The U.S. Supreme Court has created a new rule governing the repeat questioning of suspects without a lawyer.
Until now, if a suspect refused to talk without an attorney, police were supposed to leave him alone. Once the suspect was released, it was not clear whether police could make a second attempt at interrogation or how long they had to wait. On Wednesday, the Supreme Court set a bright line of 14 days. After that, police have to readvise a suspect of his rights, but if this time they can get him to talk without his lawyer, the confession can be admitted in court.
The Supreme Court's decision came in the case of a Maryland man name Michael Shatzer, who was in prison for an unrelated crime when police first tried to talk to him about allegations that he had sexually abused his 3-year-old son. When police advised Shatzer of his right to remain silent and to have a lawyer, he refused to talk and asked for a lawyer. Police didn't contact him again.
Two and a half years later, with Shatzer still in prison, police reopened the case and tried again, only this time Shatzer answered questions and gave incriminating answers.
The Maryland Court of Appeals, ruled, though, that those incriminating statements could not be used at trial. The state court cited a 1981 Supreme Court ruling that, without exception, police must stop all questioning once a defendant has asked for a lawyer.
On Wednesday, the U.S. Supreme Court said unanimously that rule does not last for "eternity." Writing for the court, Justice Antonin Scalia conceded that it is unusual for the court to "set forth precise time limits governing police action," but he added, "it is not unheard of." And, said Scalia, a 14-day break in custody "provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody."
George Washington University law professor Stephen Saltzburg, author of a leading text on criminal law, says the rule is a "good" one. It's "totally arbitrary and created out of whole cloth by a majority of the court," he acknowledged, but "it provides very clear guidance to the police" and "gives people a chance to be free from police coercion."
Stanford law professor Jeffrey Fisher says the decision illustrates how the court has moved away from worrying about the coercion of suspects. A generation ago, he says, the court would likely have been closely divided on this question. "It just shows how far to the right the constitutional jurisprudence has moved, at least in this field," said Fisher.
Both criminal law professors agree on one thing. As Saltzburg puts it, "The most surprising thing is that Justice Scalia wrote the majority opinion, because he's constantly criticizing the court for making up rules. And this 14-day rule is a complete judicial creation. It comes out of nowhere."
Justice Scalia didn't really dispute that. But he said it was a practical line for the courts to draw.
Two justices did not join the opinion in full. Justice Clarence Thomas thought there should be no limit on when police can requestion a suspect. And Justice John Paul Stevens objected to the 14-day rule as so short that it made police appear to "lie" when they promise a suspect initially that he has the right to an attorney. The simple solution, suggested Stevens, is to provide such an attorney before trying to requestion a suspect. But he agreed that the 2 1/2-year hiatus in the Shatzer case was sufficiently long that police acted properly.