Tomorrow, the United States Supreme Court is set to hear a very interesting criminal procedure / constitutional case - Maryland v. Blake. In play is the validity of a confession obtained after a suspect initially invoked his or her right to remain silent / right to counsel. It is well established that post-invocation, the police may still obtain a confession if a suspect re-initiates the conversation with the cops. The 64,000,000 question is what counts as re-initiation?
According to Goldstein & Howe's excellent description of the case, here , a 17-year old murder suspect immediately asked for a lawyer. But then, cops gave him a copy of the charges, and told him to read it carefully, particularly the part about the possible penalty being DEATH (even though the kid is not eligible for DP due to minority). The cop also said something along the lines of "I bet you wanna talk to us now, huh." The other cop admonished the first one in front of the suspect, telling him the kid already asked for a lawyer. About 30 minutes later, the kid re-initiated the conversation, was Mirandized again, and gave a confession. The trial court threw out the confession, finding it caused the suspect to waive his right. Maryland's highest court upheld that ruling.
At issue is the approach the courts take to police efforts to talk to suspects after the right to counsel is invoked. Per Michigan v. Mosley, the existing brightline rule is that once that invocation occurs, cops cannot re-initiate, only a suspect himself could. Maryland and the Solicitor General are asking the Court to change the inquiry to a totality of circumstances "voluntariness" analysis. But I would think that approach would open a fairly wide door to police deception.
This case is a good example. The cops use a scheme like handing suspect who previously asked for a alwyer a copy of the charges, and throw in the non-existent death penalty. Then, when the suspect waivers, they profusely apologize, make more false promises (e.g., "we'll talk to the DA"), re-Mirandize, and off his goes with his confession. A court looking at this scenario in a context of a "cold" appellate record might well find a way to make that confession "voluntary" under the totality of the circumstances: "The FBI says they can prove it through physics in a nuclear laboratory. Of course they can prove it. Theoretical physics can also prove that an elephant can hang off a cliff with its tail tied to a daisy!" (c)
In recent years, the courts have been willing to give police deception a pass, on the ground that it is a legitimate police technique. But I question whether allowing the police to lie and deceive is likely to produce more truthful confessions. I submit that it is equally as likely that police lies will produce more suspect lies, all made in vain hope to get whatever unrealistic benefit the police throws out. So, rather then have this lier-on-lier contest and a court guessing as to what actually happened months/ years later, why not just stick with the rule not allowing any questioning post invocation of a right to counsel. The rule is easy for the courts to administer and there seems to be no evidence it is not working. Maryland might well have a problem in this particular case, but it is attributable to sloppy police work, not an unworkable legal standard.
Leaving the bright-line rule intact also seems fair in light of the way the courts handle the re-initiation issue when evaluating whether a suspect's own remark amounts to re-initiation. In my experience, even a slightest remark, no matter how innocuous, could be held sufficient to constitute re-initiation of contact with cops. It is only fair the police be held to the same strict standard.
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