Once an in-custody suspect invokes his Fifth Amendment right to counsel, police are barred from initiating further interrogative efforts on any matter while the suspect remains in custody, unless the suspect has been provided with counsel and counsel is present. Failure on the part of police to adhere to this rule creates an irrebuttable presumption that any subsequent in-custody waiver of the right to counsel is involuntary.
This is the holding from Edwards v. Arizona, 451 U.S. 477 (1981), and is commonly referred to as the “Edwards rule.” The Edwards rule is not constitutionally mandated. Rather, it is a prophylactic rule created by the Supreme Court to ensure an in-custody suspect’s privilege against self-incrimination is adequately protected.
The Edwards Rule and Custody Status
But what if an in-custody suspect invokes his right to counsel and is then released from custody? May police then approach him and attempt to interrogate him? The answer is “yes” for the simple reason that he does not have a Fifth Amendment right to counsel when he is out of custody. Yes, he still retains the privilege against self-incrimination, which means his statement must be voluntary. But he does not enjoy the constitutional right to the presence of counsel. The Edwards rule is therefore inapplicable.
What if our in-custody suspect invokes his right to counsel, is promptly released from custody, and is then re-arrested on a different matter the next day? May police initiate interrogative efforts during this second custodial period? The answer here is “no.” The Edwards rule is still in effect because he invoked during a previous period of custody (here, one day ago). The irrebuttable presumption of involuntariness as to any waiver remains.
The Need for Temporal Limits
Does this mean that once an in-custody suspect invokes his right to counsel, police are barred from initiating in-custody interrogation forever? Extending the Edwards rule to its logical conclusion would suggest the answer is “yes.” Such reductio ad absurdum proves this cannot be correct. This is where the 14-day rule from Maryland v. Shatzer, 559 U.S. 98 (2010), comes into play.
The Shatzer 14-Day Rule
The Shatzer 14-day rule is this: The Edwards presumption of involuntariness ends once the suspect has experienced a 14-day break in custody. In the scenario above, the suspect found himself back in custody after only a day. He still has Edwards protection. But if instead he was arrested 15 days after his initial release from custody, he would no longer be protected by Edwards and police may initiate in-custody interrogation.
That does not mean his prior invocation of the right to counsel (15 days earlier) is irrelevant after 14 days. It simply means there is no longer an irrebuttable presumption that any waiver of his right to counsel was invalid. A court may still consider the previous invocation as a factor in determining whether his waiver was voluntary during the second interrogation.
