PATTERSON v. ILLINOIS

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ORAL ARGUMENT OF DONALD S. HONCHELL, ESQUIRE ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We will hear arguments next in Number 86-7059, Tyrone Patterson against Illinois.

Very well.

You may proceed whenever you are ready, Mr. Honchell.

Mr. Honchell: Mr. Chief Justice, and may it please the Court, Tyrone Patterson, a 17-year-old youth, was kept in custody for 44 hours without confessing, without seeking to confess, until he was confronted by his indictment, and he asks this Court to apply the safeguards of Edwards versus Arizona and Michigan versus Jackson to protect his constitutional right to counsel, which was automatically applicable upon his indictment.

There is no dispute that that Sixth Amendment right to counsel attached in this case, that it apply automatically upon the indictment, and that it came into existence without request or action or demand by Tyrone.

The question for Your Honors is a narrow one.

What is the protection of that right?

As in Edwards, as in Jackson, the suitable method to safeguard the Sixth Amendment right to counsel is to bar the government from contact with the accused concerning the case until counsel is present unless the accused initiates communication with the authorities, indicating a desire and willingness to discuss the case.

As in Edwards and as in Jackson, this is the only fair way to treat a defendant whose right to counsel has been invoked by the state through the action of indictment.

In this cause--

Unidentified Justice: Do we know, counsel, in this case, what arrangements had been made for his arraignment after the indictment?

Mr. Honchell: --There is no indication--

Unidentified Justice: He was indicted in the morning, I take it, on the 23rd.

Mr. Honchell: --Yes, that's correct.

The police officer returned with the indictment to the police station and that afternoon confronted him with the indictment before the accused had been taken to court, before the accused had been transferred to another facility where he would be housed until taken to court.

It is clear that the accused was about to be removed from the custody of the investigating officials, and that they used that opportunity to confront him with the indictment in order to prompt a statement which had not otherwise been obtained.

Unidentified Justice: Does the record say that an arraignment hearing had been scheduled?

Mr. Honchell: No.

Unidentified Justice: Mr. Honchell, I guess at bottom we are concerned with knowing whether the defendant knowingly and intelligently waived his right to have counsel present for questioning.

Is that right?

Mr. Honchell: I don't believe that is the heart of this case.

The heart of this case is to protect the Sixth Amendment--

Unidentified Justice: I would have thought our concern would be whether he had waived his right to have counsel present.

Mr. Honchell: --The question once the Sixth Amendment--

Unidentified Justice: A defendant can waive his right to have counsel present, can he not?

Mr. Honchell: --Yes.

Yes, he certainly can.

Unidentified Justice: And what information precisely do you think is needed beyond what this defendant was told in order to be able to make that decision?

Mr. Honchell: The question before the Court is not the knowledge that any accused needs to waive Sixth Amendment rights.

Unidentified Justice: Did he need any information beyond what he was given in order to make a knowing and intelligent waiver?

Mr. Honchell: In protecting the Sixth Amendment right to counsel he should not have been approached with any information, including the Miranda warnings, and it would not be the proper protection for this Court to decide the amount of knowledge the accused should obtain for knowing an intelligent Sixth Amendment waiver.

It is not the issue for the Court to decide what additional warnings should be created.

The question is the protection, and it is our assertion that just as this Court decided in Edwards and in Jackson not to decide what knowledge should be used to waive right to counsel.

This Court as well should not decide how much knowledge is appropriate for waiver of counsel.

Rather, to protect from... as a simple and easy surrender of counsel.

The Court should protect it by barring any question by the authorities.

Unidentified Justice: Or affording any opportunity to try to waive?

Mr. Honchell: Exactly.

If the Fifth Amendment right to counsel were under consideration the authorities could secure a waiver by certain knowledge.

Unidentified Justice: Unless he asked for counsel.

Mr. Honchell: Yes.

If the accused asks for counsel it is appropriate to protect it by barring any contact between the accused and the authorities, whether it involves Miranda warnings, super Miranda warnings, any degree of information.

The equivalent protection when the Sixth Amendment right to counsel attaches automatically is equally to forbid providing information to the defendant unless the defendant initiates the interrogation and thereby surrenders the control of the interrogation to the authorities.

Unidentified Justice: Mr. Honchell, would you just indulge Justice O'Connor and me?

Let's assume that in our wrong-headedness we do think that the issue is whether the accused made a conscious and intelligent waiver.

Would you answer the question whether there is any information here that he would have needed to know that was necessary for an intelligent, conscious waiver, that he didn't have?

Mr. Honchell: There has been a wide variety of opinion on the additional warnings beyond Miranda, the way in which they are provided.

The authorities seem to indicate that the accused must realize the significance of an indictment and the corresponding significance of the Sixth Amendment right to counsel, that Miranda does not contain provisions by which the accused becomes familiar, and--

Unidentified Justice: But for the waiver in this incident, for the waiver that would make admissible these confessions, what additional information would he have had to know to make his waiver of counsel at those confessions conscious and intelligent?

Mr. Honchell: --The additional information is difficult to predict as a matter of abstract law.

The additional information must familiarize him that he has a Sixth Amendment right to counsel which attaches automatically.

It is intended to protect him--

Unidentified Justice: He was told that, wasn't he?

He was told that he had a right to counsel.

Mr. Honchell: --He was told... the word "counsel" was used.

He was told he had a right to counsel.

But not through information by which it would become meaningful to him, because the method that was used was not designed to alert the accused to the Sixth Amendment rights to counsel.

It was designed to offset the--

Unidentified Justice: I must say I don't understand what you are saying.

You mean they should have said you have a Sixth Amendment right to counsel instead of just, you have a right to counsel?

He knew that he had a right to have counsel present before the made the confession.

Now, what in addition did he have to know to make the waiver an intelligent one?

Mr. Honchell: --He had to meaningfully know he had a Sixth Amendment right to counsel present because--

Unidentified Justice: What is the difference between meaningfully knowing and knowing?

Mr. Honchell: --Because the warning here used did not convey or express what counsel was intended to do for him after indictment.

Unidentified Justice: So then you say in answer presumably to Justice O'Connor's question and Justice Scalia's question he would have had to be told more about what counsel would do for him after indictment before he could intelligently waive?

Mr. Honchell: That there is a right to counsel who would act on his behalf and represent him.

Unidentified Justice: Well, don't you think this warning gave him the impression that there was a right to counsel who would act on his behalf and represent him?

Mr. Honchell: No, there is nothing in this warning outside pure Miranda.

Miranda was not designed to indicate defense.

Unidentified Justice: Well, okay.

So it should have said, in addition to saying counsel, counsel who would act on your behalf and represent you?

That would have been the magic solution?

Mr. Honchell: That is a possible method, yes.

Unidentified Justice: You think that would have made this case come out differently, in your view?

Mr. Honchell: No, because in our view there should not have been any waiver sought through Miranda warnings or otherwise because once the accused is indicted the Sixth Amendment right to counsel is attached and we advocate the same protection that this Court created for indicted defendants or for defendants benefitting from Sixth Amendment in Jackson and defendants requesting counsel in the Fifth Amendment in Edwards.

In those two cases Your Honors did not say, well, the additional warnings are necessary, or Miranda is enough, or we are going to allow the police to interrogate the defendants and get a warning.

Your Honors said that there can be no interrogation, and that is simply the equivalent protection that this Sixth Amendment right to counsel should provide.

Unidentified Justice: Well, in Edwards we said there could be no interrogation when the defendant has said, I want counsel.

Mr. Honchell: Yes.

Unidentified Justice: But now here nothing equivalent to that happened, did it?

Mr. Honchell: That's correct, but it is not necessary to ask for Sixth Amendment counsel to be protected by it.

It was necessary in Edwards that the accused invoke his right to counsel, to have a right to counsel deserving of protection.

There is no necessity in this case that Mr. Patterson invoke his Sixth Amendment right to counsel.

It attached automatically upon indictment.

The question then becomes--

Unidentified Justice: Mr. Honchell, may I ask you--

Mr. Honchell: --Yes, sir.

Unidentified Justice: --a question about the standard?

Here the officer right after testimony before the grand jury went back, talked to him, told him about the indictment.

Would the case be different in your view if there had been a two or three hour interval, and in that interval there had been a counsel designated by the judge to represent him, but there was not an opportunity between the defendant and the counsel to communicate, and the officer then went and did exactly what he did here, gave exactly the same warning.

Would the case be the same, in your view, or would it be different?

Are we talking... does it make any difference whether counsel has in fact been appointed?

Mr. Honchell: I don't really think there would be any significant difference.

Unidentified Justice: Of course, there would be a very serious ethical difference between the two.

Mr. Honchell: Yes.

Oh, certainly.

Unidentified Justice: But in constitutional terms I suppose the cases would be precisely the same.

Mr. Honchell: It would be precisely the same because the Sixth Amendment counsel arises merely upon being indicted.

It is the other side of the coin when a defendant faces indictment.

Unidentified Justice: From the point of view of the defendant I suppose you would tell him the same thing in either situation and he could waive whether he really has a lawyer or not.

He could say, I don't need to talk to my lawyer.

I can take care of myself.

Mr. Honchell: The protection in either situation would be the same, and it is to bar any effort at getting a waiver, no matter what the warnings are.

There is a bar to getting a waiver.

There is a shield around the accused through which the police cannot reach the defendant to obtain a waiver, whether there is warnings specified or not, and it is this inviolate protection which cannot be penetrated.

The control of the questioning, the control of the interrogation belongs in the hands of the defendant.

Unidentified Justice: Here is a police officer comes to tell him about the indictment.

I suppose they could do that, or not?

Do they have to write him a letter, or what?

Mr. Honchell: There are advantages and disadvantages to using the indictment as a means of reaching the defendant.

Unidentified Justice: Well, the officer comes anyway and tells him about the indictment, and the defendant then says, by the way, I want to make a statement and I don't care to have a lawyer present.

Mr. Honchell: That is a question of initiation, and we would resist that as a means--

Unidentified Justice: Well, the officer came to him.

Mr. Honchell: --In this case he certainly came to him.

He not only told him he was indicted.

He began talking to him, began speaking to him.

When the accused began asking some questions, if the defendant had wanted to speak to the officer there was plenty of opportunity before this occasion to do so.

If the defendant is to be told of the indictment, that should be the sole procedure that occurs.

The accused is informed of the indictment.

There is no follow-up interrogation.

There is no inquiry that it come from a neutral party such as a member of the jail personnel instead of the investigating officer, that the accused not be removed from a cell, taken to a detective bureau, placed within the confines of the police, and thereby put within their control and allowed to be asked about the case or allowed to tell his statement about the case.

The police should not manufacture a way to then claim the defendant initiated the interrogation.

When the Sixth Amendment right to counsel attaches in this case without any effort by the accused, it is automatic, the fair way to preserve and protect that Sixth Amendment counsel is to use the method this Court itself decided was the fair protection in the Edwards case and later on in the Jackson case when the Sixth Amendment was at stake, and using the information here as a means of reaching the defendant, taking the control away from the accused and by-passing that shield that protects him from interrogation resulted in a statement which was quite literally in violation of his right to counsel, and therefore we would ask Your Honors to use in this case where counsel is equally as important if not more important than in Jackson and Edwards the same protective mechanism.

Bar the authorities from reaching the accused unless counsel is provided.

Unidentified Justice: Well, in the Fifth Amendment case, there is pre-charge interrogation, in custody?

Mr. Honchell: Yes.

Unidentified Justice: There is a right to a lawyer, isn't there, right then and there?

Mr. Honchell: Yes.

Unidentified Justice: But it doesn't... it really has to be exercised, doesn't it?

Mr. Honchell: It has to be exercised to be protected, and the police can seek a waiver of it.

This is what Miranda decided.

Unidentified Justice: Yes.

Well, they interrogate him even though... they start to interrogate him and notify him about Miranda, and they can go on and interrogate him unless he says, I want a lawyer.

Mr. Honchell: Yes.

But it puts the control of the interrogation in the hands of the police.

Unidentified Justice: When there is an indictment the right to counsel attaches.

Mr. Honchell: Yes, under the Sixth Amendment.

Unidentified Justice: Well, under the Sixth Amendment.

Mr. Honchell: Yes.

Unidentified Justice: But why shouldn't it have to be exercised, just like in the Fifth Amendment case?

Mr. Honchell: Because it is a much broader right designed for much greater purposes, and it has been the consistent policy of this Court because of its importance to the trial itself that it attach automatically upon indictment, that it extend to pre-trial proceedings because of the harm done to the accused if he surrenders the Sixth Amendment right to counsel.

Unidentified Justice: Yes, but you have been analogizing this to the Edwards situation.

Mr. Honchell: Yes.

Unidentified Justice: And... but of course in Edwards there was an exercise of the right to counsel.

Mr. Honchell: Yes.

Yes.

Unidentified Justice: There was an exercise of it.

The right was already there.

Mr. Honchell: Yes.

Unidentified Justice: And the indictment here means you have a Sixth Amendment right.

Why shouldn't it have to be exercised?

Mr. Honchell: Because before this Court decided to protect a Fifth Amendment right to counsel, it required that it be exercised.

This Court has not required a Sixth Amendment right be invoked.

The Fifth Amendment right which exists nevertheless allows the police to--

Unidentified Justice: Well, Massiah and other cases like that, the lawyer was actually appointed.

Mr. Honchell: --Yes.

Unidentified Justice: Or hired, or something.

Mr. Honchell: Yes, that's true.

Unidentified Justice: And if he had been arraigned, if he been arraigned and he says, I don't want a lawyer--

Mr. Honchell: Yes.

Unidentified Justice: --would you still have a Sixth Amendment right to counsel that you couldn't... that you couldn't violate by going to him?

Mr. Honchell: When the accused is represented by counsel, the police would be barred from seeking him unless he permits the police by contacting the authorities when he invokes the Fifth Amendment right to counsel, or in any application of the Sixth Amendment, because we maintain--

Unidentified Justice: Well, but Justice White's question was what if he is told he has the Sixth Amendment right at arraignment.

He says, no, I don't want a lawyer.

I understand it all.

I don't want a lawyer.

Can the police then go to him, and giving him his Miranda warning, ask him questions.

You can answer that yes or no, surely.

Mr. Honchell: --In that proceeding I think I would indicate yes, he could be approached by the authorities, because by waiving his right to counsel at the arraignment in court, it would be an indication he need not have counsel, but I think if the accused is to be fully protected this Court must examine the extent to which he indicates his forfeiture of counsel.

If he simply indicates I do not want counsel, that would not be an indication that he is willing to discuss the case with the authorities.

If he foregoes his right to counsel and in addition indicates a willingness to discuss the case without counsel, the authorities can then proceed to get the waiver through the particular warnings, but if the accused retains his Sixth Amendment right to counsel by not communicating with the authorities a willingness to discuss the case, then he has not abandoned his Sixth Amendment right.

And so long as he retains that Sixth Amendment protection he retains control over the interrogation.

This is the distinction which appears before and after indictment.

Where should the control over the questioning be placed?

And wherever the control is placed, it indicates the protection that that right to counsel receives.

After indictment it should remain, as it was in Edwards, as it was in Jackson, at the discretion of the accused, and if he undertakes to forego his right to rely on Sixth Amendment counsel, then he can be confronted by the police, but until he does so, he retains his right, and that is a right which must be protected.

So we ask Your Honors to use the protection which was appropriate in Edwards and in Jackson that was not used in this case.

The state here seeks to use Miranda warnings as protection for Sixth Amendment counsel.

We ask Your Honors to restrict Miranda to the moorings in which it arose--

Unidentified Justice: Let me ask you one other question if I may.

Supposing a lawyer had been appointed for him.

Are you telling me that this protection, the Edwards business of having the police initiate the... I mean, the accused initiate the conversation would be adequate protection even if there were a lawyer?

You don't think there would be any duty on the part of the police to notify counsel who had actually been appointed that they were going to go ahead and interrogate the man?

Mr. Honchell: --The police should not be able to interrogate the accused if he is represented by a lawyer.

Unidentified Justice: So you would say there should be greater protection if he has actually had a lawyer appointed for him than if he had not.

Mr. Honchell: It should be the equivalent protection.

If he is represented by a lawyer or he has the right to be represented by a lawyer he cannot be approached by the authorities.

Unidentified Justice: Yes, but see, in the case where a lawyer has been appointed, you seem to be conceding that it would be perfectly permissible for the police to have a situation arise in which the accused initiates some kind of a conversation like this.

Mr. Honchell: Yes.

Unidentified Justice: And they could go ahead and interrogate him without ever telling a lawyer.

Mr. Honchell: Oh, no.

I understand.

No.

In that situation the accused lawyer would need to know of the police action.

It has not been especially decided as a constitutional issue, but in order to protect the Sixth Amendment right to counsel there would be knowledge.

Unidentified Justice: The thing that puzzles me, and it kind of cuts both ways, is why the constitutional protection should change depending on the timing of the interrogation.

Say it is the middle of the trial or something.

Couldn't the police go to the man and say, you know, initiate a conversation just like this, give him his Miranda warnings, tell him he has got a perfect right to have a lawyer there, but create a situation in which he is willing to talk.

Why can't that--

Mr. Honchell: I don't think the protection would change.

It begins at the time of indictment.

It continues throughout the pretrial, trial, and post-trial stages, but at any step of those proceedings the defendant can initiate contact with the authorities, send word that he wishes to speak to the officials.

He would then forego his right to rely upon the Sixth Amendment protection, and if there is counsel introduced in the case, then I think there is the extra protection of advance knowledge to the attorney in the case, but at no time after indictment should the police be allowed to approach the defendant, begin contact through a waiver procedure, and seek a statement.

The protection requires that the accused initiate contact with the police, and that did not happen in this case.

So relying on the constitutional Sixth Amendment right to counsel, relying on its protection in the similar situations of Edwards and Michigan versus Jackson, we urge that Your Honors find denial of Sixth Amendment counsel in this case, and therefore for that violation reverse the judgment of the Illinois Supreme Court.

Thank you very much.

Chief Justice William H. Rehnquist: Thank you, Mr. Honchell.

We will hear now from you, Mr. Donatelli.

ORAL ARGUMENT OF JACK DONATELLI, ESQUIRE ON BEHALF OF THE RESPONDENT

Mr. Donatelli: Mr. Chief Justice, and may it please the Court, Your Honors, the State of Illinois does agree that this case is about what effectuates a knowing and intelligent waiver of the Sixth Amendment right to counsel, and on this issue we maintain that the Miranda warnings must be given their common sense meaning, that if they are given this meaning, that the four Miranda warnings which apprise a suspect of his Fifth Amendment privilege against self-incrimination also by their content necessarily apprise him of his Sixth Amendment right to the assistance of counsel and form the basis on which he can make a knowing and intelligent waiver.

The--

Unidentified Justice: May I ask you the same question I asked your opponent?

Would you take the same position if counsel had in fact been appointed?

Mr. Donatelli: --If counsel is merely appointed by a court, Justice, and the defendant doesn't know about it, I think that plays no role in his... in the waiver.

Unidentified Justice: So in other words, if there were a procedure in Illinois where the judge would, immediately upon the return of an indictment, appoint a lawyer for the man, but there is obviously going to be some delay before they get together, the police could nevertheless still take the indictment, go to the man, and tell him about the indictment, and have a conversation arise like this, and give nothing more than Miranda warnings, and that would be adequate protection?

Mr. Donatelli: I think it would be adequate in this regard.

It certainly doesn't affect the defendant's comprehension of his rights and his election whether to go with counsel or forego it.

So--

Unidentified Justice: So his rights, at least until he has talked to the lawyer and the lawyer has given him some additional advice, his rights after indictment and before indictment in this... in a custodial setting are precisely the same.

Mr. Donatelli: --There--

Unidentified Justice: I mean, there is an additional provision of the Constitution to rely on, but as a practical matter they are exactly the same.

Mr. Donatelli: --That's right.

In terms of the knowing and intelligent waiver of them, I would agree with that point, Your Honor.

Unidentified Justice: What about, say, a week after he had met with the lawyer, and so forth and so on, actually, then he knew that he had a lawyer.

You would still say the same thing, it is okay for the prosecutor to go talk to him?

Mr. Donatelli: If a defendant knew he had a lawyer?

Unidentified Justice: Yes.

Mr. Donatelli: Once the defendant knows he has a lawyer, and thereby somehow evinces a request for a lawyer, then I think the Edwards rule or the Michigan versus Jackson rule would kick in whereby the police could no longer initiate any kind of interrogation or anything like that, but just having counsel appointed by a court, and that knowledge is not known by the defendant, and he has made no assertion that he might want counsel on his own, I think that has no bearing on the validity of his waiver.

Unidentified Justice: Counsel, can the police delay the indictment... or the arraignment for a few hours in order to talk to him a little bit more?

Mr. Donatelli: Could they delay the arraignment?

I am not sure--

Unidentified Justice: Yes, suppose he is indicted at 10:00 in the morning and the judge is available for arraignment any time.

Can they delay the arraignment until about 4:00 in the afternoon while they talk to him with a Miranda warning?

Mr. Donatelli: --I don't see any problem with that, Your Honor, so long as before the arraignment they give him his Miranda warnings, advise him, and he makes a knowing and intelligent choice.

Unidentified Justice: There is no duty to arraign as promptly as possible?

Mr. Donatelli: Well, I know in Illinois the arraignment has to take place within seven days, and a further Edwards response to your questioning of Mr. Honchell, this record is lacking on exactly what... the arraignment procedure.

It does appear that there was no arraignment up until this time, and I can't tell from the record exactly when arraignment did eventually occur.

Unidentified Justice: Well, under the rule you propose there would be an incentive to delay arraignment, would there not?

Mr. Donatelli: In order to... the incentive being that they want to talk to the defendant before he ever talks to counsel or--

Unidentified Justice: Yes.

Mr. Donatelli: --counsel at arraignment?

That could very well be, Your Honor.

I will concede that.

I don't think that's any problem, because no matter whether there is that incentive, whether they delay it or not, you are still only going to have a wavier based on a full comprehension of the right.

Unidentified Justice: Yes, but there is this difference, is there not?

The police have an additional fact that may prompt further conversation.

Namely, they can go in and say, now you have been indicted.

The facts are a little different than they were yesterday.

Isn't that of some significance in perhaps--

Mr. Donatelli: I think that is the kind of information that is sometimes described as, it might be helpful, it might not be helpful to the defendant, but that is not the question--

Unidentified Justice: --I mean, it might be helpful to the police in encouraging him to talk, that this is more serious than it appeared yesterday, because now a grand jury has returned an indictment--

Mr. Donatelli: --That's true, too, but again, that is only knowledge that might be helpful to the police action or the defendant's decision.

The question before this Court, though, is what is the knowledge that is necessary to fully comprehend the right, and I maintain today that that knowledge is not necessary to the waiver of the right.

Unidentified Justice: --Mr. Donatelli, I suppose we have been talking about whether counsel has been appointed.

I suppose you really don't have counsel until you agree to have that person represent you.

Isn't that right?

Mr. Donatelli: That is my position.

Unidentified Justice: I mean, the mere fact that the court has named a counsel, that merely authorizes that individual to come to the defendant and say, will you have me represent you, but the court can't appoint a counsel really.

Mr. Donatelli: I agree with that exactly, and that is certainly the point I was trying to make when I said that knowledge.

Unless there is some affirmative response from the defendant saying I want an attorney, the fact that a court on its own appoints an attorney for him is meaningless to the waiver of the right.

Unidentified Justice: Well, Mr. Donatelli, as things actually work in Cook County, Illinois, would a court ordinarily appoint a counsel for a defendant when the defendant wasn't present at an arraignment?

Mr. Donatelli: That would not happen, to my knowledge, Your Honor.

In Cook County, the offer of counsel is made at arraignment, and I have never heard of any procedure in Illinois or anywhere actually where counsel is appointed for a defendant outside his presence and without his knowledge.

So the State of Illinois' position is that from listening to the Miranda warnings, those four warnings together with the setting within which they are given, these things convey to the defendant what he needs to know about his right to the assistance of counsel, including that this right could be an advantage to him and that if he foregoes his rights it could be of a disadvantage to him.

It is clear from the common sense meaning of the Miranda warnings that by telling him he has a right to counsel, that means he can consult with counsel, he can have counsel present with him at the time, and that he can avail himself of counsel's good professional judgment.

Unidentified Justice: May I ask as a matter of practice before indictment when the warnings are given and he knows all this about getting a lawyer, how often does Cook County actually provide a public defender for a person before he has been indicted?

Does it ever happen?

Mr. Donatelli: How often does--

Unidentified Justice: Yes, during a pre-indictment custodial interrogation the Miranda warning is given saying you are entitled to a lawyer and all this.

Do they ever actually appoint a public defender before an indictment?

Mr. Donatelli: --Your Honor, I don't know that--

Unidentified Justice: So that really... that warning is a little misleading, I think, pre-indictment, isn't it?

How does he get the lawyer?

He says, I want a lawyer.

What happens?

Mr. Donatelli: --At the time of pre-indictment?

Unidentified Justice: Yes.

They just stop questioning him, don't they?

Mr. Donatelli: That is probably true, and either... I think it might be held in a spot where there might be a PD around who could approach the defendant and ask him--

Unidentified Justice: What is a PD?

Mr. Donatelli: --A public defender.

Unidentified Justice: There might be a public defender there, but the police actually go out and find one for him?

Is that the practice?

Mr. Donatelli: That I don't know.

Unidentified Justice: I don't think I've ever heard of--

Mr. Donatelli: If it is in a setting where there might be one around, that could happen, but I would agree with Your Honor that usually it would be that the... just questioning would cease until he gets an attorney.

Now, along with hearing that he has a right to counsel, of course, the defendant also hears that he has a right to silence, and I think the fact that these warnings are given together suggest to him that these rights are very intertwined at the time of custodial interrogation, in other words, that counsel... he has to make a decision about counsel before he does another thing.

He also has to make a decision about remaining silent, and that counsel's importance to him at that time has to do with his right to silence, and indeed--

Unidentified Justice: --I take it when counsel is appointed the police are not told now let him alone until counsel has had a chance to talk with him and find out whether he is wanted to represent the accused?

Mr. Donatelli: --Once counsel is appointed at arraignment, Your Honor, I don't know that there is any mechanism whereby the police are told that they can no longer interrogate him now at their own initiation, but of course Michigan versus Jackson from this Court would tell them that, would tell the police that.

Unidentified Justice: Well, suppose counsel has been appointed and counsel has conferred with him and the police know that.

Then may the police go and--

Mr. Donatelli: I think under the... the rule set out in Edwards and Michigan versus Jackson is that no, the police cannot initiate an interrogation--

Unidentified Justice: --Exactly.

Mr. Donatelli: --once he has evinced a desire to proceed with counsel at all encounters with the police.

The police... only thing the police--

Unidentified Justice: Of course, we don't need to decide that issue here.

Mr. Donatelli: --That is exactly right.

And I would like to address--

Unidentified Justice: I take it at arraignment the judge has the obligation to give a more full explanation of rights than just a Miranda warning.

Would the Constitution be satisfied if a judge gave a Miranda warning at the arraignment and let it go at that?

Mr. Donatelli: --I think so, certainly, Your Honor, if that is enough to tell a defendant about his right in one setting--

Unidentified Justice: Well, he gives the Miranda warning off the card.

Is that enough?

No.

Mr. Donatelli: --I think if that... yes, because that gives him the basis on which he can fully comprehend and know and intelligently waive his right.

Unidentified Justice: You think arraignment proceedings are no more extensive than just reading Miranda rights?

Mr. Donatelli: I think practically speaking you are right, it would involve more than that, but I don't think that the way the judge would inform the defendant of his right to assistance of counsel and asking him if he wants counsel appointed, I don't think he would read the Miranda warnings from him, but I am saying their content... in other words, the judge, I think, would give him the equivalent content, but not by reading those warnings off the card.

It wouldn't be in the nature of a warning, I would assume.

Unidentified Justice: Well, you are really then waiving counsel for trial.

Yes, you'd need more than that.

Mr. Donatelli: At arraignment?

I see the distinction there.

You are right.

At arraignment that would be a Faretta type waiver, you are right, so the Miranda warnings wouldn't work.

Unidentified Justice: Yes.

Mr. Donatelli: That clarification is very important.

You are right.

The Miranda warnings are what conveys the knowledge and comprehension of the right at the custodial interrogation.

Unidentified Justice: Yes.

So then there is again the incentive to delay arraignment if the police want further interrogation.

Mr. Donatelli: I don't think that is any problem, Your Honor, and the reason is, is that our criminal justice system has a goal of having the most accurate and reliable convictions.

I think confessions from a defendant are the best evidence and best assurance that the judgment of guilty is indeed accurate and truthful.

Unidentified Justice: And I suppose you would think it would be proper for the prosecutor, not just the police, to go in and tell the defendant about the indictment and let him have a chat with the defendant.

That is perfectly all right, too, isn't it?

Mr. Donatelli: Yes.

Unidentified Justice: Let the lawyer do it, because he is probably professionally better trained even than the police, and he is probably better able to get to the bottom of the true facts.

Mr. Donatelli: I would agree with that.

Unidentified Justice: That would be an approved procedure, to have the lawyer go to his adversary without counsel and talk with him.

Mr. Donatelli: So long as there has been no request for counsel, yes, Your Honor, I would agree with that.

Unidentified Justice: I suppose the police can always try to play games with this.

If we hold the way petitioner wants I suppose you would have to say that there would be an incentive on the part of the police to delay an indictment.

Mr. Donatelli: That is exactly true.

There are many stages, you are right, Your Honor, where a delay could be made, whether it is arraignment or indictment, in order to be able to talk with a defendant--

Unidentified Justice: In order to be able to talk to him.

Mr. Donatelli: --before he has accepted counsel or requested counsel.

There is no problem with that, I think, so long as no request is made--

Unidentified Justice: Isn't there some limit on the period time they can hold a man in custody without charging him?

Mr. Donatelli: --Well, certainly there is that.

Unidentified Justice: They can't just delay indefinitely.

Mr. Donatelli: That is exactly right, of course.

Unidentified Justice: And I think you said earlier arraignment has to be, what, within seven days?

Mr. Donatelli: In Illinois.

That's my understanding, Your Honor.

But... so I think not only do the Miranda warnings convey everything he needs to know at custodial interrogation in order to effectuate a valid waiver, but I think what petitioner's position misses is that Miranda, while it serves the Fifth Amendment, it also impacts on the Sixth Amendment concerns, and I think the Miranda opinion itself recognized that.

In the opinion written by Chief Justice Earl Warren, this Court explained that these warnings are good not just for the privilege against self-incrimination, but they come with residual benefits, and it talked about some of those residual benefits.

So the Miranda opinion itself is replete with such references to Sixth Amendment concerns as counsel's presence in helping to maintain a fair balance between the state and the individual and making available the advice and good professional judgment of counsel, and referring to the custodial interrogation as an adversarial encounter, so I think petitioner's position sells Miranda short by saying it merely protects Fifth Amendment concerns.

That may be the purpose of the warning, but even in Miranda this Court noted that the impact was greater than that.

I would also like to address what Mr. Honchell does think is the issue today, and that is that no interrogation could take place just by the filing of the indictment.

I think that would not be a good result.

It serves a function, as I explained a little bit earlier, in the situation where there is a request for counsel.

Then it is a good rule, because now we know that the defendant has asked to proceed in all encounters with the police only with the help of counsel.

But as I said, our system of justice, criminal justice has a great interest in securing confessions because they make... they are the best evidence of a reliable guilty verdict, so that police should be able to approach a defendant and talk to him about the case with the intention of using his own words against him in this case even after indictment.

I think it helps the criminal justice system because it means the prosecution can come forward not only with an adequate case or with a good case but with the best case it has.

So that rule goes way too far and exacts a cost from the criminal justice system, I think, that is unwarranted.

One last point I would like to bring up, I would just like to address, in our brief we raised an alternative ground for affirmance.

Our position is that the statements were volunteered, so that there is no Sixth Amendment right... no Sixth Amendment waiver issue here at all.

What I would like to say about it is, the response to Mr. Honchell's argument in the reply brief that that issue is waived, in support of his argument, he points out that that issue is not contained in the opinion of the appellate court or the Illinois Supreme Court.

Well, as far as that goes, he is correct, but I still think it is disingenuous for him to raise the issue, since the state's brief raised this argument on direct appeal, and Mr. Honchell was counsel for defendant on direct appeal, and he responded to that argument in his reply brief on Page 2, and on Pages 6 through 7 he argued his response and that the appellate court just didn't address the issue because they affirmed on other grounds.

We again re-raised that issue in the Illinois Supreme Court.

Again it was not resolved because the issue was affirmed... the case was affirmed on other grounds.

So we have preserved that issue.

Therefore, Your Honors, we ask this Court to affirm the judgment of the Illinois Supreme Court.

Chief Justice William H. Rehnquist: Thank you, Mr. Donatelli.

We will hear now from you, Mr. Pincus.

ORAL ARGUMENT OF ANDREW J. PINCUS, ESQUIRE ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE SUPPORTING RESPONDENT

Mr. Pincus: Thank you, Mr. Chief Justice, and may it please the Court, we take as our starting point in ascertaining whether the Miranda warning supplied petitioner with the information that he needed for a knowing waiver of his Sixth Amendment right to counsel at the pre-trial interrogation.

The test that this Court has announced several times in evaluating the knowing standard of a waiver, whether the suspect knew the nature of the right being abandoned and the consequences of the decision to abandon it.

Taking the first part of that test, Miranda warnings expressly convey to petitioner the substance of his Sixth Amendment right.

They told him that he had a right to the assistance of counsel at the interrogation, and we think that is the right itself, and it is hard to argue that the warnings do not convey that knowledge of the right.

The Miranda warnings also inform petitioner the consequences of his decision to waive that right, first, that he would not have the assistance of a lawyer in deciding whether to speak or to stand on his right to remain silent, and second, that if he chose to respond to the questions that he would run the risk that his uncounselled answered would create incriminating evidence that could be introduced against him at trial, and we think again that is the consequence of the decision--

Unidentified Justice: What is the Sixth Amendment right to counsel?

Is it the right to counsel at trial, or what?

Mr. Pincus: --Well, the Court has held that it is a right that attaches on indictment and that applies in various critical pretrial proceedings.

Unidentified Justice: Well, I know, but it is a right to have counsel at trial, isn't it?

Mr. Pincus: Well, at trial and at... the Court has held it also encompasses various pretrial--

Unidentified Justice: Well, are you suggesting that the waiver that was given here waived his right to counsel at trial?

Mr. Pincus: --No, we think that all it waived was--

Unidentified Justice: What did it waive?

Mr. Pincus: --It waived his right to counsel at the interrogation that was about to take place.

Unidentified Justice: And it didn't waive anything else?

Mr. Pincus: No, it was limited--

Unidentified Justice: It's a waiver but it isn't?

Mr. Pincus: --Well, it is a waiver of the right to counsel at this pretrial proceeding.

The Court has made clear that the right to counsel attaches, in addition to a general right at trial, it is a right that comes into play in critical pretrial proceedings such as interrogation--

Unidentified Justice: Why isn't this good to waive counsel at trial?

Mr. Pincus: --Well, we don't think it conveyed to him the knowledge of what the assistance of counsel embodies at trial.

That is obviously the assistance of counsel in a variety of other procedures that take place at trial, cross examination, the rules of evidence, and things like that, and we think that, as the Court indicated in Faretta, there would have to be a colloquy or a warning that gives the defendant the information about what is going to happen at trial so he can knowingly decide whether he wants a lawyer to assist him with those procedures.

Unidentified Justice: More important, he wasn't asked to waive counsel at trial here.

He was asked to waive counsel at this immediate interview.

Mr. Pincus: Well, as I tried to indicate before, I think you are right, Justice Scalia, that it was clear that this was just a limited--

Unidentified Justice: Supposing this had been a lineup after post-indictment lineup, and he gave similar warnings, said, you don't have to have your lawyer there, we would like to have the lineup right away.

A lawyer has been appointed for him.

Could he waive that Sixth Amendment right to have his lawyer attend the lineup by just response to the... in jail response to questions like these?

Mr. Pincus: --Well, we think these warnings wouldn't be adequate because they refer to--

Unidentified Justice: Just change them, say we are about to have a lineup and so forth, and we want you to know you have a right to have your lawyer there, would you like to go ahead without it?

Would that be sufficient?

Mr. Pincus: --Yes, we think that that would be sufficient.

Unidentified Justice: Without giving notice to the lawyer, that would be perfectly all right?

Mr. Pincus: Right.

We think that the Sixth Amendment gives the right to the defendant, not to the lawyer, and it is the defendant's assertion of his right to counsel that controls, that controls... that controlled in Michigan against Jackson and that we think controls in this case, too.

If the defendant--

Unidentified Justice: Well, Mr. Pincus, even if a lawyer has been appointed, you think there is no obligation whatever on the part of the police to let the lawyer know they are going to be approaching the defendant with a request for waiver of presence during the lineup?

Mr. Pincus: --Well, I assumed the question was that the lawyer had not been appointed, and an arraignment or some other--

Unidentified Justice: No, the lawyer has been appointed.

No, I said the lawyer has been appointed.

Mr. Pincus: --But not as the result of any request by the defendant.

Unidentified Justice: Well, he accepted the lawyer--

Mr. Pincus: If it is the result--

Unidentified Justice: --but then as the proceeding... critical stage number 2 is a lineup.

We have already questioned him, but we now have a lineup.

You go to the man without telling the lawyer and say, you have a right to have the lawyer there, but would you be willing to waive it?

Mr. Pincus: --I think I misunderstood your-question Justice Stevens.

We think that if the defendant evidences an attempt to proceed with counsel either by requesting counsel at the arraignment or having his own counsel there by his side at the arraignment, but then the Edwards/Michigan against Jackson type of rule would apply, and the police could not--

Unidentified Justice: Supposing the conversation develops this way.

They go to him and say, we have scheduled a lineup.

So they initiate the... they certainly have a right to tell him that, just like they told him here, you have been indicted.

And then they go ahead, then proceed and say, we can go ahead without counsel if you are willing to do it.

You, of course, realize you have a right to have your lawyer there.

Would that be consistent with the Sixth Amendment protection if they don't tell the lawyer?

Mr. Pincus: --Well, I think the question there would be whether there had been an initiation, whether who had... who had approached whom, and I think--

Unidentified Justice: I am saying they initiated precisely as it is here.

They told him about the indictment here.

They tell him about the lineup in my hypothetical.

Why is that different?

Mr. Pincus: --Well, the difference... well, the difference with this case is that in the hypothetical the defendant had asserted his right to counsel, so then there is a question of who initiated the interrogation.

We think that petitioner is quite wrong in saying that Michigan against Jackson should be transformed into a rule that takes effect upon the assertion of the right by the defendant into a rule that takes effect upon the attachment of Sixth Amendment rights in the air without any decision by the defendant that he wants to proceed with the assistance of counsel.

Unidentified Justice: Well, supposing they tell him, look, we, can either go ahead with the lineup right now, because we've got these people here, or we can tell your lawyer about it and arrange it at a time that is convenient for him, what do you want to do, and he says, I will go ahead without.

Can they do that without telling his lawyer?

Mr. Pincus: Well, again, Your Honor, that is not this case.

Unidentified Justice: Is there any constitutional objection to their doing that without telling his lawyer?

Mr. Pincus: Well, I think the question would be who initiated the inquiry, and--

Unidentified Justice: Well, I have given you the facts.

They initiate just like they did in this case.

Mr. Pincus: --Well, Your Honor, again, it is not the facts of this case, because in that case the defendant has already, as in Michigan against Jackson, asserted that he wants to proceed with counsel.

This defendant has not... did not ever assert that he wanted to proceed with counsel.

Unidentified Justice: Maybe the man never said a word at all.

He went in court, they appointed a lawyer for him, and--

Mr. Pincus: Well, he evidenced that he wanted to proceed with counsel in that way, by adopting that lawyer as his lawyer.

Otherwise, the lawyer couldn't represent him.

In this case we think it's fundamentally different, and in fact the Court--

Unidentified Justice: --So this case would be different if there had been an arraignment?

You acknowledge that had there been an arraignment and then they approached him for this interrogation, it would be no good?

Mr. Pincus: --If there had been an arraignment and he had requested counsel or--

Unidentified Justice: He had accepted counsel appointed during the arraignment.

Mr. Pincus: --Yes, then it would be controlled by Michigan against Jackson.

We think the difference here is that Michigan against Jackson doesn't apply, and the Court in Michigan against Jackson said in fact that the request for counsel at the arraignment was, and I am quoting,

"an extremely important fact in considering the validity of the waiver. "

And we think that is the important fact that is missing here, and that is what changes the case.

The defendant has not made the choice to be represented by counsel, and what underlies Michigan against Jackson and Edwards against Arizona, the two prophylactic rules, is the fear that the police will try and get the defendant by badgering him to change his mind where he had previously asserted his right to counsel and agree to be interrogated and what the court said is, we are not going to let the police initiate once the defendant has made his choice, and that is all we are asking for here.

Unidentified Justice: Well, Mr. Pincus, what about this point of possible manipulation of arraignment time to allow more room for the police to approach the defendant if we were to adopt your rule?

Mr. Pincus: Well, Your Honor, the prosecution controls both for the time of indictment and for the time of arraignment, so we don't think that really it's going to make... moving the time back to indictment will just introduce, as Justice Scalia pointed out, the possibility that the indictment could be pushed back.

There are time limits on both.

We think there are time limits on arraignment in Illinois, and we think... and in most systems, and we think there is control... there is some control, and either rule will not completely bar the government from doing--

Unidentified Justice: But if we do rule for you, do you think it is justifiable to delay arraignment in the hopes that a Miranda warning will elicit this kind of confession?

Mr. Pincus: --Well, Your Honor, we don't think that the Miranda warning elicits the confession, but I think that the prosecutor could delay the time of arraignment, but it doesn't change--

Unidentified Justice: And do you think that is desirable and sound policy?

Mr. Pincus: --Well, I think it depends upon the particular case.

There is certainly nothing wrong with the prosecutor telling the defendant his rights and seeing whether the defendant is willing to talk to him.

The warnings give, unlike what counsel for petitioner said, the warnings themselves give the defendant control over the interrogation.

If he asserts his right to counsel, he will be--

Unidentified Justice: Yes, but the fact is different when he... it is warnings plus indictment in this situation.

Before it is just warnings.

Is that a difference?

Or maybe you think it isn't.

Mr. Pincus: --Well, we don't think he has to be told that he was indicted in order for there to be a valid waiver.

The officers can tell him, and we don't think that that fact changes the calculus, as we discuss in our brief, in any meaningful way.

As I was saying, Justice Kennedy, we think the control is always in the hands of the defendant.

He is given the warnings.

He is told of his rights, and he can decide.

If he wants counsel then he knows he has a right to it and he can stop the interrogation right then and there until he has counsel, and we think that really disposes of any problem, because the defendant has control over the proceeding.

Unidentified Justice: The defendant in a prison can stop interrogation?

Mr. Pincus: He can--

Unidentified Justice: Can he?

Mr. Pincus: --Your Honor, that is what... he may not be able to physically stop it, but he can prevent--

Unidentified Justice: That is what I... that is what I thought.

Mr. Pincus: --the... any statements from being introduced against him, so he can protect himself effectively.

Thank you, Mr. Chief Justice.

Chief Justice William H. Rehnquist: Thank you, Mr. Pincus.

Mr. Honchell, you have six minutes remaining.

ORAL ARGUMENT OF DONALD S. HONCHELL, ESQUIRE ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Honchell: Thank you, Your Honor.

The facts of this case indicate quite vividly the need for the protection and the damage that can happen if this Court allows an indicted defendant to be approached by the authorities.

This is a 17-year-old youth who was kept for 44 hours without being indicted, without going to court, without having a lawyer appointed for him, without having hired a lawyer, and during that time the police allowed him to sit.

After keeping him for 44 hours they decided that they were going to get an indictment against him, and they still didn't take him to court and they still didn't transfer him out of their custody.

They used the form of Miranda warnings.

Miranda warnings--

Unidentified Justice: If those are problems, I mean, if that length of time is a problem, that is surely a separate one.

I mean, maybe we should have a two-hour limit on how long you can hold before indictment, or how long after indictment you can hold before arraignment, but what does that have to do with whether there was a voluntary waiver of counsel here?

Mr. Honchell: --What we do have to protect the defendant is that after he is indicted, he is not to be approached by the authorities when they want to use the indictment to get a statement from him.

If the authorities seek an indictment, they must respect the Sixth Amendment right to counsel.

They did in this case get an indictment.

They did not in this case respect his Sixth Amendment right to counsel, and we are in that very vulnerable period when the accused is protected by the automatic attachment of the Sixth Amendment right to counsel, and before he reaches Court where he can meet with counsel or have counsel appointed, and it is in this narrow period of time when we are asking Your Honors to protect a Sixth Amendment right to counsel.

Unidentified Justice: He has a right to counsel before the indictment, of course, too, right?

Mr. Honchell: Yes, but that can be overcome when the police approach him and want to discuss the case with him.

And that is permissible because he has a Fifth Amendment right which this Court established to protect in custodial settings the right against self-incrimination, and in providing that right this Court provided the waiver, but the state is not seeking a waiver of the Fifth Amendment right.

They are seeking a waiver of the Sixth Amendment right.

That is established in the Constitution.

It is effective only if it can protect the defendant at trial from easy surrender.

Unidentified Justice: Fifth Amendment right is not established in the Constitution?

Mr. Honchell: Not the Fifth Amendment right to counsel.

That was created by this Court in Miranda to protect the right against self-incrimination, but it is not intended to protect the Sixth Amendment right.

Unidentified Justice: We just sort of made that up.

That is not in the constitution at all?

Mr. Honchell: There is no constitutional right in the Fifth Amendment to counsel, but Miranda said we are going to apply a right to counsel to protect against self-incrimination, and we are going to allow it to be waived when the police want to use this procedure of warnings.

But this Court did not intend that that right be the equivalent of the Sixth Amendment right.

This Court did not intend that that waiver be the equivalent of waiver of the Sixth Amendment right.

When Your Honors decided to provide a waiver mechanism in Jackson and in Miranda... I'm sorry, in Edwards versus Arizona, Your Honors decided that the sensible way to protect that right, because it was so crucial, becuase it was not the equivalent of a pretrial Fifth Amendment right to counsel or a pretrial Miranda right, that the greater the right required greater protection.

And it has been discussed here how that right can be avoided, that you can secure an indictment.

The police now want to get a statement against the defendant, although our authorities slow that there is less need to interrogate after there are formal charges than before because there is some indicia of evidence against the defendant, and they are going to use an indictment to prod a statement from the defendant, so they are going to use it as a weapon, and they are going to use it despite the fact that that very indictment has extended Sixth Amendment protection, and it is this very method that was used in this case when the accused had been detained for such a long period of time, when he was not protected by counsel, under the Sixth Amendment, which has been consistently viewed as automatically applicable, that in this situation the control must be in the hands of the defendant.

The defendant can't control when he is going to be indicted.

The defendant can't control when he is going to be arraigned.

The defendant cannot control when he gets counsel, or how soon he will get counsel, or how much he would be able to confer with counsel.

Unidentified Justice: What if at the arraignment the judge says, you have the right to counsel, and tells him all about it, now, if you want counsel, speak up, and he doesn't say a word.

Do you think that counsel is going to be appointed?

Mr. Honchell: No.

I would assume counsel would not be appointed.

Unidentified Justice: So you have to exercise your Sixth Amendment right to counsel.

Mr. Honchell: No--

Unidentified Justice: There you are at arraignment, here this right is attached, and if you want counsel, you have to exercise it, you have to ask for it.

Mr. Honchell: --You would indeed have the right to counsel.

You would not have particular counsel appointed.

Unidentified Justice: Can you get a Faretta waiver in Illinois by just being silent?

He tenders you counsel and you say nothing, the judge won't appoint a lawyer for you?

Mr. Honchell: At arraignment I don't know if a counsel would be appointed.

Unidentified Justice: How do you stand--

Mr. Honchell: At the trial he would be appointed.

Unidentified Justice: --How do you stand moot in Illinois?

You stand moot and don't say a mumbling word.

Mr. Honchell: Yes.

Unidentified Justice: And the judge appoints a lawyer.

Mr. Honchell: Yes.

Unidentified Justice: Isn't that right?

Mr. Honchell: I assume for purposes of the arraignment yes.

But nevertheless the right to counsel--

Unidentified Justice: For purposes of the whole proceeding unless there is a Faretta type waiver.

Mr. Honchell: --Yes.

Unidentified Justice: Isn't that true?

Mr. Honchell: Yes.

Yes.

So to protect the right we ask Your Honors to apply Michigan versus Jackson and Edwards versus Arizona.

Chief Justice William H. Rehnquist: Thank you, Mr. Honchell.

The case is submitted.