TYRONE PATTERSON, PETITIONER V. STATE OF ILLINOIS No. 86-7059 In the Supreme Court of the United States October Term, 1987 On Writ of Certiorari to the Supreme Court of Illinois Brief for the United States as Amicus Curiae Supporting Respondent TABLE OF CONTENTS Question Presented Interest of the United States Statement Summary of argument Argument: Petitioner's statements during the post-indictment interrogations were properly admitted into evidence A. The Miranda warnings provide all the information needed to make a knowing waiver of the Sixth Amendment right to counsel during post-indictment interrogation B. Nothing about the Sixth Amendment right to counsel at interrogation justifies a waiver procedure more elaborate than that required by this Court's decision in Miranda Conclusion QUESTION PRESENTED Whether petitioner's voluntary statements should be suppressed on the ground that petitioner did not effectively waive his Sixth Amendment right to the assistance of counsel at the post-indictment interrogations. INTEREST OF THE UNITED STATES The issue in this case is whether the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), supply a suspect with the information needed for an effective waiver of the Sixth Amendment right to the assistance of counsel for purposes of post-indictment interrogation. The Court's analysis and resolution of the question whether additional information must be provided to suspects in this setting is likely to have an effect upon the conduct of interrogations by federal law enforcement officers and the admission of voluntary statements in federal prosecutions. STATEMENT 1. Early in the morning of August 21, 1983, petitioner became involved in a gang fight at the 1623 Club in Evanston, Illinois. The fight pitted several members of the Vice Lords and an allied gang -- David Thomas, Carl Harmon, Juan McCune, and petitioner -- against members of a rival gang, the Black Mobsters. After the fight, the Vice Lords went to Thomas's house. Approximately ten minutes after they arrived, James Kevin Jackson, a member of the Black Mobsters, drove by Thomas's house. Thomas, McCune, Harmon, and petitioner stopped Jackson's car and administered a severe beating to Jackson, repeatedly kicking and hitting him in his head and body. They then put Jackson into the back seat of his car and drove to the end of a nearby dead-end street. J.A. 27, 37. When they arrived at the end of the street, petitioner and Harmon pushed Jackson out of the car, and Harmon threw him face down in a puddle of water. Thomas suggested that they throw Jackson into a sanitary canal that ran near the street. Harmon and petitioner then instructed McCune to get a knife. McCune drove away and did not return. Later that morning, the police found Jackson's body in a puddle of water near the canal. J.A. 37-38. McCune, Thomas, and petitioner were separately arrested later that day on charges stemming from the fight at the 1623 Club. McCune waived his Miranda rights and gave a statement admitting his involvement in the fight and the murder of Jackson; he also implicated petitioner, Thomas, and Harmon in the murder. J.A. 38; see also Tr. 4-6, 716-719. After petitioner was arrested, he was questioned by Officer Michael Gresham. At the outset of the interview, Gresham read the Miranda warnings to petitioner. Petitioner stated that he understood his rights and gave a statement regarding the fight at the 1623 Club. Petitioner asserted, however, that he did not know anything about the Jackson murder. Petitioner remained in police custody overnight. J.A. 38; Tr. 10-12, 33, 720-723. The next day, August 22, Thomas and McCune were interviewed by Assistant State's Attorney Robert Friedman. Thomas at first waived his Miranda rights and answered the prosecutor's questions, but in the middle of the interview he refused to answer any more questions and asserted his right to counsel. Friedman also questioned McCune, who again gave a statement implicating petitioner, Thomas, Harmon, and himself in the murder of Jackson. Later that evening, a police officer told petitioner that he had been implicated in the murder and that "charges were either approved or that the police were seeking charges at that time." J.A. 38-39. On August 23, petitioner, McCune, and Thomas were indicted for Jackson's murder. When Officer Gresham informed petitioner of the indictment, petitioner asked how many individuals had been indicted. When he found out that Harmon had not been indicted, petitioner asked "why wasn't he indicted, he did everything." Petitioner further stated that Harmon had admitted his involvement to a woman named Dorisa. Tr. 21, 59, 729-730; see also J.A. 39. Gresham immediately readvised petitioner of his Miranda rights by giving petitioner a printed form bearing the Miranda warnings and by reading the warnings aloud. Petitioner initialed the warnings and signed the portion of the form containing the waiver of rights. Tr. 21-22, 730-732. Petitioner then gave a statement implicating himself in the murder. See Tr. 22-23, 732-734. Assistant State's Attorney George Smith interviewed petitioner later that same day. Petitioner confirmed that he had signed the Miranda waiver form given to him by Officer Gresham and that he understood his rights at the time he signed the form. Smith again advised petitioner of his Miranda rights and petitioner repeated his account of Jackson's murder. J.A. 40; see also Tr. 74-78, 795-797, 812-813. 2. Prior to the trial, petitioner moved to suppress the statements that he had made to Gresham and Smith. The trial court denied the motion (Tr. 168-169). The statements were introduced at trial (Tr. 731-734, 812-813), and petitioner was convicted of murder. He was sentenced to 24 years' imprisonment. J.A. 36. /1/ The intermediate state appellate court affirmed petitioner's conviction (J.A. 26-35). It rejected petitioner's claim that he had not effectively waived his Sixth Amendment right to the assistance of counsel, stating that petitioner "knew he was under indictment for murder, so he was aware of the gravity of his legal situation. Because he had been given Miranda warnings, he was informed of his right to have an attorney present during questioning. These facts and circumstances are sufficient to show that (petitioner) intelligently waived his known right to counsel before making his statements to police" (J.A. 30). /2/ 3. The Supreme Court of Illinois unanimously affirmed petitioner's conviction (J.A. 36-48). Relying on its prior decision in People v. Owens, 102 Ill. 2d 88, 464 N.E.2d 261, cert. denied, 469 U.S. 963 (1984), the court rejected petitioner's argument that "the State must satisfy a higher burden to establish a knowing and intelligent waiver of the Sixth Amendment right to counsel than is necessary to establish a waiver of the right to counsel guaranteed by Miranda" (J.A. 42). The defendant in Owens had been advised of his Miranda rights prior to the interrogation and was aware that he was being held in connection with a murder investigation. The Illinois Supreme Court held that those facts were sufficient to establish a valid waiver. It stated that the defendant "was aware of the severity of the situation facing him and, since he had been given his Miranda warnings, he knew he had the right to have an attorney present during questioning. Considering these facts, together with defendant's familiarity with the Miranda warnings, we have no doubt of the admissibility of the statements" (People v. Owens, 102 Ill. 2d at 102-103, 464 N.E.2d at 267). In the present case, the court found that petitioner was "aware of the gravity of his situation" because he learned that he had been indicted on the murder charge before he gave his statements to Gresham and Smith (J.A. 43). The court further found that petitioner "understood his constitutional rights before he gave his statements" by virtue of the fact that he was advised of his Miranda rights and indicated that he understood those rights (ibid.). Therefore, the court concluded, petitioner "knowingly and intelligently waived his Sixth Amendment right to counsel" (J.A. 44). SUMMARY OF ARGUMENT The Miranda warnings that petitioner received prior to each of his confessions provided him with the information necessary for an effective waiver of his Sixth Amendment right to have counsel present during those interrogations. To be sure, the Sixth Amendment right to counsel is not identical to the right to counsel provided in Miranda v. Arizona, 384 U.S. 436 (1966), and for that reason, the Sixth Amendment waiver test is not identical in all respects to the waiver inquiry under Miranda. In the context of post-indictment interrogations, however, the test should ordinarily be the same. A defendant who faces a decision whether to talk to the police after indictment is in much the same position as a suspect who faces a similar decision prior to the filing of formal charges. In both cases, there is some prospect that the individual will be able to help himself by speaking with the authorities, but there is also a risk that he will hurt himself by doing so. In both cases, the individual may be overmatched by trained interrogators, and he may not recognize when he is making admissions that will be very damaging to him at trial. Under those circumstances, the Court in Miranda concluded that a suspect in a pre-indictment interview setting could validly waive his rights as long as he was told that he had a right to remain silent and a right to have counsel present before questioning, and as long as he was advised of the consequences of his waiver -- that anything he said could be used against him in court. In the closely analogous setting of post-indictment interrogation, those warnings serve the same purpose: they apprise the defendant of everything he needs to know in order to make a knowing waiver of his Sixth Amendment right to counsel. Petitioner argues that the warnings sufficient for pre-indictment interrogations do not suffice for post-indictment interrogations for two reasons: because the need for counsel is greater at a post-indictment interrogation, and because the Sixth Amendment right to counsel is more important than the right to counsel that is conferred by this Court's decision in Miranda. Neither argument is persuasive. It is true that, after indictment, the proceedings change in character from investigative to accusatory. For that reason, it may be less likely in the post-indictment setting that the accused can help himself by what he says. Yet that does not explain why it should be more difficult for the accused to waive counsel in that setting than in the pre-indictment context. For purposes of the waiver inquiry, nothing is different. The right is still the same -- the right to counsel -- and the unfavorable consequences of its waiver are still the same -- the risk that the accused will create evidence against himself. The fact that it may be more likely in the post-indictment setting that the consequences will turn out to be unfavorable for the accused goes to the wisdom of the waiver, not to whether it was knowingly made. Accordingly, there is no reason that the advice given by the police in the pre-indictment stage should not suffice in the post-indictment stage as well. There is also no force to petitioner's second argument -- that the rights granted by the Sixth Amendment are more important than the rights created by the Court in Miranda, and that a waiver of the former should therefore require more elaborate procedures than a waiver of the latter. That argument misses the point of the waiver inquiry. This Court has not created a sliding scale of waiver, in which rights thought to be of secondary concern are readily found to be waived, while waiver is more grudgingly found in the case of rights that are thought to be more important. Instead, the validity of a waiver turns on the content of the right being waived. If the right is a simple one and the consequences of foregoing it are obvious, the waiver inquiry need not be exhaustive. On the other hand, if the right at issue is complex and the consequences of waiver unclear, a more detailed inquiry may be required. That analysis explains the difference between the waiver inquiry when the right at issue is the right to counsel at trial, as opposed to the right to counsel at a pretrial interrogation. Because the defendant's right to the assistance of counsel at trial is somewhat complex, the Court has required, as a prerequisite to a valid waiver, that the individual be given a relatively detailed explanation of just what he is surrendering by proceeding pro se or with counsel who is burdened by a conflict of interest. When the issue is the assistance of counsel at an interrogation, on the other hand, the risks facing the suspect are much more easily explained. Advising the suspect of his right to counsel and warning him that if he waives the right he may produce evidence that could be used against him therefore provides a sufficient foundation for upholding a subsequent waiver as voluntary and informed. ARGUMENT PETITIONER'S STATEMENTS DURING THE POST-INDICTMENT INTERROGATIONS WERE PROPERLY ADMITTED INTO EVIDENCE Under this Court's decisions, it is clear that petitioner had the right to the assistance of counsel at the post-indictment interrogations that resulted in his two inculpatory statements. Although the "core purpose" of the Sixth Amendment right to counsel is to assure that the accused has the assistance of counsel at trial (United States v. Ash, 413 U.S. 300, 309 (1973)), the Court has extended the right to counsel to "certain 'critical' pretrial proceedings" that occur after the commencement of adversary judicial proceedings (United States v. Gouveia, 467 U.S. 180, 188-189 (1984)). The Court has made clear that a post-indictment interrogation is one such critical proceeding. Michigan v. Jackson, 475 U.S. 625, 629-630 (1986); Brewer v. Williams, 430 U.S. 387, 401 (1977). Moreover, the Sixth Amendment right to counsel is applicable without the need for a request by the defendant. See Brewer v. Williams, 430 U.S. at 404; Carnley v. Cochran, 369 U.S. 506, 513 (1962). For that reason, petitioner was entitled to the presence of an attorney during the two post-indictment interrogations unless he validly waived that right. To establish that petitioner waived his right to the assistance of counsel at interrogation, the prosecution was required to prove "'an intentional relinquishment or abandonment of a known right or privilege.'" Brewer v. Williams, 430 U.S. at 404 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). That inquiry has two components. "First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986); see also Edwards v. Arizona, 451 U.S. 477, 482 (1981). /3/ The first part of the waiver test was plainly satisfied here. There is no question that by signing the waiver form petitioner decided to relinquish his right to counsel and that his decision was voluntary. Compare Brewer v. Williams, supra (holding that the defendant had not waived his Sixth Amendment right to counsel because he did not intentionally relinquish that right). The sole question in this case concerns the second part of the waiver test: whether petitioner was provided with the information he needed to make a "knowing" waiver of his right to counsel. A. The Miranda Warnings Provide All The Information Needed To Make A Knowing Waiver of the Sixth Amendment Right To Counsel During Post-Indictment Interrogation Before each of the post-indictment interrogations in this case, petitioner was informed that he had a right to the assistance of counsel in connection with the interrogation and that if he could not afford a lawyer one would be appointed for him. He also was told that he had a right to remain silent and that anything he said could be used against him. J.A. 39-40. That information was plainly sufficient to inform petitioner of the nature of his Sixth Amendment right. Indeed, the warning constituted a straightforward and accurate description of the constitutional right itself: petitioner was told that he had a right to the assistance of counsel at the interrogation, which is precisely what this Court has held the Sixth Amendment provides in the context of post-indictment questioning by the police. Petitioner also was aware of the consequences of waiving that right. The most direct consequence, of course, was that petitioner would not have the assistance of counsel during the interrogation. Although the interrogating officers did not say that in so many words, it was the obvious and unavoidable consequence of the decision to decline the assistance of a lawyer. Petitioner also was told that, if he declined to obtain the assistance of counsel and answered the questions posed by the police officer and the prosecutor, his statements could be used against him. Petitioner thus knew that by permitting the interrogation to proceed without the assistance of counsel, he ran the risk of creating evidence for the prosecution that could be introduced at his trial. Since petitioner was informed of both the nature of his Sixth Amendment right and the consequences of his decision to abandon that right, he had all the information he needed to make a knowing waiver of the Sixth Amendment right. To paraphrase the Court's conclusion in a related context, "(i)t is inconceivable that such a warning would fail to alert (a defendant) to his right to" the assistance of counsel. United States v. Washington, 431 U.S. 181, 188 (1977). This Court's decisions upholding waivers of the privilege against compelled self-incrimination under Miranda v. Arizona, 384 U.S. 436 (1966), strongly support the conclusion that informing an individual of the nature of the right and the consequence of a waiver is all that is necessary to lay the foundation for a knowing waiver of that right. Cf. Michigan v. Jackson, 475 U.S. 625 (1986) (applying Miranda waiver concepts in Sixth Amendment context). The Court recently concluded that "(t)he Miranda warnings protect (the self-incrimination) privilege by ensuring that a suspect knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time. The Miranda warnings ensure that a waiver of these rights is knowing and intelligent by requiring that the suspect be fully advised of this constitutional privilege, including the critical advice that whatever he chooses to say may be used as evidence against him." Colorado v. Spring, No. 85-1517 (Jan. 27, 1987), slip op. 9; see also Moran v. Burbine, 475 U.S. at 424. All the information required for an effective waiver of the rights described in the Miranda warnings is conveyed by (1) a statement of the substance of the rights -- that the suspect has the right to remain silent and the right to counsel before questioning, and (2) the warning that anything the suspect says may be used against him. For the same reasons, a statement of the substance of the analogous Sixth Amendment right to the assistance of counsel at interrogation, together with a warning regarding the consequences of being questioned without counsel, provides a sufficient foundation for a knowing waiver of that Sixth Amendment right. See Brewer v. Williams, 430 U.S. at 436 n.5 (White, J., joined by Blackmun and Rehnquist, JJ., dissenting) ("(t)here is absolutely no reason to require an additional question to the already cumbersome Miranda litany just because the majority finds another case -- Massiah v. United States(, 377 U.S. 201 (1964)) -- providing exactly the same right to counsel as that involved in Miranda. * * * If an intentional relinquishment of the right to counsel under Miranda is established by proof that the accused was informed of his right and then voluntarily answered questions in counsel's absence, then similar proof establishes an intentional relinquishment of the Massiah right to counsel"). /4/ B. Nothing About the Sixth Amendment Right To Counsel At Interrogation Justifies A Waiver Procedure More Elaborate Than That Required By This Court's Decision in Miranda Petitioner makes two related arguments in support of his position that the Miranda warnings are not sufficient to support a waiver of the Sixth Amendment right to counsel at a post-indictment interrogation. First, he asserts that the Sixth Amendment right to counsel is broader and more important than the right to counsel referred to in the Miranda warnings. For that reason, he contends, a waiver of the Sixth Amendment right cannot be found as readily as a waiver of the right to counsel at issue in Miranda. Second, petitioner argues that there are differences in the setting in which the two rights arise that justify the application of different waiver principles. /5/ 1. The waiver test applicable to a particular right cannot be ascertained by ranking constitutional rights on some subjective scale of importance and asserting that the proof necessary to establish a valid waiver necessarily increases as one moves along that scale. Constitutional rights cannot be ranked as greater and lesser; they are simply different. Cf. Prince v. Massachusetts, 321 U.S. 158, 164 (1944). Nor has this Court in any way suggested that the proper content of the waiver standard depends on a judgment as to the "importance" of a particular right. For example, the Fourth Amendment right to security of the home or person is certainly an "important" right, but that right can be waived by consent to a search without any advice at all regarding the nature of the right being given up or the consequences of its waiver. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Rather than depending on an assessment of the importance of the underlying right, the procedures necessary to obtain a "knowing" waiver turn on the interests protected by the underlying right and the relative ease or difficulty of comprehending both the right and the consequences of its surrender. When a defendant agrees to plead guilty, for example, he effectively waives a whole complex of rights. Because of the number of rights involved and the fact that it is not necessarily obvious that the consequence of a guilty plea is the forfeiture of those rights, the defendant must be aware of more than the mere fact that he has a right to enter a plea of not guilty. The defendant must be advised or otherwise be shown to understand each of the rights he is forfeiting by his guilty plea. See Boykin v. Alabama, 395 U.S. 238 (1969). As we have explained, the Miranda warnings satisfy this test in the context of pretrial interrogation. They fully inform a defendant of the substantive content of the Sixth Amendment right to the assistance of counsel during interrogation and the consequences of a decision to waive that right. Petitioner attempts (Br. 25) to analogize the waivers at issue here to a decision to waive the assistance of counsel at trial. But the stark contrast in the complexity of the rights at issue explains the difference in the procedures for waiving counsel at trial and waiving counsel during pretrial interrogation. In Faretta v. California, 422 U.S. 806 (1975), this Court held that the Sixth Amendment guarantees a defendant the right to refuse the assistance of counsel and to choose instead to represent himself at trial. The Court stated that "the accused must 'knowingly and intelligently' forgo (the benefits of representation by counsel). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open'" (422 U.S. at 835 (citations omitted)). The right to the assistance of counsel at trial addressed in Faretta is the "core" right guaranteed by the Sixth Amendment (see United States v. Gouveia, 467 U.S. at 188-189). This case, on the other hand, concerns partial waivers of a less central component of the Sixth Amendment right to counsel: petitioner's waivers were limited to his right to the assistance of counsel at the post-indictment interrogations. Accordingly, a suspect in petitioner's position need only be informed of the nature of the limited right to counsel at interrogation and the consequences of waiving that limited right. There is no need to provide the suspect with information about the portion of the right that is not being waived. The differences between the role of counsel at a pretrial interrogation and counsel's role at the trial itself justify different conclusions regarding the amount of information needed for a knowing waiver in these two contexts. The complex procedural and substantive rules governing the conduct of a trial -- and the complex determinations that must be made by an attorney -- are likely to be quite unfamiliar to a defendant. For that reason, it may be necessary to provide a defendant contemplating self-representation at trial with a considerable amount of information concerning both the nature of the proceeding and the lawyer's role in representing his client in that proceeding. Cf. United States v. Gouveia, 467 U.S. at 188-189 (citation omitted) (accused is "'confronted with both the intricacies of the law and the advocacy of the public prosecutor'" at trial); Powell v. Alabama, 287 U.S. 45, 68-69 (1932). Unlike a trial, a pretrial interrogation is not governed by complex procedural or substantive rules. The basic issue confronting the suspect is whether to answer the questions or to exercise his privilege against self-incrimination. Counsel's role in that context is generally just to advise his client whether he should speak with the authorities or not, and to shield his client from possible overreaching by the police. Our legal system assumes that, armed with the information provided by the Miranda warnings, the suspect has the capacity to decide whether to seek the assistance of counsel for those purposes prior to the commencement of adversary proceedings. See, e.g., Colorado v. Spring, slip op. 9. Nothing about the commencement of such proceedings undercuts that assumption. Accordingly, no additional information is required to acquaint the suspect with the nature of the right to counsel in the pretrial interrogation context. 2. The virtual identity between the substantive protection conferred by the right to the presence of counsel under Miranda and the Sixth Amendment right to the assistance of counsel at interrogation, as well as the similarity in the interests implicated in the two contexts, strongly support the conclusion that the same information should suffice to establish a knowing waiver of the two rights. The Fifth Amendment privilege against compelled self-incrimination does not expressly encompass a right to the assistance of counsel. Rather, the privilege "is only that the witness not be compelled to give self-incriminating testimony. The test is whether, considering the totality of the circumstances, the free will of the witness was overborne" (United States v. Washington, 431 U.S. at 188 (emphasis in original)). In most contexts, the failure to assert the privilege constitutes an effective waiver; no prior warnings are required. United States v. Mandujano, 425 U.S. 564, 574-575 (1976) (plurality opinion). When an individual is subjected to custodial interrogation, however, this Court's decision in Miranda v. Arizona, supra, requires police officers to follow "procedural safeguards" designed to combat the pressures of custodial interrogation and "permit a full opportunity to exercise the privilege against self-incrimination." 384 U.S. at 444-445, 467; see also Moran v. Burbine, 475 U.S. at 420; Michigan v. Tucker, 417 U.S. 433, 444 (1974). Accordingly, "(p)rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed" (Miranda, 384 U.S. at 444-445). The right to the presence of an attorney set forth in the warning is, of course, limited to the context of custodial interrogation. /6/ The Sixth Amendment right to counsel is, of course, grounded in the language of the Amendment itself. /7/ The right to counsel "means more than simply that the State cannot prevent the accused from obtaining the assistance of counsel. (It) also imposes on the State an affirmative obligation to respect and preserve the accused's choice to seek this assistance. * * * (A)t the very least, the prosecutor and the police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel" (Maine v. Moulton, 474 U.S. 159, 171 (1985)). Thus, in addition to providing a defendant with a right to the presence of counsel at particular proceedings, the Sixth Amendment bars the police from using investigative techniques that result in the circumvention of the right to counsel. See Maine v. Moulton, supra (electronic surveillance of the defendant's conversations with third parties); United States v. Henry, 447 U.S. 264 (1980) (use of cellmate to surreptitiously monitor the defendant's conversations); Massiah v. United States, supra. There is no difference in the substantive content of these two guarantees as they apply to the situation presented in this case -- a non-surreptitious post-indictment interrogation of a suspect in police custody, where the suspect has not asserted a right to counsel and the suspect's attorney has not attempted to communicate with him. Both Miranda and the Sixth Amendment grant the suspect a right to the presence of counsel at the interrogation; if that right is violated, the suspect's statements may not be admitted at trial. In view of the complete congruence between the two rights, the same information should suffice to establish a knowing waiver of both rights. /8/ Nor should the procedures leading to a waiver under Miranda or the Sixth Amendment differ because of a difference in the balance of interests between the government and the suspect under the Fifth and Sixth Amendments. The Court has described the decision in Miranda as striking a balance between "society's legitimate law enforcement interests and the protection of the defendant's Fifth Amendment rights" (Moran v. Burbine, 475 U.S. at 424). On one side of the balance, the Court has recognized that custodial interrogation brings significant pressures to bear on an individual to give up his right to remain silent. In light of those pressures, the Court established a right to counsel under Miranda in order to "assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process" (Miranda, 384 U.S. at 469). The Court noted that the presence of an attorney would reduce the likelihood that the police would engage in coercion and "help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution." Id. at 470; see also Fare v. Michael C., 442 U.S. 707, 719 (1979). Moreover, the Court observed that the warnings and the right to the presence of counsel grounded in the privilege against compelled self-incrimination serves to protect a defendant's rights at trial: "(w)ithout the protections flowing from adequate warnings and the rights of counsel, 'all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police'" (Miranda, 384 U.S. at 466 (citations omitted)). On the other side of the balance, the Court has recognized that "'the need for police questioning as a tool for effective enforcement of criminal laws' cannot be doubted. Admissions of guilt are more than merely 'desirable'; they are essential to society's compelling interest in finding, convicting, and punishing those who violate the law." Moran v. Burbine, 475 U.S. at 426 (citations omitted); see also Schneckloth v. Bustamonte, 412 U.S. at 225; Haynes v. Washington, 373 U.S. 503, 515 (1963); Culombe v. Connecticut, 367 U.S. 568, 571, 576, 578-580 (1961) (opinion of Frankfurter, J.). For that reason, the Court has refused to prohibit custodial interrogation, and it has permitted interrogation following a waiver of the right to have counsel present during questioning, upon a showing that the suspect was informed of the right and voluntarily relinquished it. See Miranda, 384 U.S. at 475-476, 479. The waiver of the Sixth Amendment right to the assistance of counsel at interrogation implicates similar competing interests and therefore does not require a different waiver procedure. On the government's side of the balance, the interest is the same: the government's interest in obtaining evidence of crime does not abate upon the commencement of adversary proceedings against an individual; it continues through the preparation for trial. /9/ On the individual's side of the balance, the interests protected by the Sixth Amendment counsel guarantee in the context of police interrogations are virtually identical to the interests protected by Miranda. Indeed, the Court has described the purposes of the right in terms identical to those used in Miranda, stating that "(i)n Massiah counsel could have advised his client on the benefits of the Fifth Amendment and could have sheltered him from the overreaching of the prosecution." United States v. Ash, 413 U.S. at 312 (citing both Massiah and Miranda). Furthermore, like Miranda, the Sixth Amendment right to counsel is intended to prevent pretrial encounters between a defendant and the police from effectively nullifying the protections afforded to the accused at trial. See Maine v. Moulton, 474 U.S. at 170; see also Schneckloth v. Bustamonte, 412 U.S. at 239-240. Since the interests of the individual protected by the two rights are the same, it is logical to conclude that knowledge of the same set of facts permits a suspect to waive both of the rights. In seeking to distinguish pre-indictment and post-indictment interrogation, petitioner points out (Br. 16-18 (citation omitted)) that after the filing of an indictment, the "'adverse positions of government and defendant have solidified,'" and the defendant is "'faced with the prosecutorial forces of organized society.'" From that, he contends that the imposition of a more stringent waiver standard is appropriate in such a setting. But the considerations cited by petitioner merely explain why the Sixth Amendment right attaches at the time of indictment. It is those factors that justify the imposition of some warning requirement rather than no warning at all; those factors do not provide any justification for a heightened warning requirement, especially in light of the similar purposes served by the Miranda and Sixth Amendment guarantees in this context. In any event, with respect to the relative positions of the individual and the interrogator, it is unclear what, if anything, turns on the "solidified" positions of the government and the defendant. An interrogator, whether before indictment or afterwards, has a single interest -- to obtain information. The defendant may have a variety of interests ranging from persuading the interrogator of his innocence, improving his position through apparent or actual cooperation, helping (or perhaps hurting) his cohorts, or simply experiencing the relief of confession. Most, if not all, of those interests are the same whether the interrogation occurs before or after indictment. /10/ Petitioner also suggests (Br. 19-20) that the Sixth Amendment waiver standard should differ from the Miranda test because a suspect's interest in cooperating with the police is reduced after indictment. That difference, however, does not suggest that there should be a difference in the waiver procedure. The nature of the right to counsel and the unfavorable consequences of waiver remain the same before or after indictment. The fact that after indictment it may be more likely that the consequences will turn out to be unfavorable goes to the wisdom of the waiver decision, not to whether it was knowingly made. Put another way, the fact that the decision to make a statement may not be in the suspect's self-interest is not relevant to the waiver decision, because the purpose of the Sixth Amendment right is to secure to the defendant the right to representation, not to encourage him not to speak with the police. In any event, there are in fact advantages to be gained from cooperation with the police even after indictment. For example, the cooperating suspect may win the right to plead guilty to a lesser charge as the result of a decision to cooperate with the police, or he may even be able to persuade the authorities that they have indicted the wrong person. 3. Although petitioner repeatedly asserts (Br. 26-30) that the prosecution should bear a greater burden when it seeks to establish a waiver of Sixth Amendment rights, he fails to specify the contours of the additional burden that he proposes. Petitioner's inability to define the way in which he would supplement the Miranda waiver procedures serves only to emphasize the fact that petitioner is unable to find an interest underlying the Sixth Amendment right to the assistance of counsel at interrogation that is not fully protected by the Miranda warnings. Petitioner suggests at one point (Br. 30-31 n.1) that "police and prosecutors might alert the indicted accused to the nature of the Sixth Amendment right being waived" through additional warnings. /11/ But, as we have shown, additional warnings are not necessary to inform a defendant of the nature and consequences of a waiver decision. The purpose of such warnings presumably would be to provide a defendant with "information to help him calibrate his self-interest in deciding whether to speak or stand by his rights" (Moran v. Burbine, 475 U.S. at 422). But nothing in the Sixth Amendment requires the government to provide a suspect with such information. And any incremental protection of the Sixth Amendment privilege "would come at a substantial cost to society's legitimate and substantial interest in securing admissions of guilt," because the premise of the additional warnings is that they would convince a suspect to assert his right to counsel. Moran v. Burbine, 475 U.S. at 427. Finally, any additional warning requirement would lead to considerable uncertainty. The Court repeatedly has cited the benefits of the bright-line character of the Miranda rules, and it recently relied upon those benefits in applying one of those rules in the Sixth Amendment context (see Michigan v. Jackson, 475 U.S. at 634-635). Holding that the Miranda warnings provide a suspect with the foundation necessary for a knowing waiver of the Sixth Amendment right to the assistance of counsel at interrogation would have the advantage of avoiding confusion regarding the obligations of law enforcement officers seeking to obtain probative evidence. /12/ Petitioner argues (Br. 30-31) that the attachment of Sixth Amendment rights should be deemed the equivalent of an invocation of the right to counsel under Miranda. Under his theory, once the suspect's Sixth Amendment rights have attached, a police officer would be barred from approaching the suspect to attempt to obtain information. Petitioner's theory, however, is inconsistent with this Court's analysis in Michigan v. Jackson, supra. The question in Jackson was whether the rule of Edwards v. Arizona, 451 U.S. 477 (1981), applies with respect to the Sixth Amendment right to counsel. Edwards holds that a suspect in custody who has "expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police" (451 U.S. at 484-485). The Court held in Jackson that the Edwards rule applies to waivers of the Sixth Amendment right to the assistance of counsel at interrogation: "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid" (475 U.S. at 636). If petitioner were correct that the attachment of the Sixth Amendment right to counsel automatically triggers the Edwards rule, there would have been no need for this Court to base its decision in Jackson upon the defendant's request for counsel at his arraignment: the subsequent waiver would have been invalid even if the defendant had not previously requested counsel. Yet nothing in the Court's decision indicates that the request for counsel was irrelevant or that the police officers may never approach a defendant after indictment. See Michigan v. Jackson, 475 U.S. at 640 (Rehnquist, J., dissenting) (emphasis in original) ("the Court most assuredly does not hold that the Edwards per se rule prohibiting at all police-initiated interrogations applies from the moment the defendant's Sixth Amendment right to counsel attaches, with or without a request for counsel by the defendant. * * * Applying the Edwards rule to situations in which a defendant has not made an explicit request for counsel would * * * render completely nugatory the extensive discussion of 'waiver' in such prior Sixth Amendment cases as Brewer v. Williams, 430 U.S. 387, 401-406 (1977)"). In any event, the automatic prohibition upon police questioning that would be effected by petitioner's proposed rule would represent a "shockingly dramatic restructuring of the balance this Court has traditionally struck between the rights of the defendant and those of the larger society" (Michigan v. Jackson, 475 U.S. at 640 (Rehnquist, J., dissenting)). In some cases, such as where a suspect is not apprehended until after indictment, police officers may have no opportunity to question the suspect until after his Sixth Amendment rights have attached. Petitioner's rule would completely foreclose law enforcement officers from making even a single attempt to obtain the suspect's cooperation, thus placing off limits what might be the single most valuable source of evidence available. Nothing in the Sixth Amendment or practical experience suggests that such an extreme measure is needed to protect defendants against the risk that they may improvidently waive their right to counsel. /13/ CONCLUSION The judgment of the Supreme Court of Illinois should be affirmed. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General ANDREW J. PINCUS Assistant to the Solicitor General JANUARY 1988 /1/ Petitioner's co-defendant David Thomas was also convicted of murder; Juan McCune pleaded guilty before trial to the charge of concealment of a death. J.A. 36. /2/ The court also rejected petitioner's claim that his statements were involuntary (J.A. 30-32). /3/ Moran concerned a waiver of the rights conferred by this Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966), but the Moran Court did not indicate that its description of the waiver inquiry was limited to that context. Indeed, the Court relied upon Johnson and Brewer -- two Sixth Amendment waiver cases -- in formulating the waiver inquiry. /4/ Many courts of appeals have reached the same conclusion. See United States v. Brown, 569 F.2d 236, 239 (5th Cir. 1978) (en banc); United States v. Woods, 613 F.2d 629, 634 (6th Cir.), cert. denied, 446 U.S. 920 (1980); United States v. Binder, 769 F.2d 595, 599 (9th Cir. 1985); see also United States v. Payton, 615 F.2d 922, 924-925 (1st Cir.), cert. denied, 446 U.S. 969 (1980) (Miranda warnings plus information that the defendant had been indicted); Murphy v. Holland, 776 F.2d 470, 481-482 (4th Cir. 1985) (reserving question); Robinson v. Percy, 738 F.2d 214, 222 (7th Cir. 1984) (case-by-case approach). Only the Second Circuit has taken a contrary view. See United States v. Mohabir, 624 F.2d 1140 (1980) (adopting stringent waiver requirement). /5/ Contrary to petitioner's apparent belief (Br. 9), no rule of constitutional law mandates the formulation of a different waiver requirement for every constitutional right. Constitutional guarantees may overlap, with the result that a particular right is protected by two separate provisions of the Constitution. See, e.g., Widmar v. Vincent, 454 U.S. 263, 269 n.6 (1981) (government interference with religious speech implicates Free Speech Clause as well as the Free Exercise Clause). Nothing renders the Miranda warnings inherently unsuitable as the means for supplying a suspect with the information necessary for an effective waiver of the Sixth Amendment right to the assistance of counsel at a post-indictment interrogation. The Miranda warnings are not by their terms limited to the Fifth Amendment context; the portion of the warnings relating to the assistance of counsel at interrogation refers simply to a "right to counsel." /6/ That right is not triggered by the initiation of the interrogation. Michigan v. Mosley, 423 U.S. 96, 104 n.10 (1975); see also Moran v. Burbine, 475 U.S. at 433 n.4. However, any statement will be inadmissible at trial unless the suspect waives his right to counsel before giving the statement. See Miranda v. Arizona, 384 U.S. at 479. As applied to custodial interrogation, the right is therefore indistinguishable in effect from the Sixth Amendment right to counsel. /7/ The Sixth Amendment provides in pertinent part that "(i)n all criminal prosecutions, the accused shall enjoy the right to * * * have the Assistance of Counsel for his defence." /8/ There would be a difference in both analysis and result under the two constitutional standards if the facts in a particular case implicated the aspect of the Sixth Amendment guarantee that bars government circumvention of the attorney-client relationship. For example, a suspect may effectively waive his Miranda rights even if the police fail to tell him that his attorney has tried to reach him; a Sixth Amendment waiver, however, would not be valid unless the police provided the suspect with that information. See Moran v. Burbine, 475 U.S. at 424, 428. Similarly, conversations initiated by undercover police officers do not implicate the protections of Miranda because they do not subject the suspect to custodial interrogation. But Massiah and its progeny make clear that such activities do violate the Sixth Amendment, because the defendant has a right to the assistance of counsel at such confrontations with the authorities and, by virtue of the surreptitious nature of the activity, the defendant could not be found to have waived that right. See United States v. Henry, 447 U.S. at 273. /9/ One court of appeals has suggested that the government's interest in obtaining such evidence is reduced because "any questioning of the defendant by the government can only be 'for the purpose of buttressing * * * a prima facie case'" (United States v. Mohabir, 624 F.2d 1140, 1148 (2d Cir. 1980) (citation omitted)). This suggestion rests upon an unrealistic view of the criminal justice process. While in some instances the government's case is complete at the time of indictment, there are many instances in which charges must be brought after probable cause is established but before the investigation is complete. Even when the prosecution believes that it has sufficient evidence to warrant a conviction, the vagaries of the jury system are such that the prospect of a conviction does not approach certainty until the government's evidence crosses the line between a strong case and an overwhelming one. For that reason, the investigative process often continues after the commencement of adversary proceedings as the prosecution seeks to present the strongest possible case at trial. /10/ This point can be illustrated by a situation that arises with some frequency -- where the police seek to question an individual about several crimes, some of which have been made the subjects of formal charges and some of which are still in the investigative stage. The respective interests of the individual and the police do not change when the subject of the questioning changes from a crime on which the individual has been charged to a crime on which charges have not yet been brought. /11/ One possible addition to the Miranda warnings would be to advise the defendant in the post-indictment setting that he has been indicted. That information was conveyed in this case, for petitioner was advised that he had been indicted for murder. Tr. 21. The court below relied upon that fact in upholding the validity of the waivers, stating that the information regarding the indictment made petitioner "aware of the gravity of his legal situation" (J.A. 30). Because petitioner was supplied with that information, this case does not present the question whether police officers must inform a suspect of the fact that formal adversary proceedings have commenced and specify the charges lodged against the suspect in order to obtain a valid waiver of the Sixth Amendment right to the assistance of counsel at interrogation. As a general matter, a defendant involved in post-indictment interrogation is usually well aware that he has been indicted; the question whether such a warning is constitutionally required accordingly is not likely to arise with any frequency. In any event, we doubt that the Sixth Amendment embodies a special rule requiring that a suspect be informed of "the gravity of his legal situation" in order to make an effective waiver of rights; and any additional warning requirement may lead to uncertainty as to the scope of the requirement and may deter the gathering of probative evidence. See United States v. Mohabir, 624 F.2d at 1150 (holdinig that informing the defendant of the fact that he was indicted is not sufficient to validate a Sixth Amendment waiver; prosecutor also must explain "the significance of the indictment"). /12/ Petitioner also suggests (Br. 30-31 n.1) that consultation with counsel should be a prerequisite to an effective waiver or that a defendant should be prohibited from waiving his Sixth Amendment right. But such rules would squarely conflict with Faretta, which preserves the individual's rights to decide for himself whether to seek the assistance of counsel. One court of appeals has exercised its supervisory power to adopt the rule that an effective waiver of the Sixth Amendment right to counsel may be obtained only if the warnings are administered by a neutral judicial officer. See United States v. Mohabir, 624 F.2d at 1153. As the court of appeals itself apparently recognized, nothing in the Sixth Amendment supports the conclusion that rights associated with pretrial proceedings may be waived only in a trial-type setting. We submit that law enforcement officers are competent to supply suspects with the necessary information.