Unstilted voluntariness

"When a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering. And noninterrogative interactions with the State do not involve the "inherently compelling pressures," Miranda [v Arizona 384 U.S. 436 (1966)], ..., at 467, that one might reasonably fear could lead to involuntary waivers."

The assumption that a suspect who is not in custody does not experience objectionable pressure to consent to official investigatory measures (interrogation, search) is not one that would be made by many counsel experienced in criminal law. Yet it is an important part of the reasoning of the Court (Scalia J, joined by Roberts CJ, Kennedy, Thomas and Alito JJ) in Montejo v Louisiana [2009] USSC No 07-1529 (26 May 2009), slip op. p 16.

The Court overruled its decision in Michigan v Jackson, 475 U.S. 625 (1986), finding it to be "superfluous" (ibid, p 15). Its objectionable aspect was its presumption that waiver of the right to counsel is invalid if the police have initiated interrogation after the defendant has invoked his right to counsel at arraignment or similar proceeding.

There is no need for that presumption, held the Court in Montejo, because a line of cases that have hitherto been concerned with Fifth Amendment rights is applicable to these Sixth Amendment rights too. These cases are not in question, and are Miranda v Arizona, 384 U.S. 436 (1966), Edwards v Arizona, 451 U.S. 477 (1981), and Minnick v Mississippi, 498 U.S. 146 (1990). They require respectively (1) that a suspect in custody being interrogated must be advised of his right to have a lawyer present, (2) that such interrogation must stop once the Miranda right is invoked and any subsequent purported waiver is invalid, and (3) that there be no subsequent interrogation until counsel is present.

So, without the Jackson rule, it is possible for the police to interrogate the defendant after arraignment if he is given his Miranda right but he does not invoke it. There is, in other words, no need for the police to seek the prior consent of counsel before interrogating the defendant after commencement of proceedings.

The Court's approach to overruling its own decisions is of interest. It asks whether the previous decision proved unworkable, how old it is, what reliance interests are at stake, and whether it was well reasoned. The reliance interests are its costs and benefits. The benefits were put this way (slip op, p 15):

"A bright-line rule like that adopted in Jackson ensures that no fruits of interrogations made possible by badgering-induced involuntary waivers are ever erroneously admitted at trial.

"But without Jackson, how many would be? The answer is few if any. The principal reason is that the Court has already taken substantial other, overlapping measures toward the same end [ie Miranda, Edwards and Minnick, above]."

So, the Court has done away with the need for the police (or any enforcement authority) to advise counsel in advance of an effort to interrogate the defendant, at the same time as it has retained the application of the Miranda, Edwards and Minnick line of cases to only custodial interrogation. Is it realistic to suppose that coercion only exists in custody?