{"id":8246,"date":"2009-12-01T22:24:51","date_gmt":"2009-12-02T03:24:51","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=8246"},"modified":"2009-12-01T22:26:21","modified_gmt":"2009-12-02T03:26:21","slug":"two-views-of-constitutional-rights-anti-badgering-versus-informed-consent","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/12\/two-views-of-constitutional-rights-anti-badgering-versus-informed-consent\/","title":{"rendered":"Two Views of Constitutional Rights: Anti-Badgering Versus Informed Consent"},"content":{"rendered":"

\"badger\"This is the\u00a0fifth in a series of posts reviewing last term\u2019s criminal cases in the United States Supreme Court and previewing the new term.<\/em><\/p>\n

You can tell there are no Wisconsinites currently on the Supreme Court — otherwise, the Justices would not treat “badger”\u00a0as such a bad word.\u00a0\u00a0In an earlier post<\/a>, I discussed the Court’s marked left-right divide last term in its cases dealing with police investigation practices.\u00a0 To my mind, the most interesting of these cases was Montejo v. Louisiana<\/em>, 129 S. Ct. 2079 (2009), which nicely exemplifies the competing views of defendants’ rights on the Court.\u00a0<\/p>\n

In Montejo,<\/em> the Court substantially weakened\u00a0the Sixth Amendment right to counsel by overturning Michigan v. Jackson<\/em>, 475 U.S. 625 (1986).\u00a0 Jackson<\/em> had prohibited police from initiating the interrogation of a criminal defendant once the defendant had requested counsel at an arraignment.\u00a0<\/p>\n

Why did the Court think Jackson <\/em>unnecessary?\u00a0 The answer lies in the Court’s concern with “badgering.”\u00a0 <\/p>\n

According the Montejo <\/em>majority (the conservative usual suspects — Scalia, Thomas, Roberts, and Alito — plus Kennedy), the only purpose served by Jackson <\/em>was to prevent police badgering, that is, police\u00a0attempts to wear down defendants\u00a0with repeated efforts to\u00a0interrogate them.\u00a0 Of course, defendants have a constitutional right to refuse to speak to the police without a lawyer present.\u00a0 But the concern is that defendants who have chosen\u00a0to exercise this right\u00a0may be induced to to change their minds by police pressure tactics.\u00a0 Thus, in order to discourage such tactics,\u00a0Jackson <\/em>required the suppression of confessions given in response to police-initiated interrogation after a request for counsel at arraignment.<\/p>\n

In the view of the Montejo <\/em>majority, however, the Jackson<\/em> anti-badgering protections were unnecessary because of the overlapping\u00a0Miranda <\/em>anti-badgering protections.\u00a0 Of course, Miranda <\/em>only applies to defendants who are in custody.\u00a0 But, Montejo <\/em>reasoned, defendants who are not in custody are unlikely to give into police pressure tactics — badgering just isn’t much of a concern outside the scenarios already covered by Miranda<\/em>.\u00a0 Thus, the majority concluded, Jackson <\/em>could be safely jettisoned without harm.<\/p>\n

The dissenters (the liberal usual suspects — Stevens, Souter, Ginsburg, and Breyer) argued that Jackson <\/em>was actually not about badgering at all, but about ensuring that defendants would be able to consult with lawyers before waiving their rights:<\/p>\n

The assistance offered by counsel protects a defendant from surrendering his rights with an insufficient appreciation of what those rights are and how the decision to respond to interrogation might advance or compromise the exercise of those rights throughout the course of criminal proceedings.\u00a0 A lawyer can provide her client with advice regarding the legal and practical options available to him; the potential consequences, both good and bad, of choosing to discuss his case with police; the likely effect of such a conversation on the resolution of the charges against him; and an informed assessment of the best course of action under the circumstances.\u00a0 Such protection goes far beyond mere protection against police badgering.<\/p><\/blockquote>\n

129 S. Ct. at 2096 n.2 (Stevens, J., dissenting).\u00a0 Thus, as against the majority’s anti-badgering view of Jackson<\/em>, the dissent emphasized genuinely informed consent to interrogation as the fundamental value at stake.\u00a0 Where the majority’s primary interest was in punishing and deterring police misconduct, the dissenters’ main concern was ensuring that defendants\u00a0had a fair\u00a0opportunity to receive\u00a0counsel before making critically important decisions about talking to the police — in their view, even well-meaning, non-badgering police should be required to\u00a0leave uncounseled defendants alone once the right to counsel has attached.<\/p>\n

Although the Court is very closely divided on the question, it seems that a majority views exlusionary rules as merely about punishing and deterring police misconduct.\u00a0 Not only was this apparent with respect to the Sixth Amendment exclusionary rule in Montejo<\/em>, but also with respect to the Fourth Amendment exclusionary rule in\u00a0Herring v. United States<\/em>, 129 S. Ct. 695 (2009).\u00a0 The Court in Herring<\/em>\u00a0held that evidence obtained as a result of a mistaken arrest need not be suppressed.\u00a0 Because the arrest in question\u00a0resulted from a negligent, not a reckless, police\u00a0error, the Court did not see the case as involving the sort of serious misconduct warranting punishment and deterrence.<\/p>\n

The Court’s focus on badgering concerns in particular\u00a0does not bode well for the defendants in the new term’s two\u00a0Miranda <\/em>cases.\u00a0 In Florida v. Powell<\/em>, the Court will consider whether Miranda <\/em>warnings informing the defendant that he had a right to talk to a lawyer “before any questioning,” and that he could use that right at any time during the interview, were sufficient to inform the defendant of his right to have counsel present during the questioning.\u00a0 In Maryland v. Shatzer, <\/em>the Court will consider whether police improperly attempted to resume\u00a0questioning after a defendant had invoked his Miranda <\/em>rights two years before.<\/em><\/p>\n

Because neither Powell <\/em>nor Shatzer <\/em>has a flavor of badgering or similar police misconduct, I am guessing that the Court will not be inclined to require suppression of the evidence at issue in either case.<\/p>\n

Earlier posts in this series:<\/em><\/p>\n