474
Souter, J., concurring in judgment
ibid., that has long been a concern of our Miranda jurisprudence. With respect to the first point, the margin of difference between the clarification approach advocated here and the one the Court adopts is defined by the class of cases in which a suspect, if asked, would make it plain that he meant to request counsel (at which point questioning would cease). While these lost confessions do extract a real price from society, it is one that Miranda itself determined should be borne. Cf. Brief for Americans for Effective Law Enforcement, Inc., et al. as Amici Curiae 5 (the clarification approach "preserves the interests of law enforcement and of the public welfare"); Escobedo, supra, at 490 ("No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, [his constitutional] rights").
As for practical application, while every approach, including the majority's, will involve some "difficult judgment calls," 7 the rule argued for here would relieve the officer of
7 In the abstract, nothing may seem more clear than a "clear statement" rule, but in police stations and trial courts the question, "how clear is clear?" is not so readily answered. When a suspect says, "uh, yeah, I'd like to do that" after being told he has a right to a lawyer, has he "clearly asserted" his right? Compare Smith v. Illinois, 469 U. S., at 97 (statement was " 'neither indecisive nor ambiguous' ") (citation omitted), with id., at 101 (Rehnquist, J., dissenting) (questioning clarity); see also Oregon v. Bradshaw, 462 U. S. 1039, 1041-1042 (1983) (plurality opinion) ("I do want an attorney before it goes very much further"); Edwards, 451 U. S., at 479 (" 'I want an attorney before making a deal' "); cf. n. 3, supra. Indeed, in this case, when Davis finally said, "I think I want a lawyer before I say anything else," the agents ceased questioning; but see People v. Kendricks, 121 Ill. App. 3d 442, 446, 459 N. E. 2d 1137, 1139 (1984) (agents need not stop interrogation when suspect says, " 'I think I might need a lawyer' "); cf. People v. Santiago, 133 App. Div. 429, 430-431, 519 N. Y. S. 2d 413, 414-415 (1987) (" 'Will you supply [a lawyer] now so that I may ask him should I continue with this interview at this moment?' " held "not . . . an unequivocal invocation"). See generally Smith, supra, at 101 (Rehnquist, J., dissenting) (noting that statements are rarely "crystal-clear"; "differences between certainty and hesitancy may well
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