468
Souter, J., concurring in judgment
law addressing the relationship between police and criminal suspects in custodial interrogation. Throughout that period, two precepts have commanded broad assent: that the
(1993) (White, J., dissenting from denial of certiorari), but then suggests that the conclusion it reaches was foreshadowed by McNeil v. Wisconsin, 501 U. S. 171 (1991), where we noted that the "likelihood that a suspect would wish counsel to be present" was not dispositive, id., at 178. But we were not addressing the degree of clarity required to activate the counsel right (let alone endorsing the standard embraced today), as is evident from the very page of McNeil cited, where we were careful to say only that the Miranda counsel right "requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." 501 U. S., at 178. McNeil instead made the different and familiar point that courts may not presume that a silent defendant "would" want a lawyer whenever circumstances suggest that representation "would" be in his interest.
Nor may this case be disposed of by italicizing the words of Edwards v. Arizona, 451 U. S. 477, 485 (1981), to the effect that when a suspect "clearly assert[s]" his right, questioning must cease. See ante, at 459. Even putting aside that the particular statement in that case was not entirely clear (the highest court to address the question described it as "equivocal," see State v. Edwards, 122 Ariz. 206, 211, 594 P. 2d 72, 77 (1979); see also 451 U. S., at 480, n. 6), Edwards no more decided the legal consequences of a less than "clear" statement than Miranda, by saying that explicit waivers are sufficient, 384 U. S., at 475, settled whether they are necessary. See North Carolina v. Butler, 441 U. S. 369, 373 (1979) (holding they are not). Were it otherwise, there would have been no reason after Edwards to identify the issue as unresolved, but see Barrett, supra; Smith v. Illinois, 469 U. S. 91, 95-96 (1984) (per curiam).
Nor, finally, is it plausible to read Miranda itself as a presage of the Court's rule, on account of language suggesting that questioning need not stop when a request for counsel is " 'indecisive.' " Ante, at 460 (quoting Miranda, 384 U. S., at 485). The statement quoted, however, is not taken from the Court's holding, but rather from a lengthy direct quotation of a letter to the Court from the Solicitor General, purporting to summarize then-current FBI practice (which the Court observed was "consistent," id., at 484, with the rule announced). In any event, the letter further explains that, under the FBI policy, the "indecisive" suspect may be "question[ed] on whether he did or did not waive counsel," id., at 485, an approach closer to the one advocated here than to the one the Court adopts.
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