Volume 5, Number 1 | July 2010

The Edwards Rule No Longer Applies After a Break in Custody: Maryland v. Shatzer

by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail:  jcall@radford.edu  

            In Edwards v. Arizona (1981),1 a case of great significance to law enforcement, the Supreme Court held that when a suspect undergoing interrogation (or about to undergo interrogation) requests an attorney, the police may no longer interrogate the suspect unless counsel is present or unless the suspect initiates further discussion about the case with the police (and then voluntarily waives the right to counsel).  The rule created by this case is of such great significance to law enforcement that it has come to be referred to (not surprisingly) as the Edwards Rule.

            The Court has imposed some limitations on the scope of the Edwards Rule.  For example, the Court has held that an ambiguous request for counsel is not sufficient to cause the rule to arise.  The suspect must make a clear, unambiguous request for counsel.2  In addition, it must be the suspect, not the suspect’s lawyer, who makes the request to consult counsel.3  The request must be made during or just before interrogation, not during a bail hearing.4   What’s more, the request must be to consult an attorney, not the suspect’s probation officer.5  And in Oregon v. Bradshaw,6 the Court adopted a broad view of “initiating further discussion” by ruling that after Bradshaw had invoked his right to counsel, he initiated further discussion about his case by asking an officer who was transporting him from a court appearance “what is going to happen to me now”?

            While the cases just mentioned have limited the scope of the Edwards Rule, other cases have expanded it.  Although the Edwards case itself contained language that seemed to suggest that the Edwards Rule would be satisfied if the suspect was provided access to counsel, in Minnick v. Mississippi,7 the Court indicated that merely consulting with an attorney (as opposed to the attorney being present during questioning) did not satisfy the Edwards Rule.  In Arizona v. Roberson,8 the Court held that once the suspect has made the request for counsel, the police may not question the suspect in the absence of counsel even if the interrogation pertains to offenses with which the suspect has not yet been charged. 

            These cases demonstrate that in some ways the Court has eroded the significance of the Edwards Rule, but in others it has strengthened the importance of the rule.  The bottom line is that the rule remains an important limitation on the ability of the police to interrogate suspects who have invoked their right to counsel.  Perhaps the greatest significance of the Edwards Rule is that, once a suspect has unambiguously requested counsel, the suspect may no longer waive his right to counsel unless he initiates the conversation.  The police may not simply approach a suspect some period of time after he invokes his right to counsel, advise him of his rights again, obtain a waiver of his rights, and interrogate the suspect.  This option is no longer available to the police after the Edwards Rule has “kicked in.”

            In Maryland v. Shatzer, decided on February 24, 2010, the Court resolved another important issue relating to the Edwards Rule.  In that case, the police had attempted to interrogate Shatzer (who was already in prison on other charges) about an alleged molesting of his 3-year-old son.  On that occasion, Shatzer indicated that he did not want to be questioned without an attorney present, so the investigating officer terminated the interrogation and eventually closed the investigation because of insufficient evidence. 

            More than two years later, additional evidence came to light about the alleged sexual abuse by Shatzer of his son.  As a result, a new investigator attempted to interrogate Shatzer again.  Shatzer remained in prison for the earlier offenses, so the police investigator visited Shatzer in prison.  Although Shatzer expressed surprise that the police were still investigating this incident, he indicated (after being advised of his Miranda rights) that he was willing to talk with the investigator.  Eventually, he agreed to take a polygraph examination and admitted to engaging in sexual acts with his son.

            Shatzer attempted to suppress his admissions by arguing that the investigator violated the Edwards Rule.  He argued that since he had invoked his right to counsel previously and did not initiate this conversation with the investigator, the investigator violated the Edwards Rule by interrogating him in the absence of counsel.

            In an opinion written by Justice Scalia, the Supreme Court indicated that the Edwards Rule is not violated if subsequent interrogation takes place after there is a break in custody.  The Court indicated that the justification for the Edwards Rule is that if the police are permitted to continue to attempt to interrogate a suspect after the suspect has expressed a desire to consult an attorney, they may be able to wear down the suspect and, in effect, coerce him into waiving his right to an attorney.  Once a suspect is released from custody, this opportunity to wear down the suspect no longer exists. 

            The Court also acknowledged that even after a suspect’s release from custody, the coercive impact of custody can continue to have “lingering effects.”  In an effort to provide clarity for law enforcement officers, the Court decided that it was desirable to determine how long after release from custody that its lingering coercive effects continue to operate (although the Court did not have to do this in order to decide the case before it, since there had been more than two years between the two interrogations). 

            The Court decided that fourteen days is the appropriate period of time.  Thus, once a suspect has invoked his right to counsel in custody and is then released, the police may not attempt to interrogate the suspect again, in the absence of counsel, until fourteen days after his release.           

            Shatzer also argued that in his case, there had never been a break in custody, since he remained in prison on other charges after invoking his right to counsel at the first interview concerning the alleged sexual abuse of his son.  Therefore, the Edwards Rule still applied.  The Court rejected this argument also.  The Court reasoned that “lawful imprisonment imposed upon conviction of a crime does not create the coercive pressures identified in Miranda.”  In effect, the Court concluded that sending a prison inmate back to his cell is roughly equivalent to sending an ordinary un-imprisoned suspect home.

            Thus, Shatzer clarifies the law of interrogation in a couple of important ways.  First, it establishes that after the Edwards Rule comes into play with respect to a particular suspect, the police no longer need to be concerned about the rule after the suspect has been released from custody and a period of fourteen days has elapsed.  Second, the case establishes that if the suspect is in prison or jail when the Edwards Rule comes into play, returning the suspect to the general prison or jail population constitutes a release from custody for purposes of the Edwards Rule.

[1] 451 U.S. 477.

[2] Davis v. U.S., 512 U.S. 452 (1994).

[3] Moran v. Burbine, 475 U.S. (1986).

[4] McNeil v. Wisconsin, 501 U.S. 1991).

[5] Fare v. Michael C., 442 U.S. 1979).

[6] 462 U.S. (1983).

[7] 498 U.S. 146 (1990).

[8] 486 U.S. 675 (1988).

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.