IMPACT OF MINNICK V. MISSISSIPPI
Kimberly A. Crawford
In Minnick v. Mississippi, (1) the U.S. Supreme Court
announced a rule of law that could have a substantial impact on
the way many law enforcement agencies conduct custodial
nterrogations. Specifically, the Court severely curtailed the
law enforcement officer's ability to reinitiate custodial
nterrogation of suspects who had previously invoked the right
This article examines the Minnick decision and assesses its
mpact. It also suggests legitimate steps officers can take to
limit its adverse effects on criminal investigations.
SUMMARY OF FACTS
Robert Minnick and James "Monkey" Dyess escaped from the
Clarke County Jail in Mississippi and were in the process of
burglarizing a mobile home when they were surprised by the
arrival of the occupants. Using weapons found in the home, the
escapees murdered two of the occupants and eventually fled the
later in California on a fugitive warrant.
Following his arrest, Minnick was interviewed by two FBI
agents. Prior to this interview, he was advised of his Miranda
(2) rights, and although he refused to sign a waiver, he agreed
to answer some questions. (3) During the course of the
nterview, Minnick made some incriminating statements before
telling the agents that he would make a more-complete statement
Following the FBI interview, Minnick met with appointed
counsel. Three days later, Deputy Sheriff J.C. Denham of Clarke
County, Mississippi, arrived in California and attempted to
nterview Minnick. Although once again declining to sign a
ultimately led to Minnick's prosecution for murder.
Prior to trial, Minnick moved to suppress his statements
made to Denham. That motion was denied by the trial court, and
Minnick was sentenced to death after being found guilty on two
counts of capital murder. Minnick's conviction and sentence
However, on review, (5) the U.S. Supreme Court reversed the
THE COURT'S ANALYSIS
The fifth amendment to the U.S. Constitution provides in
to be a witness against himself...." (6) Over 2 decades ago, the
Supreme Court in Miranda v. Arizona (7) held that custodial
nterrogation of an individual creates a psychologically
compelling atmosphere that works against this fifth amendment
In other words, the Court in Miranda presumed that an
ndividual in custody undergoing police interrogation would feel
compelled to respond to police questioning. This compulsion,
The Miranda rule requires that these warnings be given and the
embodied rights waived prior to the initiation of custodial
If Miranda warnings are given, and individuals in custody
choose to exercise their rights by invoking either the right to
must cease immediately. (10) Whether, and under what
conditions, law enforcement officers may subsequently readvise
an individual of his rights and attempt to secure a waiver
In Michigan v. Mosley, (11) the Supreme Court essentially
nterpreted the invocation of the right to silence as a request
for time so a suspect could think clearly about the situation.
Court held that attempts to reinterrogate may occur if given the
time asked for, or if he indicates, by initiating
communications, that he had enough time to think and has changed
As a result, reinterrogations following an invocation of the
by the suspect. In either case, any renewed attempts to
nterrogate a suspect must be preceded by a fresh warning of
Miranda rights and a waiver of those rights.
An invocation of the right to counsel, on the other hand,
necessarily carries with it a different set of procedural
s not simply asking for time to assess the situation; he is,
nstead, requesting the assistance of an attorney. Whether this
consult with an attorney or requires the actual presence of an
attorney during questioning was the issue before the Court in
Minnick's motion to suppress the statements made to Denham
earlier invocation of his right to counsel during the FBI
nterview precluded Denham from making any subsequent attempts
to question him in the absence of counsel. In opposition, the
counsel on two or three occasions prior to meeting with Denham.
necessary to revisit the Miranda decision and its progeny to
nterrogation of an in-custody suspect who has invoked the right
In Miranda, the Court held that "once an individual in
custody invokes his right to counsel, interrogation `must cease
until an attorney is present; at that point, the individual must
Edwards v. Arizona, (15) the Supreme Court attempted to clarify
ts holding in Miranda by announcing the following rule:
"...an accused..., having expressed his desire to
deal with police only through counsel, is not subject
to further interrogation by the authorities until
counsel has been made available to him, unless the
accused himself initiates further communication,
exchanges, or conversations with the police." (16)
Following Edwards, many courts focused on the expression
"made available to him" and concluded that the rule simply
counsel be given the opportunity to consult or confer with his
attorney before law enforcement officers could lawfully attempt
to reinterrogate him. (17) Under this interpretation, there
consulted with an attorney, but only that he had been afforded
the opportunity to do so. The Supreme Court, however, held that
nconsistent with Miranda. Therefore, the Court concluded that
"when counsel is requested [by a suspect in custody],
nterrogation must cease, and officials may not reinitiate
nterrogation without counsel present, whether or not the
accused has consulted with his attorney." (18) Applying this
Minnick had invoked his right to counsel during the FBI
nterview and Deputy Sheriff Denham subsequently reinitiated
nterrogation without counsel being present, Minnick's rights
under Miranda had been violated, and the resulting statements
must be suppressed.
As a result of Minnick, law enforcement officers will be
unable to interrogate a suspect in custody once that suspect has
nvoked the right to counsel unless: 1) The suspect's attorney
s actually present; or 2) the suspect changes his mind and
alternative is frequently unpalatable and the second unlikely,
custodial reinterrogations after requests for counsel may
quickly become rare.
Although not specifically addressed by the Supreme Court,
t is important to note that the rule in Minnick will
undoubtedly apply regardless of the crime that is the intended
topic of the reinterrogation. (20) In other words, when an
ndividual is advised of his Miranda rights and invokes the
counsel under these conditions implies that the individual will
not deal with the police on any criminal matter without the
benefit of counsel. Consequently, once a suspect invokes the
officers are prohibited from initiating further custodial
nterrogation involving the original crime or any other criminal
act without complying with the dictates of Minnick by having the
Moreover, the rule in Minnick appears to be perpetual; once
a suspect in custody invokes the right to counsel, the
custody continues. Conceivably, a suspect who invokes the right
to counsel during the early stages of custody and is thereafter
unable to make bond could be shielded from all further
nterrogation throughout the remainder of the prosecution of the
case and for as long as he is incarcerated. (21)
LIMITING THE ADVERSE EFFECTS OF "MINNICK"
Writing the dissenting opinion in Minnick, Justice Scalia
law enforcement when he made the following statement:
"Today's ruling, that the invocation of a right to counsel
permanently prevents a police-initiated waiver, makes it
largely impossible for the police to urge a prisoner who
has initially declined to confess to change his mind--or
indeed, even to ask whether he has changed his mind." (22)
While the Minnick decision may hamper law enforcement efforts to
conduct custodial interrogations, there are certain legitimate
effects on criminal investigations.
The first step law enforcement officers should take is to
ensure that they understand and take advantage of the procedural
to silence as opposed to invoking the right to counsel. Because
there is a significant difference between the procedural
counsel and one who merely expresses a desire to remain silent,
law enforcement officers should be certain they know which right
a suspect is invoking. If, following the advice of rights, the
nvoking his rights, but the officers are unsure of which right
s being invoked, the officers could conceivably follow up by
asking the suspect if he is, in fact, invoking the right to
officers should immediately stop questioning. However, since
only the right to silence has been invoked, a second attempt to
obtain a waiver may be made after waiting a reasonable period of
Similarly, when a suspect is being read his rights for the
first time, it may be best to avoid encouraging a blanket
nvocation of rights that could occur if the entire list of
If the suspect indicates a desire to waive the right to
the right to remain silent and chooses to invoke that right,
then no further advice of rights need be given at that time and
the interrogation should cease.
However, a subsequent attempt to interview a suspect could
be made after waiting a reasonable period of time, since only
the right to silence was invoked. By refraining from advising a
been waived, the law enforcement officer may reduce the
Along these same lines, law enforcement officers should be
extremely careful when documenting an invocation of rights.
Because the procedural safeguards offered to a suspect depend on
the specific right invoked, officers should maintain accurate
establish which right was invoked and demonstrate that they
afforded the suspect the appropriate safeguards.
Finally, law enforcement officers should be careful not to
apply this rule in instances where it is not required. For
example, if a suspect makes a request for counsel at a judicial
are not barred from interviewing that suspect concerning other
The Court in Minnick based its decision on Miranda, which
s intended to govern custodial interrogations and protect the
fifth amendment privilege against self-incrimination. Minnick
In Michigan v. Jackson, (23) the Court held that an
ndividual's request for the appointment of counsel at an
nitial appearance constitutes an invocation of the sixth
amendment right to counsel, which only precludes
ndividual was charged. (24) And recently, in McNeil v.
Wisconsin, (25) the Court reaffirmed that the invocation of the
crime-specific and does not make suspects "unapproachable by
even though they had never expressed any unwillingness to be
Thus, a suspect who invokes the sixth amendment right to
counsel by requesting the appointment of an attorney at an
nitial appearance cannot, thereafter, be subjected to
of the sixth amendment rights is not the same as an invocation
of the fifth amendment rights, Minnick would not preclude
the Miranda safeguards for custodial interrogation are
The Supreme Court's decision in Minnick is likely to cause
many law enforcement agencies to change their policies and
law enforcement officers be permitted to reinitiate custodial
nterrogation of a suspect who had previously invoked the right
to counsel without having the suspect's attorney present. When
assessing their policies, however, law enforcement agencies
(1) 111 S.Ct. 486 (1990) (hereinafter cited as Minnick).
(2) Miranda v. Arizona, 384 U.S. 436 (1966) (hereinafter
cited as Miranda).
(3) The FBI report indicates Minnick waived his rights
and said he would not answer "very many" questions, Minnick,
(4) Minnick v. State, 551 So.2d 77 (Miss. 1988).
(5) The Supreme Court granted certiorari at 110 S.Ct. 1921
(6) U.S. Const. Amend. V.
(7) Miranda, supra note 2.
(8) Id. at 436.
(9) Not all forms of custodial interrogation create the
compelling atmosphere that Miranda was designed to protect
against. See, e.g., Illinois v. Perkins, 110 S.Ct. 2394 (1990).
(10) Miranda, supra note 2, at 474.
(11) 423 U.S. 96 (1975).
(12) In Mosley, 2 hours were considered to be a sufficient
(13) Minnick also claimed that the statements in question
Reversing Minnick's conviction on fifth amendment grounds, the
Court found it unnecessary to address the sixth amendment issue.
(14) Minnick, supra note 1, at 489, quoting Miranda, supra
note 2, at 474.
(15) 451 U.S. 477 (1981).
(16) Id. at 485, 486.
(17) See, e.g., United States v. Skinner, 667 F.2d 1306
(9th Cir. 1982), cert. denied, 103 S.Ct. 3569 (1983), (court
found defendant who was released after requesting counsel, then
therefore, his rights were satisfied). See also, United States
v. Halliday, 658 F.2d 1103 (6th Cir. 1980), cert. denied, 102
S.Ct. 978 (1981).
(18) Minnick, supra note 1, at 491.
(19) In Minnick, the Court stated that "Edwards does not
foreclose finding a waiver of Fifth Amendment protections after
counsel has been requested, provided the accused has initiated
the conversation or discussions with the authorities...."
Minnick, supra note 1, at 492.
(20) See, Arizona v. Roberson, 108 S.Ct. 2093 (1988),
counsel is effective against all topics of custodial
(21) In a prison setting, the perpetuality of this rule
could make it virtually impossible to conduct routine
nterrogations of inmates suspected of committing new crimes
(22) Minnick, supra note 1, at 496 (Scalia, J., dissenting).
(23) 106 S.Ct. 1404 (1986).
(24) The Court in Jackson found that the rule in Edwards
applied in the sixth amendment context. Consequently, it can be
amendment context if initiated by the suspect or done in the
(25) ___S.Ct.___ (1991).
(26) ___S.Ct.___, ___ (1991).
(27) At the present time, it is unclear whether a
non-custodial suspect, who previously invoked his sixth
amendment right to counsel, could be requested to waive that
been applied in the sixth amendment context, and Minnick is
obtain a waiver of a previously invoked sixth amendment right to
counsel outside the presence of the suspect's attorney.