Professional Documents
Culture Documents
N. Anthony Palumbo**
Abstract: In the high-stakes context of police custodial interrogation, what
mother knows is best may result in the worst possible situation for her
child. For example, after her son has invoked his Fifth Amendment privilege
to have counsel present during interrogation, a mothers unprovoked
telephone call to the police that her son wants to confess to a murder may
ultimately sacrifice her sons constitutionally protected right against self-
incrimination.
In Van Hook v. Anderson, the Sixth Circuit ruled that a third party, namely
the suspects mother, has the authority to initiate further communications
* NEW ENGLAND LAW REVIEWS contribution to the American Society of Writers on Legal
Subjects (Scribes) 2008-2009 Notes-and-Comments Competition.
** Candidate for Juris Doctor, New England School of Law (2009). B.A., Philosophy,
magna cum laude, University of Central Florida (2005).
61
62 NEW ENGLAND LAW REVIEW [Vol. 43:61
with the police on behalf of the suspect. An analysis of the Supreme Courts
custodial interrogation jurisprudence reveals that the Van Hook courts
holding erodes the suspects Fifth Amendment right to have counsel present
during interrogation.
In contrast to Van Hook, courts should strictly limit the class of third
parties permitted to initiate further police communication to the suspects
attorney. This approach furthers the policy in Edwards to protect the suspect
from police badgering and overreaching in the custodial interrogation
environment. First, a rule only permitting third-party initiations from the
suspects counsel comports with the Supreme Courts emphasis on the
significance attributed to the attorneys presence during custodial
interrogation because the attorney can help to prevent police overreaching in
custodial interrogation. Second, excluding non-lawyer third-party initiations
helps to ensure the preservation of Edwards bright-line prophylactic rule by
reducing ambiguity in police decisions to continue to interrogate a suspect.
INTRODUCTION
It is often the case that mother knows best. Yet, in the context of
police custodial interrogation, mothers knowledge is likely to fail. For
example, after her son has invoked his Fifth Amendment right to have
counsel present during interrogation, 1 a mothers unprovoked telephone
call to the police that her son wants to confess to a murder, although
perhaps accurate and well-intentioned, may sacrifice his constitutionally
guaranteed right to counsel. As such, a mother knows best approach is
likely to be against an accuseds interests. Nonetheless, within the context
of custodial interrogation, the law provides that an attorneys unique legal
training can adequately safeguard the suspects Fifth Amendment rights. 2
The U.S. Supreme Court in Edwards v. Arizona 3 declared a bright-
line prophylactic rule 4 that once an accused invokes his Fifth Amendment
right to have counsel present during custodial interrogation, the police may
not re-interrogate him until his counsel has been made available, unless
the accused himself initiates further communication, exchanges, or
conversations with the police. 5 In subsequent cases, the Supreme Court
developed some of the parameters of what constitutes an initiation under
Edwards 6 in addition to refining the various contexts in which the rule
30. Id. at 481-82 (citing Miranda v. Arizona, 384 U.S. 436, 474 (1966)).
31. Id. at 484-85.
32. See id. (citing Massiah v. United States, 377 U.S. 201 (1964) (holding that the
accuseds Sixth Amendment right to counsel applies when he has been indicted and that this
right is violated when the police deliberately elicit incriminating admissions from the
accused outside of his counsels presence)).
33. See Edwards, 451 U.S. at 485 (citing Rhode Island v. Innis, 446 U.S. 291, 300
(1980) (ruling that under Miranda a suspect has an undisputed right to remain silent without
the threat of interrogation until he has consulted with a lawyer); Fare v. Michael C., 442
U.S. 707, 724 (1979) (holding that minor defendants request to speak with his probation
officer did not constitute an invocation of his Fifth Amendment right to be free from
compelled self-incrimination and that his request did not require suppression of his
subsequent incriminating statements under Miranda); Brewer v. Williams, 430 U.S. 387,
404 (1977) (holding that a suspects response to express or subtle interrogation techniques
should not constitute a valid waiver of his Sixth Amendment counsel rights); Michigan v.
Mosley, 423 U.S. 96, 104 n.10 (1975) (ruling that the request to remain silent and the
request for counsel involve different protections and that the suspect can only halt
interrogation until counsel is present by requesting counsel)).
34. See Edwards, 451 U.S. at 484-85 ([T]he Court has strongly indicated that
additional safeguards are necessary when the accused asks for counsel.).
35. See, e.g., Mosley, 423 U.S. at 100.
36. See Edwards, 451 U.S. at 485.
37. See id. at 484, 486 n.9.
66 NEW ENGLAND LAW REVIEW [Vol. 43:61
initiate. 45 In that spirit, the Court furnished a general standard that the
police are authorized to re-interrogate a suspect under Edwards where a
suspect evince[s] a willingness and a desire for a generalized discussion
about the investigation. 46 Basic questions by the suspect about the
routine incidents of the custodial relationship, such as asking to use the
bathroom or to use the telephone, do not qualify as valid initiations by the
accused. 47 Such mundane inquiries cannot be a valid initiation because no
reasonable officer would interpret them as relating to the investigation. 48
The Supreme Court further extended the procedural Fifth Amendment
protections of Edwards in Arizona v. Roberson. 49 In Roberson, the suspect
invoked his right to counsel during an interrogation about a particular
burglary. 50 Later, another officer, unaware of the suspects previous request
for an attorney, interrogated him about a second burglary. 51 During this
later interrogation, the suspect incriminated himself in the second
burglary. 52 The Court struck the confession and held that the Edwards ban
on police initiation prohibits the police from interrogating a suspect about
another investigation where the suspect has already invoked his right to
counsel for a previous interrogation. 53 According to the Roberson Court,
since the focus in Edwards is on the suspects state of mind during police
interrogation, the suspects request for counsel reflects his belief that he
cannot cope with the inherent pressures of interrogation without the
assistance of counsel. 54 Unless the suspect himself initiates further
communications with the police, this uneasy state of mind is presumed to
persist throughout the interrogation process. 55
Two years later, the Court in Minnick v. Mississippi 56 considered
whether the Edwards rule suppressed a confession when the police
obtained it during an interrogation after the suspect had met with his
requested counsel, but without the presence of the suspects attorney. 57
Striking the confession as invalidly procured, the Supreme Court ruled that
prophylactic rule. 66
First, in reference to the lawyers strategic position in the custodial
interrogation matrix, the Court reiterated Mirandas emphasis that custodial
interrogation subjects the accused to inherently compelling pressures. 67
In this inherently coercive setting the lawyer possesses a unique ability to
protect the suspects Fifth Amendment rights, and thus, the lawyers
presence during the interrogation is indispensable to the protection of the
Fifth Amendment privilege. 68 An attorneys unique ability to further the
suspects rights is useful not only in the context of ensuring police
compliance with permissible methods of interrogation, but it is also useful
to advise the suspect on what type of contactinitiation or otherwise, if
anyhe should have with the police. 69 Second, the bright-line prophylactic
rule set out in Edwards offers the distinct benefit of a clearly defined
standard in which the police, prosecutors, and the courts can assess
confessions obtained in the course of an interrogation. 70 Anything less than
a bright-line rule opens up the possibility for coercive police techniques. 71
While the insistence on a strict bright-line rule may burden law
enforcement and prosecutors from using otherwise highly probative
evidence, the gain in specificity . . . has been thought to outweigh the
burdens that the decision in Miranda imposes. 72
DISCUSSION
his right to request counsel. 97 Van Hook relied on the oft-quoted language
in Edwards 98 that the accused himself must initiate discussions with the
police. 99 A straightforward reading of the text, Van Hook argued, reveals
that a suspect effectuates a waiver of his or her rights when the suspect
and only the suspectinitiates discussion with the police. 100 If the Edwards
bar demands that the police may only re-interrogate the accused once he
directly engages in further contact with them, then a third party cannot
serve as a conduit for the accused to initiate communications with the
police. 101 Thus, Van Hook argued that his mother could not validly convey
his willingness and desire to initiate further discussions with the police. 102
are beyond those contemplated by the general rule in Edwards, 107 the court
went on to say that refining a general rule when faced with unforeseen
circumstances is not imprudent. 108
The court next defined the standard by which a suspect initiates a
discussion to evaluate whether the scope of the Edwards rule encompasses
third-party communications. 109 In United States v. Whaley, the Sixth
Circuit defined an Edwards initiation as a suspect showing a willingness
and a desire to talk generally about his case without police influence. 110
Reasoning that there is nothing inherent in show[ing] a willingness and a
desire that restricts it to direct communication only, the majority
concluded that a suspect can convey an Edwards initiation through a third
party. 111 The only difference between indirect and direct communication to
the police is the number of persons through which the communication
passes. 112 Any problems in accuracy, the court reasoned, can easily be
remedied by the officer asking the accused to confirm what the officer
received from the intermediary. 113 The significant characteristic in
analyzing a communication under the Edwards rule is not that the suspect
conveyed it directly or indirectly to the police; rather, according to the
court, what is important is the impetus for discussion comes from the
suspect himself independent of police provocation. 114
The court additionally discussed how the significant policy concerns
behind Edwards and Miranda are satisfied by allowing initiation through
third-party communications. 115 Given that the Supreme Court attempted to
counteract the possibility of police badgering and overreaching of the
suspect in custodial interrogations, the court reasoned that prohibiting a
suspect from initiating police contact through third-party communication
misplaces the protective emphasis. 116 The constitutional protections in
Miranda and Edwards are concerned specifically with police officials
exerting improper coercion, not with any coercion from the suspects
family members or friends. 117 Moreover, the inherent benefits to
prosecutors and police of a simple yet rigid bright-line rule, which clearly
outlines the legal parameters of admissible custodial interrogations, would
not be lost if third-party communications constitute an Edwards
initiation. 118 The basic restriction as set by Edwards still appliesthat is,
the suspect and not the police must still be the impetus for initiationand
thus, the legal framework remains largely unaltered, allowing prosecutors
and police to easily incorporate this new consideration into their
preexisting practices. 119
Finally, the court emphasized that its ruling set defined standards for
evaluating third-party communications. 120 Significantly, third-party
communications must still adhere to the standard for defining initiation as
set out in Whaley: that the suspect must exhibit a willingness and a desire
to engage in further discussions with the police after he or she has
previously requested counsel. 121 Upon learning from a third party that the
suspect is willing to initiate further conversations with them, the court
emphasized that the police may not begin interrogating a suspect because
of a third-party allegation that the suspect wants to waive his previously
invoked right to counsel. 122 In addition to confirming from the suspect that
he is willing to communicate, the police are required to obtain a sufficient
basis for accepting the third partys communication as valid. 123
using their power of the sword to coerce a suspect into making self-incriminating
statements; it provides no similar protection against third-party cajoling, pleading, or
threatening.).
118. See id. (If we were to prohibit a suspect from initiating a discussion with the police
through a third-party, we would be . . . imposing an undue burden on our criminal-justice
system.).
119. Id. at 422.
120. See id. at 424-25 (explaining that an accused initiates further police contact only
[w]hen the police receive information that a suspect wants to talk; when there is a
sufficient basis for believing its validity; and when the police confirm with the suspect the
validity of that information).
121. See id.
122. Id. at 424.
123. Van Hook, 488 F.3d at 424-25.
124. Since both Judge Merritts and Judge Martins dissents accepted Judge Coles
dissent, this Comment only discusses Judge Coles dissent in detail. See id. at 437-38
(Merritt, J., dissenting); id. at 440-41 (Martin, J., dissenting).
125. See id. at 428, 437, 440.
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 75
for the suspect even if it runs counter to the suspects procedural needs. 136
Consequently, the suspect returns to the inherent pressures within custodial
interrogation which he previously eluded by invoking his right to have
counsel present during interrogation. 137
136. Id.
137. See id. at 433-34.
138. See supra Part I.B.
139. See Minnick v. Mississippi, 498 U.S. 146, 150 (1990); Smith v. Illinois, 469 U.S.
91, 104 (1984); Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983).
140. Edwards v. Arizona, 451 U.S. 477, 484 (1981).
141. See supra notes 67-69 and accompanying text.
142. See supra notes 70-72 and accompanying text.
143. See Miranda v. Arizona, 384 U.S. 436, 474 (1966).
144. See Minnick, 498 U.S. at 150.
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 77
this special ability of the lawyer to help the client preserve his
Fifth Amendment rights once the client becomes enmeshed in
the adversary process, the Court found that the right to have
counsel present at the interrogation is indispensable to the
protection of the Fifth Amendment privilege . . . . 145
In spite of the Courts discussion of the importance of the attorneys
presence for the protection of the suspects Fifth Amendment rights, the
Van Hook court was correct to point out that the Supreme Court has been
silent on the issue of the validity of third-party initiations, much less on the
importance of the attorney in that situation. 146 Furthermore, strictly
speaking, allowing non-attorney third-party initiations does not seem to be
inconsistent with the Courts custodial-interrogation jurisprudence. 147 As
long as the suspects counsel is present when the police re-interrogate him
in response to the non-counsel third-party initiation, there seems to be no
problem. 148 However, this technical reading of the Courts custodial
interrogation jurisprudence ignores the fundamental purpose behind the
Courts per se requirement that the suspects counsel be present: that the
lawyer occupies a critical position in our legal system because of his
unique ability to protect the Fifth Amendment rights of a client undergoing
custodial interrogation. 149 This unique ability serves as the basis for
limiting third-party initiations exclusively to lawyers.
A lawyers skills in protecting the suspect during custodial
interrogation carry over into the realm of third-party initiations. 150 In the
time leading up to interrogation, the lawyer can utilize her specialized
training in the law, in addition to her field experience, to obtain relevant
information regarding her clients involvement in the crime under
investigation. 151 From this basis, the attorney can advise her client on the
best course of action to meet the clients legal needs, including informing
the client of his legal rights and how to best protect them. 152 During the
interrogation, the lawyer insure[s] that statements made in the
145. Fare v. Michael C., 442 U.S. 707, 719 (1979), rehg denied, Fare v. Michael C., 444
U.S. 887 (1979) (quoting Miranda, 384 U.S. at 469).
146. See Van Hook v. Anderson, 488 F.3d 411, 417 (6th Cir. 2007).
147. See id.
148. See, e.g., Minnick, 498 U.S. at 152 ([The lawyers] presence would insure that
statements made in the government-established atmosphere are not the product of
compulsion. (quoting Miranda, 384 U.S. at 466) (internal quotes omitted)).
149. Fare, 442 U.S. at 719 (emphasis added).
150. See JOHN WESLEY HALL, JR., PROFESSIONAL RESPONSIBILITY IN CRIMINAL DEFENSE
PRACTICE 120 (3d ed. 2005).
151. See Fare, 442 U.S. at 721.
152. See HALL, supra note 150, at 125-26, 128-29.
78 NEW ENGLAND LAW REVIEW [Vol. 43:61
153. Minnick, 498 U.S. at 152 (quoting Miranda, 384 U.S. at 466).
154. See HALL, supra note 150, at 130.
155. See Fare, 442 U.S. at 719.
156. See id.
157. Cf. Patterson v. Illinois, 487 U.S. 285, 291 (1988) (Preserving the integrity of an
accuseds choice to communicate with police only through counsel is the essence of
Edwards and its progeny . . . .).
158. Fare, 442 U.S. at 719.
159. Id. However, assuming without conceding that a suspects non-lawyer family
member possesses a unique ability to adequately protect the Fifth Amendment rights of the
suspect, these individuals do not owe a special duty akin to the lawyers ethical duty to
serve her clients interests to the best of her ability, including a duty of confidentiality
solidified in the attorney-client privilege. See HALL, supra note 150, at 118-21, 919-21,
1024.
160. See Minnick v. Mississippi, 498 U.S. 146, 146-47 (1990).
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 79
161. See Van Hook v. Anderson, 488 F.3d 411, 423-24 (6th Cir. 2007); see also id. at 433
(Cole, J., dissenting).
162. Id. at 432 (Cole, J., dissenting).
163. See id. at 432-33 (Cole, J., dissenting).
164. See Van Hook, 488 F.3d at 428 (Cole, J., dissenting). Of course, re-interrogation by
the police may only occur if he initiated the further contact and he knowingly and
intelligently waived his Miranda rights. This hypothetical assumes the suspect waived his
rights. See Oregon v. Bradshaw, 462 U.S. 1039, 1044-45 (1983) (Rehnquist, J., plurality
opinion).
165. See Fare v. Michael C., 442 U.S. 707, 719 (1979).
166. Van Hook, 488 F.3d at 418.
167. Id. at 422.
168. See id. at 424-25.
169. Cf. James P. Fleissner & Amy C. Reeder, Constitutional Criminal Procedure, 51
MERCER L. REV. 1089, 1118-19 (1999) (discussing the potential difficulties of third-party
initiations in United States v. Gonzalez, 183 F.3d 1315 (11th Cir. 1999)). But see Owens v.
Bowersox, 290 F.3d 960, 963-64 (8th Cir. 2002) (concluding that suspect initiated further
communication with the police through his mother even though he never told her to contact
80 NEW ENGLAND LAW REVIEW [Vol. 43:61
177. See Van Hook v. Anderson, 488 F.3d 411, 422 (6th Cir. 2007).
178. See id. at 424-25.
179. See id. at 422.
180. Cf. supra notes 63-71 and accompanying text.
181. Compare Van Hook, 488 F.3d at 423-25 (approving third-party communications),
with Arizona v. Robertson, 486 U.S. 675, 681 (1988) (approving the bright-line rule set out
in Edwards).
182. See Oregon v. Bradshaw, 462 U.S. 1039, 1044-47 (1983) (Rehnquist, J., plurality
opinion).
183. See Davis v. United States, 512 U.S. 452, 459 (1994).
184. See Edwards v. Arizona, 451 U.S. 477, 486 n.9 (1981).
185. See Van Hook, 488 F.3d at 431-33 (Cole, J., dissenting).
186. See id. at 434.
187. See id.
82 NEW ENGLAND LAW REVIEW [Vol. 43:61
188. See generally United States v. Michaud, 268 F.3d 728 (9th Cir. 2001).
189. Van Hook, 488 F.3d at 422 n.7.
190. See id. at 432-33 (Cole, J., dissenting).
191. Minnick v. Mississippi, 498 U.S. 146, 151 (1990).
192. Fare v. Michael C., 442 U.S. 707, 718 (1979).
193. Van Hook, 488 F.3d at 430 (Cole, J., dissenting).
194. See id. at 434 (citing Davis v. United States, 512 U.S. 452, 461 (1994)).
195. Id. at 424; See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
196. See Van Hook, 488 F.3d at 430.
197. Id. (citing Dickerson v. United States, 530 U.S. 428, 435 (2000)).
198. Cf. Smith v. Illinois, 469 U.S. 91, 99 n.8 (1984) ([A]bsent a bright-line rule
requiring an immediate cessation of questioning, an accused may be badgered to speak as
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 83
protect . . . the suspects desire to deal with the police only through
counsel. 199 If a bright-line rule is loosened, the police have more
flexibility to exert coercion over the suspect given the indefinite directive
of the Van Hook court that the police may, as determined by their own
judgment, pursue sufficiently reliable third-party initiations while the
suspect remains in custody. 200 The focus of the prophylactic bright-line rule
in Edwards is on the suspects state of mind. 201 Through his request for
counsel, the suspect has already indicated his uneasiness in dealing with the
police by himself. 202 In this setting, to authorize the police to re-interrogate
a suspect based on a loosened and minimally guided rule is to defeat the
purpose of the Edwards prophylactic bright-line rule. 203
On the other hand, a rule strictly confining third-party initiations to
the suspects attorney preserves the advantages and policies of the
prophylactic bright-line rule in Edwards. 204 First, such a rule provides
clarity and is easy to apply. 205 If only lawyers initiations are valid, any
potential problems in assessing the reliability of third-party initiations by
the police are eliminated. 206 As an authorized agent of the accused with a
duty to zealously represent her client, there is no question as to whether the
attorney speaks on behalf of the accused. 207 Difficulties arising from
ambiguous statements by the suspect are all but erased because the lawyer
can use her legal expertise to ferret out the suspects true intentions and to
accurately relay them to the police. 208 Second, this rule sets firm
parameters for the police as to who can initiate contact on behalf of the
accused. 209 There is little room for police confusion if third-party initiations
are exclusively limited to the suspects counsel. 210 Moreover, given the
reliability of attorney initiations, the police can better avoid judicial
suppression of evidence obtained from interrogation. 211 With attorney
initiations, the police can be almost certain that the accused has initiated the
further contact through his agent 212 and that the accused has knowingly and
intelligently waived his previously invoked right to have counsel present
during interrogation. 213
Finally, and most importantly, restricting third-party initiations to
lawyers upholds the prophylactic aspect of the Edwards rule because it
significantly reduces the possibility of police coercion by protecting the
suspects desire to deal with the police only through counsel. 214 Once the
suspect invokes his right to counsel, the suspect indicates his belief that he
cannot handle the demands of custodial interrogation without legal
counsels assistance. 215 In this way, the suspect has requested his right to
deal with the police only through his counsel. 216 By only permitting
attorney third-party initiations, the suspects Fifth Amendment request to
deal with the police only through counsel is clearly honored. 217 Although a
suspect may revoke this right through a non-lawyer third party, the
advantages of a lawyers unique ability, over a non-lawyers ability, to
protect a suspects Fifth Amendment rights weigh heavily in favor of
allowing only a suspects lawyer to revoke this right. 218 The lawyers
unique ability to protect the suspects Fifth Amendment rights will also
ensure that the suspects best interests are served and that police attempts to
extract illegal confessions will not succeed. 219
CONCLUSION
In Edwards, the Supreme Court ruled that once an accused invokes
his right to counsel, the police may not re-interrogate him until his counsel
is present unless the accused himself initiates further contact with the
police. 220 In the aftermath of Edwards, the Supreme Court and lower courts
have grappled with the intricacies arising out of this bright-line rule. 221
Nonetheless, the Court has reiterated specific legal principles that serve as
conspicuous guideposts for lower courts on this issue. 222 Despite its effort
to adhere to the Supreme Courts custodial interrogation jurisprudence, the