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Unpublished Paper
Miranda, Secret Questioning, and the Right to Counsel
ExpressO (2013)
  • Geoffrey S. Corn, South Texas College of Law

Surreptitious police questioning, either through an undercover officer or a prison inmate acting as a government agent, is often an effective tactic to exploit a suspect’s erroneous belief that it is safe to make incriminating statements. The Supreme Court has held that use of this tactic does not implicate the Miranda rights warning and waiver requirement because the suspect’s ignorance that the false friend is in fact a government agent eliminates an essential element of the custodial interrogation trigger for these rights. However, in Edwards and Minnick, the Supreme Court recognized that once a suspect invokes the Miranda right to counsel, it indicates the suspect is unable to deal with police without the assistance of counsel. As a result, when police re-initiate questioning of such a suspect and obtain a fresh Miranda waiver, the exploitation of the suspect’s vulnerability invalidates the waiver. While Maryland v. Shatzer established a bright line expiration date for this protection, the protection remains in effect so long as the suspect remains in custody.

One aspect of permissible surreptitious questioning that remains unclear is whether police may engage in such questioning of a suspect subsequent to invocation of the Miranda right to counsel. The Court has never addressed this intersection of the Edwards/Minnick “no re-initiation” rule with the surreptitious questioning exception to Miranda. This article argues that this tactic, even when employed against a suspect who has invoked the Miranda right to counsel, should be permissible. To support this argument, the article analyzes how the Miranda right to counsel and the Edwards/Minnick unapproachability rule are both built upon an assumption that the re-initiation of questioning exploits the suspect’s susceptibility to the inherently coercive environment produced by custodial interrogation, which presupposes that the suspect is aware that he is not only under the control of police (custody) but is also being questioned in a police dominated environment.

When police overtly re-initiate contact with a suspect who has invoked the Miranda right to counsel, they resurrect the exact type of pressure the suspect sought to offset by requesting the presence of counsel. Thus, in this situation, a Miranda waiver is logically invalidated. However, if the suspect is unaware that he is being questioned by police—even if the Miranda right to counsel was already invoked—then the police have done nothing to resurrect the coercive pressures that triggered the right to counsel’s presence during questioning. Accordingly, there is no valid basis to presume the suspect’s responses to the false friend are the product of inherent coercion, and therefore no justification for extending the Miranda and Edwards/Minnick prophylactic protections to a suspect in this situation.

  • Miranda,
  • right to counsel,
  • secret questioning,
  • coercion
Publication Date
March 27, 2013
Citation Information
Geoffrey S. Corn. "Miranda, Secret Questioning, and the Right to Counsel" ExpressO (2013)
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