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Seas, bogs, and police interrogation. (Supreme Court Review).

In Texas v. Cobb, the U.S. Supreme Court resolved a knotty problem of interrogation law. (1) The problem arises when a suspect has been formally charged (2) with one crime and is suspected by police of another, related crime.

The Sixth Amendment right to counsel attaches when a suspect is formally charged with a crime. The police may not question the accused about that crime without his or her lawyer's permission, (3) but they may ask questions about a different crime. (4) The question before the Cobb Court was: When is the second crime considered different from the first?

The strongest, clearest pro-government position the five-justice majority could have taken would have been to say that the question can be answered by reading the indictment or by finding out on what charges the defendant was arraigned. Any crime that is not formally charged is "different" by definition.

Instead of this clear--but easy to evade--test, the Court held that the answer lies in an approach announced in a 1932 double jeopardy case, Blockburger v. United States. (5) In that case, the Court held that so long as each offense has an element that the other lacks, they are not the same. In other words, police may question a defendant charged with crime A about crime B so long as one of these is not a lesser-included offense of the other.

The defendant in Cobb was charged with burglarizing a home from which a woman and her baby daughter had disappeared. Cobb, who confessed to the burglary, was indicted for it and received court-appointed counsel. Cobb denied knowledge of the disappearances and wasn't charged in connection with them.

Many months later, while free on bond for the burglary charge, Cobb told his father that he had murdered the woman and her daughter. The father told the police, who arrested Cobb and gave him Miranda warnings. The police did not notify Cobb's counsel that he was in custody.

Cobb confessed to the murders and led police to the bodies. He was subsequently convicted of capital murder for killing two victims in one crime.

The Texas Court of Criminal Appeals reversed the conviction, citing the U.S. Supreme Court's decision in Michigan v. Jackson (6) for the proposition that "once the right to counsel attaches to the offense charged [in this case, the burglary], it also attaches to any other offense that is very closely related factually to the offense charged." (7) Consequently, because the murders had taken place during the burglary, the two crimes were sufficiently related to bar police from questioning Cobb about the murders unless his lawyer was present.

In Jackson, two murder suspects had asked at arraignment for counsel to be appointed. Before counsel appeared, the police gave the defendants their Miranda warnings and questioned them about the pending charges. The defendants confessed and were convicted.

On defendant Jackson's appeal, the Supreme Court held that because his Sixth Amendment right to counsel attached when formal proceedings--in this case, arraignment--against him started, he could not be interrogated in the absence of counsel about the crimes he had been charged with.

This rule was derived from Edwards v. Arizona. It had held that when a suspect (against whom formal proceedings had not begun) requests counsel at interrogation, the Fifth Amendment requires that questioning cease until a lawyer can be provided, (8) unless that lawyer permits interrogation to proceed in his or her absence.

Jackson did not consider to what extent a defendant could be interrogated for a crime different from the one for which he or she had been charged. However, two other Supreme Court cases seemed to suggest that crimes that were factually related to the one for which the right to counsel had attached could not be the subject of police interrogation unless the suspect's lawyer was present.

In the first, Brewer v. Williams, the defendant had been charged with kidnaping a girl. (9) After promising his counsel that they would not interrogate him, police took Williams on a long drive back to the city where the crime had occurred. The police engaged him in conversation (the famous "Christian burial speech"), during which Williams admitted to killing the girl. He was tried for murder and convicted.

On appeal, the U.S. Supreme Court deemed the speech tantamount to interrogation and in violation of Williams's Sixth Amendment right to counsel. Williams had been charged only with kidnapping at the time of the interrogation, but the Court threw out his murder conviction. As the Cobb dissenters pointed out, the Williams Court must have assumed (although it did not directly decide) that the right to counsel extended to questioning about the related crime of murder. (10)

Likewise, in Maine v. Moulton, the defendant, who had been charged with theft, was lured into a discussion of his crimes by a codefendant who was cooperating with police and was "wired." (11) The Supreme Court found that this was a violation of Moulton's Sixth Amendment right to counsel, and it reversed not only his theft conviction but also a conviction for a factually related burglary that he had not been charged with at the time the discussion took place. Although the Court said "incriminating statements pertaining to other crimes as to which the Sixth Amendment right has not yet attached" would be admissible, (12) it is clear from the holding that this statement was limited to crimes that were unrelated to the pending charges. (13)

Still, the Cobb majority correctly observed that the Court had not yet directly addressed the precise issue before it: whether police could question a defendant about a factually related crime that he or she had not been charged with. Moreover, a subsequent case, McNeil v. Wisconsin, seemed to answer this question in a pro-government way by holding that the Sixth Amendment right to counsel is "offense specific." (14) But McNeil involved questioning about a crime that was totally different from the charged crime.

As noted, the majority did not take the easy road by simply saying, "Look at the charging instrument. If the crime for which the defendant is to be questioned is not listed in the indictment, or charged at arraignment, then the defendant has no right to counsel as to that crime." Instead, the majority applied the Blockburger test to hold that if each crime has an element that the other does not, they are not considered the same crime and questioning is permissible.

Applying this to the crimes in Cobb, burglary obviously has an element that murder does not--entering with intent to commit a crime. Likewise, capital murder, as charged in that case, has an element that burglary lacks--killing two people. (15) Therefore, the post-arraignment questioning was permissible.

But, the Cobb dissent complained, even when applied by lawyers in double jeopardy cases, the Blockburger test has been called--by Chief Justice William Rehnquist himself--"a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." (16) The dissenters predicted that when the police apply that test, it will turn into Milton's much worse "Serbonian Bog ... Where Armies whole have sunk." (17)

The chief justice rejoined, less colorfully, that the dissent's approach would "defy simple application":
 The dissent seems to presuppose that the officers will be able to tailor
 their investigation to avoid addressing factually related offenses. Such an
 assumption, however, ignores the reality that police often are not yet
 aware of the exact sequence and scope of events they are
 investigating--that is why police must investigate in the first place. (18)

In terms of the workability of the two approaches, it would seem that the dissenters have the edge. The police, as they were in Cobb, will usually, though not always, be aware of whether the crime about which they are questioning a suspect is related to a charged crime or not. (What if the suspect committed the second crime while escaping from the first?) They will be much less likely to know whether "each crime has an element that the other does not." Sometimes it will be impossible for them to know this because the second crime might be charged in more than one way.

In Cobb, for example, the police had no way of knowing whether the prosecutor would charge felony murder or murder with malice aforethought. Had Cobb somehow killed the victims accidentally during the burglary, felony murder might have been the only murder charge available. But burglary is a lesser-included offense of a charge of felony murder premised on a burglary, and consequently the interrogation ban would apply. But if, as in Cobb, the prosecutor charged murder with malice aforethought, the ban would not apply. Police often won't know what the charge will be until after they have interrogated the suspect.

Perhaps even more important in evaluating the conflicting views of the dissent and the majority is that the police won't care. Put yourself in the shoes of the police. You have a suspect, charged with crime A, whom you would like to question about crime B. If you ask the lawyer first, you won't get to question the suspect outside the lawyer's presence (unless the lawyer is convinced that the suspect has nothing incriminating to say).

You have no idea whether crime A and crime B "each has an element that the other does not." What do you do? The answer is likely to be: Question him! Rake him over the coals! Make him sweat! (But only after first giving him Miranda warnings.)

If a court later concludes that crime B was "the same," the most you lose is a confession to crime B that you wouldn't have been able to get in the first place. And, in many cases, a reasonably clever prosecutor can charge crime B in such a way that it won't be considered the same as crime A. Finally, if the interrogation, later deemed illegal, leads you to physical evidence, that evidence will not be suppressed if it would have been "inevitably discovered" without the confession. (19)

If the majority approach is confusing and can often be circumvented by the police, is it a bad test? It certainly would have been simpler for the Court to have taken the harder line that "if it's not specifically charged, it's not the same offense." This would have made it easy for police.

But it also would have seriously undermined the right to counsel by giving police a huge loophole. For example, prosecutors could leave one lesser-included offense (crime C) out of the indictment that charged crimes A, B, and D. The police could then question the defendant "only" about crime C while gathering information useful to the prosecution of the other crimes as well.

So perhaps we shouldn't be too hard on the majority for trying to adopt a more nuanced, although more complicated, approach. Further, the ease with which police can get around this restriction is a bad thing only if we regard warned, voluntary confessions as undesirable. The majority explicitly does not, pointing out that the suspect will still be entitled to Miranda warnings and the right to cut off questioning by refusing to speak without counsel, (20) and noting that "the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good." (21) In short, the majority was aware of the problems with the test it applied but believed that it was the best approach.

The dissent complains that the "Christian burial speech" case, which has always seemed a clear instance of police abuse, would now come out differently. It is true that under Cobb, the fact that Williams had a right to counsel as to the kidnapping charge would not protect him from interrogation on the murder charge. But there are several reasons why Williams would still come out the same way even after Cobb.

The first is that, unlike Cobb, Williams was not given his Miranda warnings before the interrogation in the police car. Second, Williams had been given Miranda warnings earlier and had indicated that he didn't want to speak to the police without counsel. Thus, although Williams might not have a Sixth Amendment right to counsel, his Fifth Amendment rights would still have been violated. Third, the police had promised counsel that they would not interrogate him during the car trip, so they may have violated Williams's due process rights when they broke that promise.

Finally, consider the concurring opinion of Justice Anthony Kennedy, who would have overruled Jackson. (22) Kennedy was joined by Justices Antonin Scalia and Clarence Thomas. While I agree with Kennedy that Jackson was a bad decision, I believe that its problems have now been resolved by Cobb. Jackson should have held that once a suspect becomes a defendant (that is, when formal proceedings have begun), the police can't question him or her unless counsel is present.

But Jackson made the defendant's freedom from interrogation depend on the fact that at arraignment he "requested that counsel be appointed for him because he was indigent." (23) The Court treated this as an Edwards-type request for counsel that would bar interrogation by police, even though the defendant did not intend this--he simply wanted court-appointed counsel for trial. Under the quirky Jackson holding, a defendant for whom counsel was appointed at arraignment (and who therefore didn't have to "ask" for counsel) would not be protected from police interrogation.

The Cobb holding suggests that a person's Sixth Amendment right to counsel attaches automatically when formal proceedings begin, since Cobb, unlike Jackson, apparently never said anything about wanting counsel. A defendant who is formally charged with crimes may not be questioned for those crimes without counsel's permission, regardless of whether the defendant has said anything about counsel at arraignment or otherwise. Without this ban, attachment of the right to counsel would have little meaning.

Nor can the police ask the defendant to waive the right to counsel's presence, although if the defendant "initiates" conversation about the crime, the police may be able to begin questioning. (24) This protection likewise extends to crimes that are "the same" as the charged crimes, as Cobb holds. But police may question a charged defendant as to crimes that are not the same without seeking permission from counsel.


(1.) 121 S. Ct. 1335 (2001).

(2.) A formal charge may occur by indictment or information, or because the defendant has been arrested and arraigned, as in Cobb. See also Michigan v. Jackson, 475 U.S. 625, 629 (1986).

(3.) Massiah v. United States, 377 U.S. 201 (1964).

(4.) Maine v. Moulton, 474 U.S. 175, 179-80 (1985).

(5.) 284 U.S. 299 (1932).

(6.) 475 U.S. 625.

(7.) Cobb, 121 S. Ct. 1335, 1340 (citations omitted).

(8.) 0451 U.S. 477, reh'g denied, 452 U.S. 973 (1981).

(9.) 430 U.S. 387 (1977).

(10.) Cobb, 121 S. Ct. 1335, 1349 (Breyer, J., dissenting).

(11.) 474 U.S. 159 (1985).

(12.) Id. at 180 n.16.

(13.) As the Cobb dissent points out. 121 S. Ct. 1335, 1349 (Breyer, J., dissenting).

(14.) 501 U.S. 171 (1991).

(15.) Cobb, 121 S. Ct. 1335, 1344.

(16.) Id. at 1350 (Breyer, J., dissenting) (quoting Albernaz v. United States, 450 U.S. 333, 343 (1981)).

(17.) Id.

(18.) Id. at 1343.

(19.) Nix v. Williams, 467 U.S. 431 (1984).

(20.) Cobb, 121 S. Ct. 1335, 1342.

(21.) Id. at 1343 (citations omitted).

(22.) Id. at 1344.

(23.) Jackson, 475 U.S. 625, 627.

(24.) See Oregon v. Bradshaw, 462 U.S. 1039 (1983).

Craig M. Bradley is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at
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Date:Oct 1, 2001
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