176
Kennedy, J., concurring
Fifth Amendment right unless the suspect makes a clear and unambiguous assertion of the right to the presence of counsel during custodial interrogation. Davis v. United States, 512 U. S. 452, 459 (1994). Where a required Miranda warning has been given, a suspect's later confession, made outside counsel's presence, is suppressed to protect the Fifth Amendment right of silence only if a reasonable officer should have been certain that the suspect expressed the unequivocal election of the right.
The Sixth Amendment right to counsel attaches quite without reference to the suspect's choice to speak with investigators after a Miranda warning. It is the commencement of a formal prosecution, indicated by the initiation of adversary judicial proceedings, that marks the beginning of the Sixth Amendment right. See ante, at 167-168 (quoting McNeil v. Wisconsin, 501 U. S. 171, 175 (1991)). These events may be quite independent of the suspect's election to remain silent, the interest which the Edwards rule serves to protect with respect to Miranda and the Fifth Amendment, and it thus makes little sense for a protective rule to attach absent such an election by the suspect. We ought to question the wisdom of a judge-made preventative rule to protect a suspect's desire not to speak when it cannot be shown that he had that intent.
Even if Jackson is to remain good law, its protections should apply only where a suspect has made a clear and unambiguous assertion of the right not to speak outside the presence of counsel, the same clear election required under Edwards. Cobb made no such assertion here, yet Justice Breyer's dissent rests upon the assumption that the Jackson rule should operate to exclude the confession no matter. There would be little justification for this extension of a rule that, even in a more limited application, rests on a doubtful rationale.
Justice Breyer defends Jackson by arguing that, once a suspect has accepted counsel at the commencement of ad-
Page: Index Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 NextLast modified: October 4, 2007