledged that it had a duty to provide defendants with the minimum protection mandated by the United States Constitution,⁽⁴⁵⁵⁾ it decided to "afford [its] citizens broader protection."⁽⁴⁵⁶⁾ The Hawaii court held that when suspects make ambiguous requests for counsel, "the police must either cease all questioning or seek non-substantive clarification of the suspect's request."⁽⁴⁵⁷⁾ The Hawaii court chose to follow Justice Souter's concurrence in the judgment in Davis, rather than the majority rule.⁽⁴⁵⁸⁾

The Supreme Court of Hawaii justified this position under article I, section 10 of the Hawaii Constitution.⁽⁴⁵⁹⁾ The court stated that "as the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawai`i Constitution, we are free to give broader protection than that given by the federal constitution."⁽⁴⁶⁰⁾

The Supreme Court of Hawaii recognized the new rule established in Davis,⁽⁴⁶¹⁾ but chose not to follow the United States Supreme Court's lead in restricting the types of comments that are sufficient to invoke a suspect's Fifth Amendment rights.⁽⁴⁶²⁾ If a state court wishes to grant its citizens broader rights than what they possess under the United States Constitution, it may do so provided that a provision in its own constitution permits this.⁽⁴⁶³⁾ The Supreme Court of Hawaii chose to extend further protections to its citizens.⁽⁴⁶⁴⁾

D.  How Other Circuits Are Likely to Interpret the Davis Rule

The previous Parts suggest that it is impossible to determine how lower courts will interpret and enforce the Davis decision.⁽⁴⁶⁵⁾ Most likely, those state courts that most strongly favored clarification⁽⁴⁶⁶⁾ will continue to allow it, finding justification for the rule under their respective state constitutions.⁽⁴⁶⁷⁾ State and circuit courts that favored complete cessation of questioning upon any mention of an attorney⁽⁴⁶⁸⁾ are also likely to continue this practice under the aegis of state constitutions.

However, some courts turned to the clarification test only after noting that the United States Supreme Court had not yet made a definitive decision regarding ambiguous requests for counsel.⁽⁴⁶⁹⁾ It is possible that these courts, when faced with the choice of whether to enforce Davis, will follow the United States Supreme Court and abolish the clarification requirement.⁽⁴⁷⁰⁾

Ultimately, the most that can be said for Davis is that it gave the state and circuit courts a means to eliminate the clarification test if they choose to do so. It is not likely to establish a uniform rule of decision for cases involving ambiguity,⁽⁴⁷¹⁾ nor does it establish a procedure that clarifies the proper actions for law enforcement officers to take in interrogating suspects who make ambiguous requests for counsel.⁽⁴⁷²⁾

VIII.  Questions Left Unanswered by Davis

A.  Defining an Ambiguous Request

Although the United States Supreme Court established a rule to govern procedures following ambiguous requests for counsel,⁽⁴⁷³⁾ it again refused to define ambiguity or to establish exactly which type of statement is considered ambiguous.⁽⁴⁷⁴⁾ The existing law leaves the definition of ambiguity vague, somewhat reminiscent of Justice Stewart's now-infamous definition of the word "obscenity."⁽⁴⁷⁵⁾ States are left to create their own definitions of ambiguity⁽⁴⁷⁶⁾ or to try to make some sense of the United States Supreme Court's jumbled standard.⁽⁴⁷⁷⁾ Regardless, the standard remains unclear.

Although the vagueness of the standard may create some problems among the lower courts as they struggle to define ambiguity, it is not completely unworkable. In fact, this overly vague standard may produce beneficial results, as it will allow the state courts to tailor their definitions of ambiguity to fit the tests they choose to follow regarding requests for counsel. Courts that require even the most ambiguous references to counsel to stop all questioning,⁽⁴⁷⁸⁾ may wish to narrowly define ambiguity, to provide the maximum protection for all criminal suspects.⁽⁴⁷⁹⁾ The courts that follow the Davis holding will probably tailor their definition of ambiguity to include many references to counsel. If only an unequivocal⁽⁴⁸⁰⁾ request for counsel qualifies as unambiguous, then the rest of the spectrum of comments that includes references to counsel must therefore qualify as ambiguous under this standard. The courts that follow the clarification rule⁽⁴⁸¹⁾ will probably develop individualized standards and definitions of ambiguity, which will be dependent upon the facts and circumstances of the cases that arise during the development of these standards.

B.  When Must States Follow the Davis Decision?

The Davis opinion failed to establish a uniform rule for all lower courts to follow.⁽⁴⁸²⁾ Yet it is questionable whether the United States Supreme Court could have done any more than it did to create such a rule. As the nation's highest court, the United States Supreme Court is followed by lower courts when it sets out minimum protections, but state courts are always free to grant their citizens greater freedom under their state constitutions than the United States Constitution allows.

  Conclusion: What Does Davis Mean and Will the United States Supreme Court Hear Another Case Like It?

Considering the questions Davis left unanswered,⁽⁴⁸³⁾ the weakness of the test it established,⁽⁴⁸⁴⁾ and the less than uniform way it has been received and interpreted by the lower courts,⁽⁴⁸⁵⁾ it seems logical to believe that the United States Supreme Court will hear another case involving the issue of an ambiguous request for counsel. Although it may not hear the first such case seeking certiorari, it is likely that the Court will wait to see if the Davis decision proves itself unworkable, or until a large majority of state courts have refused to follow it, before clarifying or overturning the holding in Davis.

It nevertheless appears certain that the Davis rule will be changed, perhaps even sooner than expected. Already several states' highest courts have chosen to circumvent Davis and retain their old rules.⁽⁴⁸⁶⁾ The confusion and the split among lower courts that existed before Davis has returned, albeit to a somewhat lesser degree.⁽⁴⁸⁷⁾

The Supreme Court will probably hear another case to conclusively determine the standard for ambiguous requests for counsel. Yet the standard it will choose is likely to differ from the Davis rule. If Davis proves to be unworkable, the Court will probably endorse the clarification requirement.⁽⁴⁸⁸⁾ Support for this hypothesis is twofold.

First, the clarification requirement was endorsed by Justice Souter's concurrence in the judgment.⁽⁴⁸⁹⁾ It has already found support among members of the Court, and may, therefore, seem more palatable to the Court in the future. Moreover, even the Davis majority indicated that it believed that clarification was a good idea.⁽⁴⁹⁰⁾

Second, the clarification requirement⁽⁴⁹¹⁾ had already been tested and adopted by a majority of the federal circuit courts.⁽⁴⁹²⁾ It has proven itself workable and acceptable to the lower courts, and when the Supreme Court looks for a rule to replace Davis, these may be important factors for consideration.

Davis appears to have been an attempt to increase the power of law enforcement officials at a time during which the United States faced increasing violence,⁽⁴⁹³⁾ and the Supreme Court wanted to prevent criminals from getting their convictions reversed on technicalities.⁽⁴⁹⁴⁾ The Court also was unwilling to allow criminals who freely confessed, to retract those confessions after conversing with court-appointed attorneys.⁽⁴⁹⁵⁾ Unfortunately, it increased the power of law enforcement officials beyond that which the current traffic would bear,⁽⁴⁹⁶⁾ and did so in a manner that left loopholes large enough for the lower courts to leap through with relative ease.

If the United States Supreme Court intended for the Davis decision to establish a single uniform procedure for dealing with ambiguous requests for counsel, it has probably failed. If, however, Davis can be seen as a first step toward such a uniform procedure, which will later be amended to create a rule law enforcement officers and suspects alike can depend upon, then it is a step in the right direction.

Susan L. Ross^*

1. Davis v. United States, 114 S. Ct. 2350 (1994).

2. Miranda v. Arizona, 384 U.S. 436 (1966).

3. The majority opinion was written by Justice O'Connor, and joined by Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas. Davis, 114 S. Ct. at 2352; see also infra part V.C.1. Justice Scalia filed a concurring opinion. Davis, 114 S. Ct. at 2357 (Scalia, J., concurring); see also infra part V.C.2. Justice Souter also concurred. Davis, 114 S. Ct. at 2358 (Souter, J., concurring in the judgment). Justice Souter was joined by Justices Blackmun, Stevens, and Ginsburg. Id. (Souter, J., concurring in the judgment); see also infra part V.C.3.

4. See infra part IV.

5. Davis, 114 S. Ct. at 2356.

6. Miranda v. Arizona, 384 U.S. 436 (1966).

7. Edwards v. Arizona, 451 U.S. 477 (1981).

8. See, e.g., Minnick v. Mississippi, 498 U.S. 146 (1990); Michigan v. Harvey, 494 U.S. 344 (1990); Arizona v. Roberson, 486 U.S. 675 (1988); Connecticut v. Barrett, 479 U.S. 523 (1987); Moran v. Burbine, 475 U.S. 412 (1986); Smith v. Illinois, 469 U.S. 91 (1984) (per curiam); Oregon v. Bradshaw, 462 U.S. 1039 (1983); Fare v. Michael C., 442 U.S. 707 (1979).

9. See infra notes 93-122 and accompanying text.

10. See infra notes 123-65 and accompanying text.

11. See infra notes 166-287 and accompanying text; see also Davis, 114 S. Ct. at 2357-64.

12. See infra notes 288-431 and accompanying text.

13. See infra notes 432-72 and accompanying text; see also Lord v. Duckworth, 29 F.3d 1216 (7th Cir. 1994); State v. Hoey, 881 P.2d 504 (Haw. 1994); State v. Morris, 880 P.2d 1244 (Kan. 1994).

14. See infra part VII.D.

15. See infra notes 473-82 and accompanying text.

16. Miranda v. Arizona, 384 U.S. 436 (1966). Miranda involved four different cases, all consolidated for hearing before the Supreme Court. Id. In each case, suspects in criminal investigations were placed in private rooms, from which they could not communicate with the outside world. Id. at 445. None of the defendants was given effective warnings of his constitutional rights prior to interrogation. Id. In each case, the suspect made an oral statement implicating himself in the crime at issue; three of the suspects also signed written confessions. Id.

The Supreme Court decided that suspects are entitled to certain procedures, designed to protect their Fifth Amendment rights. Id. at 467. Among these are the right of a suspect to be informed of his right to consult with an attorney, and his right to have an attorney present during his interrogation. Id. at 470-73. Miranda also stated that when a suspect invokes his right to an attorney, all questioning must cease until an attorney is present, and that just because a suspect begins to respond to a police interrogation, he has not given up his right to remain silent. Id. at 473-75. The Miranda Court was concerned about the potential breadth of such protective procedures, and indicated that although these rights were important limitations on custodial interrogations, they were not intended to interfere with effective law enforcement. Id. at 479-91.

17. See U.S. Const. amend. V. The Fifth Amendment guarantees that no person "shall be compelled in any criminal case to be a witness against himself." Id.

18. Miranda, 384 U.S. at 467-73. Miranda established that a suspect in custody must be clearly informed prior to interrogation that he has the right to remain silent, that anything he says will be used against him in court, that he has the right to consult with a lawyer and to have the lawyer present during his interrogation, and that if he cannot afford a lawyer, one will be appointed for him. Id.

Following Miranda, police began "reading suspects their rights" from printed cards that listed the above freedoms. One California card read as follows:

"Before we ask you any questions you must understand your rights.

You have the right to remain silent.

Anything you say can be used against you in court.

You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning.

If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.

If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer."United States v. Fouche, 833 F.2d 1284, 1286 n.2 (9th Cir. 1987), cert. denied, 486 U.S. 1017 (1988). These statements of a suspect's rights have come to be commonly known as "Miranda rights."

19. Miranda, 384 U.S. at 473.

20. Id. at 473-74. Miranda goes on to state that "[a]t that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent." Id. at 474.

21. Davis, 114 S. Ct. at 2354 (citing Michigan v. Tucker, 417 U.S. 433, 443-44 (1974)); see also U.S. Const. amend. V.

22. Arizona v. Roberson, 486 U.S. 675, 683 (1987).

23. See Fare v. Michael C., 442 U.S. 707, 719 (1979).

24. Id. The Supreme Court was also concerned about possible police coercion and abuse of interrogation procedures, and about the accuracy of transcription of suspects' statements. Id. Having an attorney present was considered a safeguard against these potential problems. Id.

25. Fare v. Michael C., 442 U.S. 707 (1978). Fare involved a statement made by a minor during a custodial interrogation following his arrest on suspicion of murder. Id. at 710-11. The sixteen-year-old defendant had been on probation since the age of twelve. Id. at 710. After being read his Miranda rights, the defendant indicated that he did not want an attorney present and asked for his probation officer. Id. at 710-11. The defendant claimed that he had made this request because he did not trust the police to provide him with a genuine attorney. Id. When the police refused to contact the probation officer, the defendant answered their questions and implicated himself in the murder. Id. at 711. The California Supreme Court held that the minor's request "constituted an invocation of [his] Fifth Amendment rights," and suppressed the confession. See id. at 714. Justice Blackmun wrote the opinion of the United States Supreme Court, and was joined by Chief Justice Burger and Justices Stewart, White, and Rehnquist. Id. at 709. Justices Marshall, Brennan, and Stevens dissented, id. at 728 (Marshall, J., dissenting), and Justice Powell filed a separate dissent. Id. at 732 (Powell, J., dissenting).

26. Id. at 727.

27. Id. at 719. The Court noted, in particular, that a parole officer generally has no legal training and does not have the power to act on behalf of his client. Id. Communications between parolees and their parole officers are not privileged; in many cases, the officer is required by law to investigate charges against the minor parolee, and to report his findings to the state. Id. at 719-21. The parole officer is a peace officer, and his duties "are incompatible with the role of legal advisor to a juvenile accused of crime." Id. at 721 n.5.

28. Id. at 721.

29. Id. (quoting In re Michael C., 579 P.2d 7, 12 (Cal.), cert. granted sub nom. Fare v. Michael C., 439 U.S. 925 (1978), and rev'd, 442 U.S. 707 (1979)).

30. Fare, 442 U.S. at 719-21.

31. Id. at 720.

32. Id. at 719-21.

33. Id. at 725.Where the age and experience of a juvenile indicate that his request for his probation officer or his parents is, in fact, an invocation of his right to remain silent, the totality approach will allow the court the necessary flexibility to take this into account in making a waiver determination. Id.

34. Id.

35. Fare, 442 U.S. at 724-25.

36. Id. at 725 (citing Miranda, 384 U.S. at 475-77).

37. Edwards v. Arizona, 451 U.S. 477 (1981).

38. The Edwards defendant was arrested on suspicion of murder. Id. at 478. He was then read his Miranda rights at a police station and agreed to submit to questioning. Id. Later, the defendant made clear his desire to have legal representation and called an attorney. Id. at 479. The following morning, police resumed the interrogation, over the defendant's objection and before he had an opportunity to confer with his attorney. Id. During this interrogation, the defendant confessed to the murder. Id.

The Arizona Supreme Court determined that the defendant had waived his right to remain silent during the second interrogation by responding to the interrogators' questions, and affirmed the trial court's admission of his confession. Id. at 480. The Supreme Court reversed, finding that the police had improperly resumed interrogation when the defendant's attorney was not present, and that the defendant had not waived his Fifth and Fourteenth Amendment rights to the presence of counsel. Id.

39. Id. at 484-85 (footnote omitted).

40. The majority opinion was written by Justice White, and was joined by Justices Stewart, Brennan, Marshall, Blackmun, and Stevens. Id. at 478. Chief Justice Burger concurred in the judgment. Id. at 487 (Burger, J., concurring in the judgment). Justice Powell concurred in the result, in an opinion joined by Justice Rehnquist. Id. at 488 (Powell, J., concurring in the result).

41. Edwards, 451 U.S. at 485 (quoting Fare v. Michael C., 442 U.S. 707, 719 (1979)).

42. Id. The Court also stated that it is not improper for police to resume interrogation of a suspect, even after he has asserted his right to counsel, if the accused volunteers more information or invites further interrogation. Id. When the suspect does so, the state has the burden of proving that he initiated further questioning, and that in so doing, he intentionally and knowingly waived his previously asserted right to counsel. Id. It is vital that the suspect himself initiated further contact, id. at 484-85; otherwise, further interrogation or information obtained by the police is deemed to violate the defendant's Fifth Amendment rights. Id.

43. Arizona v. Roberson, 486 U.S. 675 (1988).

44. Id. at 677-88 (written by Justice Stevens and joined by Justices Brennan, White, Marshall, Blackmun, and Scalia).

45. Id. at 683.

46. See generally id. at 677-83.

47. See Edwards, 451 U.S. at 479.

48. See Roberson, 486 U.S. at 679.

49. Smith v. Illinois, 469 U.S. 91 (1984) (per curiam).

50. See id. at 92-93. In response to being advised that he had a right to have a lawyer present, and upon being asked whether he understood this right, the suspect responded "`Uh, yeah. I'd like to do that.'" Id. at 93.

51. Id. at 92-93.

52. Id. at 93.

53. Id. at 93-94.

54. Smith, 469 U.S. at 94 (first alteration in original) (quoting Smith v. Illinois, 447 N.E.2d 556, 558-59 (Ill. App. 1983), aff'd, 466 N.E.2d 236 (Ill.), and rev'd, 469 U.S. 91 (1984) (per curiam)).

55. Id. at 95.

56. See id. at 95-96. See id. at 96 n.3 for a list of how the circuits divided on this issue.

57. Id. at 97 (quoting Smith, 466 N.E.2d at 242 (Simon, J., dissenting)).

58. Id. at 96-97.

59. Smith, 469 U.S. at 98.

60. Id.

61. Id. at 100-04 (Rehnquist, J., dissenting). The dissent was written by Justice Rehnquist and was joined by Chief Justice Burger and Justice Powell. Id. at 100.

62. Id. at 101 (Rehnquist, J., dissenting).

63. Id. (Rehnquist, J., dissenting).

64. Smith, 469 U.S. at 101 (Rehnquist, J., dissenting).

65. Id. at 104 (Rehnquist, J., dissenting). This is an interesting position because it contradicts Justice Rehnquist's subsequent position in Davis. See generally Davis v. United States, 114 S. Ct. 2350 (1994); see also infra part VI.A.2.

66. Connecticut v. Barrett, 479 U.S. 523 (1987).

67. Id. at 525-26.

68. Smith, 469 U.S. at 95.

69. Barrett, 479 U.S. at 529.

70. Id. at 525.

71. Id.

72. Id.

73. Id. The police repeated the interrogation because the tape recorder they had used to record the first interrogation had malfunctioned, and they wanted the defendant to repeat his comments on tape. Id.

74. Barrett, 479 U.S. at 526.

75. Id. (citing State v. Barrett, 495 A.2d 1044, 1049 (1985), cert. granted, 476 U.S. 1114 (1986), and rev'd, 479 U.S. 523 (1987)).

76. Id. at 527.

77. Id. at 529.

78. Id. at 525-30. The majority opinion was written by Chief Justice Rehnquist, and was joined by Justices Blackmun, Powell, O'Connor, and Scalia. Id. at 524.

79. Barrett, 479 U.S. at 529.

80. Id. (footnote omitted).

81. Id. at 529-30.

82. Id. at 530-35 (Brennan, J., concurring in the judgment).

83. Id. at 535 (Brennan, J., concurring in the judgment).

84. Barrett, 479 U.S. at 534 (Brennan, J., concurring in the judgment).

85. Id. (Brennan, J., concurring in the judgment).

86. Id. at 535 (Brennan, J., concurring in the judgment).

87. Id. at 534 n.5 (Brennan, J., concurring in the judgment).

88. Id. at 535 n.5 (Brennan, J., concurring in the judgment).

89. Barrett, 479 U.S. at 536 (Stevens, J., dissenting).

90. Id. at 536-37 (Stevens, J., dissenting).

91. Id. at 536 (Stevens, J., dissenting).

92. Id. at 536-37 (Stevens, J., dissenting).

93. See Smith v. Illinois, 469 U.S. 91 (1984) (per curiam); Oregon v. Bradshaw, 462 U.S. 1039 (1983); Edwards v. Arizona, 451 U.S. 477 (1981).

94. Edwards, 451 U.S. at 479.

95. Bradshaw, 462 U.S. at 1041-42.

96. Smith, 469 U.S. at 93.

97. Id.

98. Id. at 93-94.

99. Connecticut v. Barrett, 479 U.S. 523 (1987).

100. Id. at 529.

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

102. Id. at 178.

103. Smith v. Illinois, 469 U.S. 91 (1984) (per curiam). Prior to Smith, the Supreme Court had already begun to establish a working definition of ambiguity. See, e.g., Edwards v. Arizona, 451 U.S. 477 (1981); Miranda v. Arizona, 384 U.S. 436 (1966). The original test adopted in Miranda required the cessation of questioning if the defendant "indicate[d] in any manner . . . that he wishe[d] to consult with an attorney." Miranda, 384 U.S. at 444-45 (emphasis added). The Court overlooked this standard in Edwards, indicating in dicta that interrogation must cease "[i]f [the accused] requests counsel." Edwards, 451 U.S. at 482 (emphasis added). Edwards also indicated that an accused may not be re-interrogated "if he has clearly asserted his right to counsel." Id. at 485 (emphasis added). This interpretation sharply curtailed the Miranda standard, although the Court subsequently placed the two standards side by side without clarifying which was truly the proper analysis of a defendant's request. See Smith, 469 U.S. at 95 (citing Miranda, 384 U.S. at 444-45).

104. See Thompson v. Wainwright, 601 F.2d 768, 770-71 (5th Cir. 1979) (holding request for attorney unambiguous because subsequent waiver resulted from improper police coercion); Nash v. Estelle, 597 F.2d 513, 516, 520 (5th Cir.) ("I would like, you know, to have [an attorney] appointed" later clarified not to be request for counsel), cert. denied, 444 U.S. 981 (1979); Maglio v. Jago, 580 F.2d 202, 203 (6th Cir. 1978) ("Maybe I should have an attorney" held to be an ambiguous request for counsel).

105. People v. Superior Court, 542 P.2d 1390, 1394-95 (Cal. 1975), cert. denied, 429 U.S. 816 (1976).

106. Compare id. with People v. Krueger, 412 N.E.2d 537, 540 (Ill. 1980); see also infra part IV.C.

107. See infra part IV.A.

108. Nash v. Estelle, 597 F.2d 513 (5th Cir.), cert. denied, 444 U.S. 981 (1979).

109. Id. at 517.

110. Thompson v. Wainwright, 601 F.2d 768 (5th Cir. 1979).

111. Id. at 772.

112. See Smith v. Illinois, 469 U.S. 91, 95-96 (1984) (per curiam). In Smith, the Supreme Court examined language that was allegedly ambiguous and indicated that where the words of the statement itself are not ambiguous, the circumstances surrounding it cannot suffice to create ambiguity. Id. at 97-98. However, the Court refused to decide exactly when a request is ambiguous, leaving the question open to interpretation by the lower courts. Id. at 99-100. The Court explicitly refused to address issues of ambiguity arising out of either circumstances surrounding the request or the words of the request itself. Id.

113. The Sixth Circuit, which had already avoided the ambiguity issue by deciding, inter alia, that any mention of an attorney invoked a suspect's right to counsel, see Maglio v. Jago, 580 F.2d 202 (6th Cir. 1978), faced no such issue.

114. See, e.g., United States v. Cruz, 22 F.3d 96 (5th Cir.), cert. denied, 115 S. Ct. 280 (1994); United States v. March, 999 F.2d 456 (10th Cir.), cert. denied, 114 S. Ct. 483 (1993); United States v. Mendoza-Cecelia, 963 F.2d 1467 (11th Cir.), cert. denied, 506 U.S. 964 (1992); Towne v. Dugger, 899 F.2d 1104 (11th Cir.), cert. denied, 498 U.S. 991 (1990); Norman v. Ducharme, 871 F.2d 1483 (9th Cir.), cert. denied, 494 U.S. 1031 (1989); see also United States v. Gotay, 844 F.2d 971, 975 (2d Cir. 1988) ("[E]quivocal statement[s] that arguably can be construed as . . . request[s] for counsel" are ambiguous, though "mere mention of an attorney" does not constitute a request for counsel); United States v. Fouche, 833 F.2d 1284, 1287 (9th Cir. 1987) (finding suspect's statement that he "might want to talk to a lawyer or might want to talk to . . . [officials]" to be ambiguous), cert. denied, 486 U.S. 1017 (1988).

115. Towne v. Dugger, 899 F.2d 1104, 1109 (11th Cir.), cert. denied, 498 U.S. 991 (1990).

116. Id.

117. Id.

118. United States v. Mendoza-Cecelia, 963 F.2d 1467, 1472 (11th Cir.) (alteration in original) (quoting Towne, 899 F.2d at 1109), cert. denied, 506 U.S. 964 (1992).

119. Id.

120. United States v. March, 999 F.2d 456, 461 (10th Cir.), cert. denied, 114 S. Ct. 483 (1993).

121. See infra part IV.

122. See infra part IV.

123. Smith v. Illinois, 469 U.S. 91, 95-96 (1984) (per curiam).

124. See United States v. March, 999 F.2d 456 (10th Cir.), cert. denied, 114 S. Ct. 483 (1993); Parker v. Singletary, 974 F.2d 1562 (11th Cir. 1992); United States v. Gotay, 844 F.2d 971 (2d Cir. 1988); United States v. Fouche, 776 F.2d 1398 (9th Cir. 1985), appeal after remand, 833 F.2d 1284 (9th Cir. 1987), cert. denied, 486 U.S. 1017 (1988); United States v. Porter, 764 F.2d 1 (1st Cir.), reh'g denied, 776 F.2d 370 (1st Cir. 1985) (en banc), appeal after remand, 807 F.2d 21 (1st Cir. 1986), cert. denied, 481 U.S. 1048 (1987); Nash v. Estelle, 597 F.2d 513 (5th Cir.) (en banc), cert. denied, 444 U.S. 981 (1979); United States v. Riggs, 537 F.2d 1219 (4th Cir. 1976).

125. Gotay, 844 F.2d at 975 (citing Fouche, 776 F.2d at 1405; United States v. Porter, 776 F.2d 370 (1st Cir. 1985) (en banc), appeal after remand, 807 F.2d 21 (1986), cert. denied, 481 U.S. 1048 (1987); United States v. Cherry, 733 F.2d 1124, 1130-31 (5th Cir. 1984), appeal after remand, 759 F.2d 1196 (5th Cir. 1985), appeal after remand, 794 F.2d 201 (5th Cir. 1986), cert. denied, 479 U.S. 1056 (1987); Nash, 597 F.2d at 517; Riggs, 537 F.2d at 1222).

126. Michigan v. Jackson, 475 U.S. 625 (1986).

127. Id. at 633.

128. Thompson v. Wainwright, 601 F.2d 768, 772 (1979).

129. Towne v. Dugger, 899 F.2d 1104, 1109 (11th Cir.), cert. denied, 498 U.S. 991 (1990); Gotay, 844 F.2d at 975; United States v. Fouche, 833 F.2d 1284, 1287 (9th Cir. 1987), cert. denied, 486 U.S. 1017 (1988)).

130. Nash v. Estelle, 597 F.2d 513 (5th Cir.) (en banc), cert. denied, 444 U.S. 981 (1979). Nash involved a defendant who appealed his murder conviction, claiming that his confession had been improperly admitted because he had invoked his right to an attorney. Id. at 514-20. The dispute arose when the district attorney, who wanted to question Nash, read Nash his Miranda rights and Nash asked "`If I want a lawyer present, I just put down I want him present?'" Id. at 516. Nash went on to state that he "`would like, you know, to have one appointed,'" but when the district attorney informed him that questioning would have to cease until an attorney was obtained, Nash stated that he "`wanted . . . to talk about'" the crime. Id. The district attorney said to Nash: "`[I] can talk about it with you and . . . would like to, but if [Nash] want[ed] a lawyer, well, I am going to have to hold off, I can't talk to you.'" Id. At this point, Nash said "`I would like to have a lawyer, but I'd rather talk to you.'" Id. The reviewing court held that the district attorney had properly clarified Nash's desire to express himself. Id. at 519.

131. Id. at 519.

132. Id. at 517.

133. Id.

134. Id. at 519. The district attorney said: "`Well, I can talk about [the crime] with you and I would like to, but if you want a lawyer, well, I am going to have to hold off . . . .'" Id. He went on to say: "`You got the right to have that lawyer here right now . . . . But if you want to have a lawyer here, well, I am not going to talk to you about it.'" Id.

135. Nash, 597 F.2d at 519. The district attorney asked: "`You would rather talk to me? You do not want to have a layer [sic] here right now?'" Id. "`You are absolutely certain of that?'" Id.

136. Id. "`Well, I don't have the money to hire [an attorney], but I would like, you know, to have one appointed.'" Id.

137. See id. at 517. "[I]t is permissible for the questioning official to make further inquiry . . . . [I]t is sound and fully constitutional police practice to clarify the course the suspect elects to choose." Id.

138. Thompson v. Wainwright, 601 F.2d 768 (1979).

139. Id. at 772. When police read the suspect his rights before interrogating him, the suspect requested to speak with an attorney before answering any questions. Id. at 770. The police officers then told the suspect that if he talked to an attorney "he could not tell his side of the story." Id. at 770 n.2. Following this statement by the police, the suspect made a statement which was later used to help convict him. Id. at 769-70.

140. Id. at 771.

141. Id. at 772.

142. Id. The aim of clarification is "not to persuade but to discern." Id.

143. United States v. Porter, 764 F.2d 1 (1st Cir.), reh'g denied, 776 F.2d 370 (1st Cir. 1985) (en banc), appeal after remand, 807 F.2d 21 (1st Cir. 1986), cert. denied, 481 U.S. 1048 (1987).

144. United States v. Fouche, 833 F.2d 1284, 1288 (9th Cir. 1987) (citing Porter, 764 F.2d at 7), cert. denied, 486 U.S. 1017 (1988).

145. United States v. Fouche, 833 F.2d 1284 (9th Cir. 1987), cert. denied, 486 U.S. 1017 (1988).

146. Id. at 1287 (quoting Nash v. Estelle, 597 F.2d 513, 518 (5th Cir.) (en banc), cert. denied, 444 U.S. 981 (1979)).

147. See United States v. Gotay, 844 F.2d 971, 975 (2d Cir. 1988).

148. Id.

149. Smith v. Illinois, 469 U.S. 91 (1984) (per curiam).

150. See, e.g., People v. Krueger, 412 N.E.2d 537 (Ill. 1980), cert. denied, 451 U.S. 1019 (1981); People v. Kendricks, 459 N.E.2d 1137, 1141 (Ill. App. Dist. 1984).

151. See Krueger, 412 N.E.2d at 540.

152. Kendricks, 459 N.E.2d at 1141.

153. Id. (citing White v. Finkbeiner, 611 F.2d 186, 190 (7th Cir. 1979), cert. granted and judgment vacated, 451 U.S. 1013 (1981)).

154. Id.

155. Krueger, 412 N.E.2d at 540 (citing Miranda v. Arizona, 384 U.S. 436, 486 n.55 (1966)).

156. Kendricks, 459 N.E.2d at 1141 (citing Krueger, 412 N.E.2d at 540).

157. Krueger, 412 N.E.2d at 538.

158. Kendricks, 459 N.E.2d at 1139.

159. Krueger, 412 N.E.2d at 540; Kendricks, 459 N.E.2d at 1141.

160. Smith v. Illinois, 469 U.S. 91, 96 n.3 (1984) (per curiam) (explaining the three-way split in the lower courts regarding ambiguous requests for counsel (citing People v. Superior Court, 542 P.2d 1390, 1394-95 (Cal. 1975), cert. denied, 429 U.S. 816 (1976); Ochoa v. State, 573 S.W.2d 796, 800-01 (Tex. Crim. App. 1978))).

161. See People v. Superior Court, 542 P.2d 1390 (Cal. 1975), cert. denied, 429 U.S. 816 (1976); Ochoa v. State, 573 S.W.2d 796 (Tex. Crim. App. 1978).

162. Thompson v. Wainwright, 601 F.2d 768, 772 (1979).

163. See, e.g., Nash v. Estelle, 597 F.2d 513, 519 (5th Cir.), cert. denied, 444 U.S. 981 (1979).

164. See id. at 521 (Godbold, J., concurring in part and dissenting in part).

165. See supra part IV.A.1.

166. Davis v. United States, 114 S. Ct. 2350, 2352 (1994).

167. Id. at 2352-53.

168. Id. at 2353.

169. Id.

170. Id.

171. Davis, 114 S. Ct. at 2353. The investigators "were told by various people that [Davis] either had admitted committing the crime or had recounted details that clearly indicated his involvement in the crime." Id.

172. Id.

173. Id.

174. Id.

175. Id.

176. Davis, 114 S. Ct. at 2353 (quoting Joint Appendix at 135, Davis v. United States, 114 S. Ct. 2350 (1994) (No. 92-1949)).

177. Id.

178. Id. (quoting Joint Appendix at 137, Davis (No. 92-1949)).

179. Id.

180. Id.

181. Davis, 114 S. Ct. at 2353 (quoting Joint Appendix at 164, Davis (No. 92-1949)).

182. Id.

183. Id. (citing Appendix to Petition for Certiorari at 12a-15a, Davis v. United States, 114 S. Ct. 2350 (1994) (No. 92-1949)).

184. Id. (citing Davis v. United States, 36 M.J. 337, cert. granted, 114 S. Ct. 379 (1993), and aff'd, 114 S. Ct. 2350 (1994).

185. Id.

186. Davis, 114 S. Ct. at 2354.

187. Id. at 2357.

188. See id. at 2352; id. 2357 (Scalia, J., concurring); id. at 2358 (Souter, J., concurring in the judgment).

189. See infra part V.C.1-3.

190. See infra part V.C.1-4.

191. Davis, 114 S. Ct. at 2352-57. The majority opinion was written by Justice O'Connor, and joined by Chief Justice Rehnquist and Justices, Scalia, Kennedy, and Thomas. Id. at 2352.

192. Id. at 2356.

193. Id. at 2358-64 (Souter, J., concurring in the judgment). This concurrence was joined by Justices Blackmun, Stevens, and Ginsburg. Id. at 2358 (Souter, J., concurring in the judgment).

194. Id. at 2364 (Souter, J., concurring in the judgment).

195. See id. at 2352-57.

196. Edwards v. Arizona, 451 U.S. 477 (1981).

197. Davis, 114 S. Ct. at 2354 (citing Michigan v. Tucker, 417 U.S. 433, 443-44 (1974)).

198. Id. at 2355 (quoting McNeil v. Wisconsin, 501 U.S. 171, 176 (1991)).

199. Id. (emphasis added) (quoting Connecticut v. Barrett, 479 U.S. 523, 528 (1987)).

200. Id. (citing Barrett, 479 U.S. at 529). "Invocation of the Miranda right to counsel `requires, at a minimum, some statement that can reasonably be construed . . . to be an expression of a desire for the assistance of an attorney.'" Id. (quoting McNeil, 501 U.S. at 178).

201. Id. (citing McNeil, 501 U.S. at 178).

202. Davis, 114 S. Ct. at 2355.

203. Id.

204. See id. "[A] suspect need not `speak with the discrimination of an Oxford don . . . .'" Id. (quoting id. at 2364 (Souter, J., concurring in the judgment)).

205. Id.

206. Id.

207. Davis, 114 S. Ct. at 2356.

208. Id.

209. Id.

210. Id.

211. Id.

212. Davis, 114 S. Ct. at 2356.

213. Id.

214. Id.

215. Id.

216. Id.

217. Davis, 114 S. Ct. at 2356.

218. Id. at 2357.

219. Id.

220. Id.

221. Id. (Scalia, J., concurring) (citing 18 U.S.C. § 3501 (1988)).

222. Davis, 114 S. Ct. at 2357 (Scalia, J., concurring) (quoting United States v. Alvarez-Sanchez, 114 S. Ct. 1599, 1600 (1994)).

223. Id. (Scalia, J., concurring) (omission in original) (quoting 18 U.S.C. § 3501(a)-(b) (1988)).

224. Id. (Scalia, J., concurring) (citing 18 U.S.C. § 3501(a)-(b) (1988)).

225. Id. (Scalia, J., concurring) (quoting 18 U.S.C. § 3501(b) (1988)).

226. Id. (Scalia, J., concurring). The United States argued that this section did not apply to court-martials. Id. at 2357 n.* (Scalia, J., concurring). Justice Scalia, however, found § 3501 indirectly applicable because Rule 101(b)(1) of the Military Rules of Evidence "requires courts-martial to apply `the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.'" Davis, 114 S. Ct. at 2357 n.* (Scalia, J., concurring) (quoting Mil. R. Evid. 101(b)(1)).

227. Davis, 114 S. Ct. at 2357 n.* (Scalia, J., concurring). Justice Scalia examined the United States's arguments against the use of § 3501. Id. (Scalia, J., concurring). The Government argued that § 3501 was not applicable because court-martials are not considered criminal prosecutions under the Sixth Amendment and, therefore, were not criminal prosecutions under § 3501(a). Id. (Scalia, J., concurring). Justice Scalia responded that the terms may have different meanings in statutes than under the Constitution, and that § 3501 is at least indirectly applicable to courts-martial because Rule 101(b)(1) of the Military Rules of Evidence requires courts-martial to apply "`rules of evidence generally recognized in the trial of criminal cases in the United States district courts.'" Davis, 114 S. Ct. at 2357 n.* (Scalia, J., concurring).

The Government's second argument against § 3501 was that "courts-martial are governed by Article 31 of the Uniform Code of Military Justice, 10 U.S.C. § 831, and Rules 304 and 305 of the Military Rules of Evidence." Davis, 114 S. Ct. at 2357 n.* (Scalia, J., concurring). Justice Scalia responded that although the cited rules "may (though I doubt it) be independent reasons why the confession here should be excluded, . . . they cannot possibly be reasons why § 3