Miranda, Surreptitious Questioning, and the Right to Counsel

Abstract

This article analyzes police surreptitious questioning of a suspect following invocation of the Miranda right to counsel. I conclude that although never addressed by the Supreme Court, this tactic should be permissible. The article focuses on the intersection of the rule established by Illinois v. Perkins, where the Supreme Court held surreptitious questioning of a suspect prior to Miranda invocation does not implicate the Miranda warning and waiver requirement, and the Edwards/Minnick rule, where the court held as per se invalid any Miranda waiver resulting from police re-initiation of questioning following an invocation of the Miranda right to counsel. This brings into focus the question of which of these two rules takes precedence in the post-invocation surreptitious questioning situation? I reach my permissibility conclusion by focusing on the competing objectives of the Miranda right to counsel and the Sixth Amendment “Massiah” right to counsel. This analysis indicates that only the latter rule is intended to protect the suspect’s interest in effective representation by prohibiting all police questioning, whether or not the suspect was aware he was dealing with police. In contrasts, the former is narrowly directed at protecting the suspect from the especially potent inherent coercion associated with custodial interrogation. The Miranda right to counsel is therefore a mechanism to neutralize this coercion, which exists only when the suspect is aware he is being confronted by police. As a result, surreptitious questioning does not produce the necessary inherent coercion to implicate Miranda, and therefore cannot qualify as police exploitation of a suspect who has previously indicated his need for the presence of counsel to offset the coercive pressure of custodial interrogation. The article then shows how the Court’s Dickerson decision bolsters this conclusion. That decision emphasized the need to limit the impact of Miranda to the core concern that motivated the adoption of the ruling: protection from the pressure of incommunicado police interrogation. While acknowledging that post-invocation surreptitious questioning does seem to exploit a suspect who has expressed his desire to deal with police only with assistance of counsel, I conclude that while a close call, this is ultimately a permissible tactic.