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Interrogating A Suspect After Previous Invocation of Counsel: “Lawyering Up” Revisted

The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” Miranda protects this right in the context of custodial interrogation by requiring the police to inform suspects of their right to counsel. If the right to counsel is asserted, Edwards v. Arizona mandates that the police cease all questioning until counsel is present or the suspect voluntarily initiates further conversation

As viewers of television crime dramas know, before questioning a suspect in custody, police must warn him that he has the right to speak to an attorney and to have an attorney present during questioning. Less well known is that in 1981, 15 years after its decision in Miranda vs. Arizona, the Supreme Court ruled that once a suspect asks for a lawyer, all interrogation must stop — and can’t be resumed even if the suspect subsequently waives his rights. If there is to be further conversation in the lawyer’s absence, it must be initiated by the suspect.

This additional protection makes it harder for police to pressure a suspect into talking. But how long does it last? Last week, the Supreme Court considered a case in which almost three years elapsed between a suspect’s request for a lawyer and a second session with police at which he waived his right to counsel.

It used to be that once a suspect invoked the right to an attorney in an interrogation, officers were prohibited from approaching the suspect and questioning her again.  The only way to approach that suspect was when the suspect had consulted an attorney or the suspect approached the officers and reinitiated contact. Edwards v. Arizona 451 U.S. 477

Recently, the U.S. Supreme Court in Maryland v. Shatzer 130 S.Ct. 1213, reviewed the Edwards rule and found it unrealistic.  The Court set a bright line rule for when officers can approach a suspect who previously invoked the right to counsel.

The Court stated that officers must wait fourteen (14) days after an invocation of the right to an attorney before approaching a suspect to again attempt to question her.  There must also be a break from custody for those 14 Days.   Maryland v. Shatzer


Shatzer is a convicted child molester.  Shatzer was serving a sentence in prison for child molest when detectives developed information that Shatzer  molested his three year-old son.  A detective went to the prison where Shatzer was housed, read Shatzer his Miranda warnings and attempted to question Shatzer.  Shatzer invoked his right to an attorney.  The case was closed.

Three years later, detectives reinterviewed the victim and again traveled to prison to interview Shatzer.  Shatzer was again provided his Miranda warnings and was interviewed for 30 minutes. Shatzer never referred to his prior invocation.  Shatzer made some admissions and agreed to a polygraph examination.  Three days later investigators again Mirandized Shatzer and administered the polygraph.  Upon telling Shatzer he had failed, Shatzer made further damaging admissions and then invoked his right to counsel.  The interview was terminated.  Shatzer moved to suppress his statements at trial, that motion was denied and Shatzer was convicted. 

Shatzer Appeals 

Shatzer moved to suppress his statements as being violative of the Edwards v. Arizona rule, that held an invocation of the right to an attorney was an invocation forever more unless an attorney was brought in for the suspect and consulted or the suspect initiated the subsequent interrogation.  The assumption in Edwards is that subsequent contact by officers is by its very nature coercive based upon continued custody or police pressure.


The U.S. Supreme Court acknowledged that state courts, including the California Supreme Court in People v. Storm (2002) 28 Cal.4th 1007, 1023-1024 (Holding a two day break sufficient), have found the Edwards rule inapplicable assuming there is a break in custodial status. 

The Court then set out to decide how long a break in custody is long enough to insure that the suspect is not coerced into a subsequent Miranda waiver and statement. 

14 Days

The Court held that officers must wait 14 fourteen days to approach a suspect who invokes his right to an attorney during an interrogation.  Further, the Court held that the suspect must be free of custody for that amount of time for the subsequent waiver to be valid.  If the suspect remains in custody for those 14 days he may not be questioned. 

Shatzer Was in Prison

The Court held that generally being in prison was a different status then being taken into an interrogation room and being questioned. Shatzer was able to return to his normal prison life after his interrogation.   The Court held that under those circumstances the coercive nature of a subsequent interrogation was diminished as though Shatzer was released from custody. Thus, Shatzer could be reinterviewed as more than 14 days had passed between police contact which was defined as Miranda custody and general prison custody. 

Credit is given to Third Degree Communications, Inc for portions of this article.

A Denver, Colorado Crminal Defense Procedural Specialist

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H. Michael Steinberg Esq.
Attorney and Counselor at Law
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