Cite as: 530 U. S. 428 (2000)
Scalia, J., dissenting
scribed in the Miranda warning, is anything other than a volitional act. See Miranda, supra, at 533-534 (White, J., dissenting). And even if one assumes that the elimination of compulsion absolutely requires informing even the most knowledgeable suspect of his right to remain silent, it cannot conceivably require the right to have counsel present. There is a world of difference, which the Court recognized under the traditional voluntariness test but ignored in Miranda, between compelling a suspect to incriminate himself and preventing him from foolishly doing so of his own accord. Only the latter (which is not required by the Constitution) could explain the Court's inclusion of a right to counsel and the requirement that it, too, be knowingly and intelligently waived. Counsel's presence is not required to tell the suspect that he need not speak; the interrogators can do that. The only good reason for having counsel there is that he can be counted on to advise the suspect that he should not speak. See Watts v. Indiana, 338 U. S. 49, 59 (1949) (Jackson, J., concurring in result in part and dissenting in part) ("[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances").
Preventing foolish (rather than compelled) confessions is likewise the only conceivable basis for the rules (suggested in Miranda, see 384 U. S., at 444-445, 473-474), that courts must exclude any confession elicited by questioning conducted, without interruption, after the suspect has indicated a desire to stand on his right to remain silent, see Michigan v. Mosley, 423 U. S. 96, 105-106 (1975), or initiated by police after the suspect has expressed a desire to have counsel present, see Edwards v. Arizona, 451 U. S. 477, 484- 485 (1981). Nonthreatening attempts to persuade the suspect to reconsider that initial decision are not, without more, enough to render a change of heart the product of anything other than the suspect's free will. Thus, what is most remarkable about the Miranda decision—and what
449
Page: Index Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 NextLast modified: October 4, 2007