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COMMENTS:

MOTHER MIGHT NOT ALWAYS


KNOW BEST: EDWARDS V. ARIZONA,
VAN HOOK V. ANDERSON, AND THE
CASE FOR THIRD-PARTY INITIATION
EXCLUSIVELY FROM ATTORNEYS*

N. Anthony Palumbo**
Abstract: In the high-stakes context of police custodial interrogation, what
mother knows is best may result in the worst possible situation for her
child. For example, after her son has invoked his Fifth Amendment privilege
to have counsel present during interrogation, a mothers unprovoked
telephone call to the police that her son wants to confess to a murder may
ultimately sacrifice her sons constitutionally protected right against self-
incrimination.

The U.S. Supreme Court in Edwards v. Arizona declared a bright-line


prophylactic rule that, once an accused invokes his Fifth Amendment right to
have counsel present during custodial interrogation, the police may not re-
interrogate him until his counsel has been made available, unless the
accused himself initiates further communication, exchanges, or
conversations with the police. However, the Court is silent on what
Edwards requires when a third party initiates further police contact.

In Van Hook v. Anderson, the Sixth Circuit ruled that a third party, namely
the suspects mother, has the authority to initiate further communications

* NEW ENGLAND LAW REVIEWS contribution to the American Society of Writers on Legal
Subjects (Scribes) 2008-2009 Notes-and-Comments Competition.
** Candidate for Juris Doctor, New England School of Law (2009). B.A., Philosophy,
magna cum laude, University of Central Florida (2005).

61
62 NEW ENGLAND LAW REVIEW [Vol. 43:61

with the police on behalf of the suspect. An analysis of the Supreme Courts
custodial interrogation jurisprudence reveals that the Van Hook courts
holding erodes the suspects Fifth Amendment right to have counsel present
during interrogation.

In contrast to Van Hook, courts should strictly limit the class of third
parties permitted to initiate further police communication to the suspects
attorney. This approach furthers the policy in Edwards to protect the suspect
from police badgering and overreaching in the custodial interrogation
environment. First, a rule only permitting third-party initiations from the
suspects counsel comports with the Supreme Courts emphasis on the
significance attributed to the attorneys presence during custodial
interrogation because the attorney can help to prevent police overreaching in
custodial interrogation. Second, excluding non-lawyer third-party initiations
helps to ensure the preservation of Edwards bright-line prophylactic rule by
reducing ambiguity in police decisions to continue to interrogate a suspect.

INTRODUCTION
It is often the case that mother knows best. Yet, in the context of
police custodial interrogation, mothers knowledge is likely to fail. For
example, after her son has invoked his Fifth Amendment right to have
counsel present during interrogation, 1 a mothers unprovoked telephone
call to the police that her son wants to confess to a murder, although
perhaps accurate and well-intentioned, may sacrifice his constitutionally
guaranteed right to counsel. As such, a mother knows best approach is
likely to be against an accuseds interests. Nonetheless, within the context
of custodial interrogation, the law provides that an attorneys unique legal
training can adequately safeguard the suspects Fifth Amendment rights. 2
The U.S. Supreme Court in Edwards v. Arizona 3 declared a bright-
line prophylactic rule 4 that once an accused invokes his Fifth Amendment
right to have counsel present during custodial interrogation, the police may
not re-interrogate him until his counsel has been made available, unless
the accused himself initiates further communication, exchanges, or
conversations with the police. 5 In subsequent cases, the Supreme Court
developed some of the parameters of what constitutes an initiation under
Edwards 6 in addition to refining the various contexts in which the rule

1. See Miranda v. Arizona, 384 U.S. 436, 474 (1966).


2. See infra Part I.
3. 451 U.S. 477 (1981).
4. See infra note 41 and accompanying text.
5. 451 U.S. at 484-85.
6. See infra notes 44-48 and accompanying text.
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 63

applies. 7 However, despite the Courts extensive treatment of what the


Edwards rule requires when the suspect himself initiates further contact
with the police, 8 the Court is silent on what Edwards requires when a third
party initiates further police contact. 9
In Van Hook v. Anderson, the Sixth Circuit ruled that a third party,
namely the suspects mother, has the authority to initiate further
communications with the police on behalf of the suspect. 10 An analysis of
the Supreme Courts custodial interrogation jurisprudence reveals that the
Van Hook court got it wrong. In effect, the Van Hook courts holding
effectively erodes the suspects Fifth Amendment right to have counsel
present during interrogation. 11 In the aftermath of Edwards and its progeny
with no Supreme Court guidance directly addressing the issue, lower courts
are left with the tough decision of how to evaluate third-party initiations.
However, despite the difficulty of the task, the Courts copious
development of precedent provides the Van Hook court with the proper
direction. 12
As a more sensible alternative to this holding, courts should strictly
limit the class of third parties permitted to initiate further police
communication to the suspects attorney. Compared to the unrestricted
approach in Van Hook, this approach better adheres to the principles
expounded in the Supreme Courts custodial interrogation jurisprudence as
developed in Edwards and its progeny in two distinct ways. First, a rule
only permitting third-party initiations from the suspects counsel comports
with the Supreme Courts emphasis on the significance attributed to the
attorneys presence during custodial interrogation. 13 Second, excluding
non-lawyer third-party initiations helps to ensure the preservation of
Edwards bright-line prophylactic rule. 14
Part I of this Comment explores the Supreme Courts decision in
Edwards, 15 which serves as the foundation for the proposed limitation of
third-party initiations. Part I further discusses how the Supreme Courts
post-Edwards cases expanded upon Edwards bright-line prophylactic
rule. 16 In Part II, this Comment examines how the Van Hook court applied

7. See infra Part I.B.


8. See infra Part I.B.
9. See Van Hook v. Anderson, 488 F.3d 411, 417 (6th Cir. 2007).
10. See id. at 422-43.
11. See Miranda v. Arizona, 384 U.S. 436, 474 (1966).
12. See discussion infra Part I.
13. See infra Part III.A.
14. See infra Part III.B.
15. See infra Part I.A.
16. See infra Part I.B.
64 NEW ENGLAND LAW REVIEW [Vol. 43:61

Edwards to the context of the third-party initiation before it. 17 From an


examination of the Van Hook courts holding, this Comment evaluates the
majoritys opinion and puts forth the case for limiting third-party
communications exclusively to the suspects counsel for initiation
purposes. 18

I. BACKGROUND OF RELEVANT LAW

A. The Foundation Against Police Initiation: Edwards v.


Arizona 19
In Edwards v. Arizona, the Supreme Court considered whether the
defendant Edwards confession should be suppressed where the police
obtained it through custodial interrogation 20 after he had previously
requested counsel. 21 The police arrested Edwards on charges of robbery,
burglary, and first-degree murder. 22 After the police read him his Miranda
warnings and he answered questions regarding the charges against him,
Edwards requested an attorney. 23 This stopped police interrogation and he
was detained in county jail. 24 Two detectives arrived the next morning and
asked to speak with him. 25 He refused, but after the guard told him that he
was required to talk with the detectives, Edwards complied and met with
the detectives. 26 Despite being read his Miranda rights again, Edwards
opted to participate in the interrogation and, consequently, he incriminated
himself. 27 The police never supplied him with counsel. 28 At trial, Edwards
confession was admitted and he was convicted of all the charges against
him. 29

17.See infra Part II.


18.See infra Part III.
19.451 U.S. 477 (1981).
20.Id. at 477; see Rhode Island v. Innis, 446 U.S. 291, 301 (1980) ([T]he term
interrogation under Miranda refers not only to express questioning, but also to any words
or actions on the part of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an incriminating
response from the suspect.) (footnote omitted).
21. Edwards, 451 U.S. at 478.
22. Id.
23. Id. at 479.
24. Id.
25. Id.
26. Id.
27. Edwards, 451 U.S. at 479.
28. Id. at 482.
29. Id. at 480.
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 65

The Supreme Court in Edwards expanded on its earlier ruling in


Miranda v. Arizona that once a suspect invokes his Fifth Amendment right
to have counsel present during interrogation, the police must immediately
cease interrogation until an attorney is present. 30 Specifically, the Edwards
Court, on certiorari review from the Arizona Supreme Court, held that an
accused, . . . having expressed his desire to deal with the 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. 31 In support of its holding, the Edwards Court affirmed the
Supreme Courts jurisprudence, both before 32 and after Miranda, 33 in
prescribing special protective considerations when the suspect asks for
counsel. 34 To this end, the Court reasoned that the abovementioned rule, as
outlined in Miranda and developed by its progeny, 35 would be violated if
an extension were not granted to bar police re-interrogation of a suspect in
custody after he clearly requested counsel. 36
A suspect may waive his previously invoked right to counsel. 37
Nonetheless, the Court was adamant that when an accused has invoked his
right to have counsel present during custodial interrogation, a valid waiver
of that right cannot be established by showing only that he responded to
further police-initiated custodial interrogation even if he has been advised

30. Id. at 481-82 (citing Miranda v. Arizona, 384 U.S. 436, 474 (1966)).
31. Id. at 484-85.
32. See id. (citing Massiah v. United States, 377 U.S. 201 (1964) (holding that the
accuseds Sixth Amendment right to counsel applies when he has been indicted and that this
right is violated when the police deliberately elicit incriminating admissions from the
accused outside of his counsels presence)).
33. See Edwards, 451 U.S. at 485 (citing Rhode Island v. Innis, 446 U.S. 291, 300
(1980) (ruling that under Miranda a suspect has an undisputed right to remain silent without
the threat of interrogation until he has consulted with a lawyer); Fare v. Michael C., 442
U.S. 707, 724 (1979) (holding that minor defendants request to speak with his probation
officer did not constitute an invocation of his Fifth Amendment right to be free from
compelled self-incrimination and that his request did not require suppression of his
subsequent incriminating statements under Miranda); Brewer v. Williams, 430 U.S. 387,
404 (1977) (holding that a suspects response to express or subtle interrogation techniques
should not constitute a valid waiver of his Sixth Amendment counsel rights); Michigan v.
Mosley, 423 U.S. 96, 104 n.10 (1975) (ruling that the request to remain silent and the
request for counsel involve different protections and that the suspect can only halt
interrogation until counsel is present by requesting counsel)).
34. See Edwards, 451 U.S. at 484-85 ([T]he Court has strongly indicated that
additional safeguards are necessary when the accused asks for counsel.).
35. See, e.g., Mosley, 423 U.S. at 100.
36. See Edwards, 451 U.S. at 485.
37. See id. at 484, 486 n.9.
66 NEW ENGLAND LAW REVIEW [Vol. 43:61

of his rights. 38 This determination is based on whether the suspect


knowingly and intelligently waived his right under the totality of the
circumstances, with particular significance attributed to whether the suspect
initiated the further conversations with the police. 39 Applying this analysis
to the facts before it, the Court concluded that, since Edwards had not been
appointed counsel and the police clearly initiated the contact, his Fifth
Amendment rights were violated and his confession should be
suppressed. 40

B. The Supreme Courts Post-Edwards Development of Suspect


Initiation
The Edwards Courts extension of Miranda constituted a per se
prophylactic rule 41 to protect the suspect during custodial interrogation.42
Stated again, once a suspect has invoked his right to counsel, the police
shall not interrogate the suspect until his counsel is present, unless the
accused himself initiates further communication . . . with the police. 43
With the development of a new prophylactic rule, the Supreme Court in
subsequent cases shed some light on the nuances and contours of what
constitutes a suspects initiation of further police communications.
In Oregon v. Bradshaw, a four-Justice plurality opinion penned by
Justice Rehnquist, the Court defined what constitutes a suspects
initiation. 44 The Bradshaw Court questioned the wisdom of formulating a
legal standard that overemphasized subtle distinctions in definitions of

38. Id. at 484.


39. Id. at 486 n.9.
40. Id. at 487.
41. Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983) (Rehnquist, J., plurality opinion)
(The rule in Edwards was in effect a prophylactic rule, designed to protect an accused in
police custody from being badgered by police officers.); see also id. at 1054-55 n.2
(Marshall, J., dissenting) ([E]ight Justices manifestly agree that Edwards did create a per se
rule.).
42. New York v. Quarles, 467 U.S. 649, 654 (1984) (The prophylactic Miranda
warnings therefore are not themselves rights protected by the Constitution but [are] instead
measures to insure that right against compulsory self-incrimination [is] protected. (quoting
Michigan v. Tucker, 417 U.S. 433, 444 (1974)) (alterations in original)).
43. Edwards, 451 U.S. at 484-85.
44. 462 U.S. at 1045-46; see also id. at 1055 (Marshall, J., dissenting) (I agree with the
plurality that, in order to constitute initiation under Edwards, an accuseds inquiry must
demonstrate a desire to discuss the subject matter of the criminal investigation.). Although,
strictly speaking, Justice Marshalls definition of initiation differs from the pluralitys
definition, the difference is not significant. See United States v. Whaley, 13 F.3d 963, 967
(6th Cir. 1994).
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 67

initiate. 45 In that spirit, the Court furnished a general standard that the
police are authorized to re-interrogate a suspect under Edwards where a
suspect evince[s] a willingness and a desire for a generalized discussion
about the investigation. 46 Basic questions by the suspect about the
routine incidents of the custodial relationship, such as asking to use the
bathroom or to use the telephone, do not qualify as valid initiations by the
accused. 47 Such mundane inquiries cannot be a valid initiation because no
reasonable officer would interpret them as relating to the investigation. 48
The Supreme Court further extended the procedural Fifth Amendment
protections of Edwards in Arizona v. Roberson. 49 In Roberson, the suspect
invoked his right to counsel during an interrogation about a particular
burglary. 50 Later, another officer, unaware of the suspects previous request
for an attorney, interrogated him about a second burglary. 51 During this
later interrogation, the suspect incriminated himself in the second
burglary. 52 The Court struck the confession and held that the Edwards ban
on police initiation prohibits the police from interrogating a suspect about
another investigation where the suspect has already invoked his right to
counsel for a previous interrogation. 53 According to the Roberson Court,
since the focus in Edwards is on the suspects state of mind during police
interrogation, the suspects request for counsel reflects his belief that he
cannot cope with the inherent pressures of interrogation without the
assistance of counsel. 54 Unless the suspect himself initiates further
communications with the police, this uneasy state of mind is presumed to
persist throughout the interrogation process. 55
Two years later, the Court in Minnick v. Mississippi 56 considered
whether the Edwards rule suppressed a confession when the police
obtained it during an interrogation after the suspect had met with his
requested counsel, but without the presence of the suspects attorney. 57
Striking the confession as invalidly procured, the Supreme Court ruled that

45. Bradshaw, 462 U.S. at 1045 (Rehnquist, J., plurality opinion).


46. Id. at 1045-46.
47. Id. at 1045.
48. See id. at 1046.
49. 486 U.S. 675 (1988).
50. Id. at 678.
51. Id.
52. Id.
53. See id. at 686-87.
54. See id. at 683, 687.
55. Roberson, 486 U.S. at 684.
56. 498 U.S. 146 (1990).
57. Id. at 148-50.
68 NEW ENGLAND LAW REVIEW [Vol. 43:61

the Fifth Amendment protection of Edwards is not terminated or


suspended by consultation with counsel. 58 In particular, the Court
interpreted Edwards and its progeny to require the presence of counsel
during interrogation. 59 An attorney helps to ensure that the suspects Fifth
Amendment rights are defended: [T]he presence of counsel . . . would be
the adequate protective device necessary to make the process of police
interrogation conform to the dictates of the [Fifth Amendment] privilege.
His presence would insure that statements made in the government-
established atmosphere are not the product of compulsion. 60
Underlying the Supreme Courts subsequent interpretations of
Edwards is a furtherance of the strong policy in Miranda to protect the
suspects Fifth Amendment rights in the context of custodial
interrogation. 61 Pivotal to the Edwards rule against police initiation is the
deterrence of police coercion to obtain confessions through badgering
and overreaching during interrogation. 62 By barring police from initiating
interrogation of the accused once he has requested counsel, the possibility
of a forced confession is greatly diminished since the police may not
participate in further contact with the accused about the investigation
unless the accused himself initiates the contact. 63 Furthermore, the Court
affirmed the post-Miranda Fifth Amendment jurisprudence expounded in
Edwards that once the suspect invokes the right to counsel, additional
safeguards are necessary. 64 These additional safeguards were manifested in
dicta explicating the significance attributed to the presence of an attorney in
the custodial interrogation process 65 and the preservation of a bright-line

58. Id. at 150.


59. Id. at 153 ([A] fair reading of Edwards and subsequent cases demonstrates that we
have interpreted the rule to bar police-initiated interrogation unless the accused has counsel
with him at the time of questioning.).
60. Id. at 152 (quoting Miranda v. Arizona, 384 U.S. 436, 466 (1966) (internal
quotations omitted)).
61. See, e.g., Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983) (Rehnquist, J., plurality
opinion) (But even if a conversation . . . is initiated by the accused, where re-interrogation
follows, the burden remains upon the prosecution to show that subsequent events indicated a
waiver of the Fifth Amendment right to have counsel present during the interrogation.).
62. Minnick, 498 U.S. at 150; Smith v. Illinois, 469 U.S. 91, 98 (1984); Bradshaw, 462
U.S. at 1044.
63. See Bradshaw, 462 U.S. at 1045-46.
64. Id. at 1051 (Powell, J., concurring) ([All nine Justices] also agree that once the
accused has requested counsel this right requires additional safeguards.); Edwards v.
Arizona, 451 U.S. 477, 484 (1981) ([A]dditional safeguards are necessary when the
accused asks for counsel.).
65. See, e.g., Arizona v. Roberson, 486 U.S. 675, 682 n.4 (1988) (quoting Fare v.
Michael C., 442 U.S. 707, 719 (1979)).
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 69

prophylactic rule. 66
First, in reference to the lawyers strategic position in the custodial
interrogation matrix, the Court reiterated Mirandas emphasis that custodial
interrogation subjects the accused to inherently compelling pressures. 67
In this inherently coercive setting the lawyer possesses a unique ability to
protect the suspects Fifth Amendment rights, and thus, the lawyers
presence during the interrogation is indispensable to the protection of the
Fifth Amendment privilege. 68 An attorneys unique ability to further the
suspects rights is useful not only in the context of ensuring police
compliance with permissible methods of interrogation, but it is also useful
to advise the suspect on what type of contactinitiation or otherwise, if
anyhe should have with the police. 69 Second, the bright-line prophylactic
rule set out in Edwards offers the distinct benefit of a clearly defined
standard in which the police, prosecutors, and the courts can assess
confessions obtained in the course of an interrogation. 70 Anything less than
a bright-line rule opens up the possibility for coercive police techniques. 71
While the insistence on a strict bright-line rule may burden law
enforcement and prosecutors from using otherwise highly probative
evidence, the gain in specificity . . . has been thought to outweigh the
burdens that the decision in Miranda imposes. 72

DISCUSSION

II. VAN HOOK v. ANDERSON: 73 (NOT) APPLYING EDWARDS TO


THIRD-PARTY INITIATION
Despite the abundance of ink the Supreme Court has spilt in
interpreting Edwards, it has not broached the subject of whether a third
party, on behalf of the suspect, may initiate communications with the police
after the suspect has invoked his Fifth Amendment right to have counsel

66. See, e.g., Smith, 469 U.S. at 99 n.8.


67. See Roberson, 486 U.S. at 681 (quoting Miranda v. Arizona, 384 U.S. 436, 467
(1966) (internal quotations omitted)).
68. Id. at 682 n.4 (quoting Fare, 442 U.S. at 719).
69. See Fare, 442 U.S. at 721-22.
70. Minnick v. Mississippi, 498 U.S. 146, 151 (1990) (citing Fare, 442 U.S. at 718);
Roberson, 486 U.S. at 681 (citing Fare, 442 U.S. at 718).
71. See Smith, 469 U.S. at 99 n.8 (1984) ([T]he rule we announced in Edwards . . . is a
prophylactic safeguard whose application does not turn on whether coercion in fact was
employed.).
72. Minnick, 498 U.S. at 151 (quoting Fare, 442 U.S. at 718); Roberson, 486 U.S. at
681-82 (quoting Fare, 442 U.S. at 718).
73. 488 F.3d 411 (6th Cir. 2007).
70 NEW ENGLAND LAW REVIEW [Vol. 43:61

present at interrogation. 74 Nonetheless, numerous federal courts of appeals


have taken up this issue and have tended to rule that admitting statements
from third-party initiations is consistent with Edwards prophylactic rule. 75
One such case in this line of precedent is Van Hook v. Anderson. 76

A. Facts and Procedural History of the Case


In February 1985, defendant Robert Van Hook met the victim, David
Self, at a Cincinnati bar commonly frequented by gay men. 77 The two left
to go to Selfs apartment and, in response to Selfs sexual advances, Van
Hook strangled Self to unconsciousness. 78 The defendant then killed Self
by stabbing him multiple times in the head and abdomen. 79 In addition, the
defendant took numerous items from Selfs apartment as he left. 80 Van
Hook fled Ohio and, after two months of evading police custody, local
police arrested him in Fort Lauderdale, Florida. 81 Once the police read him
his Miranda rights, he consented to police questioning, but he later stated
that, [M]aybe I should have an attorney present. 82 The police understood
Van Hooks statement as a request for an attorney and immediately halted
their interrogation. 83
While in custody in Florida and after he had requested counsel, Van
Hook spoke with his mother and she persuaded him to cooperate with the
police and to divulge the truth of his involvement in the murder of David

74. See id. at 417.


75. Compare United States v. Rodriguez, 993 F.2d 1170, 1174-75 (5th Cir. 1993)
(holding that police reinitiated contact where FBI agent re-interrogated suspect based on co-
defendants unverified and vague statement that defendants wanted to speak with police),
with United States v. Gonzalez, 183 F.3d 1315, 1324, 1328 (11th Cir. 1999) (holding that
suspect reinitiated further contact with police through third party where police re-
interrogated suspect after his wife said that he wanted to speak with police), revd on other
grounds, United States v. Diaz, 248 F.3d 1065 (11th Cir. 2001), United States v. Michaud,
268 F.3d 728, 735, 739 (9th Cir. 2001) (holding that accused reinitiated contact with police
through third party where suspect did not contradict cell-mates statement to guard made in
her presence that suspect wanted to speak with detective), and Owens v. Bowersox, 290
F.3d 960, 963-64 (8th Cir. 2002) (holding that suspect reinitiated communication with
police through third party where suspects mother informed police that he wanted to speak
with them).
76. 488 F.3d at 417.
77. Id. at 413.
78. Id.
79. Id.
80. Id.
81. Id.
82. Van Hook, 488 F.3d at 413-14 (alteration in original).
83. Id. at 414.
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 71

Self. 84 Based on a conversation with the defendants mother, Cincinnati


Police Detective William Davis believed the defendant would be willing to
speak with the police about the murder. 85 As a result, later that day Davis
flew to Florida to extradite and transport Van Hook back to Ohio. 86 At this
point, the defendant did not yet have counsel appointed. 87 Davis told Van
Hook that he had spoken to his mother and that she said he wanted to speak
with the police. 88 The defendant confirmed that both statements were true,
and after Davis read him his Miranda rights, Van Hook confessed to the
murder of David Self. 89
Van Hook was charged with aggravated murder and aggravated
robbery. 90 The Ohio trial court admitted his confession, finding that he had
reinitiated communications with the police, and a three-judge panel
convicted him of both charges. 91 On appeal, the Ohio Supreme Court
affirmed and the United States Supreme Court denied certiorari. 92 Seeking
collateral redress in federal district court, the defendant filed an
unsuccessful writ of habeas corpus. 93 A panel of the Sixth Circuit Court of
Appeals reversed the district courts ruling and held that the Fifth
Amendment does not allow a suspect to initiate communications with the
police through a third party. 94 Finally, the Sixth Circuit, on rehearing en
banc, vacated the panels holding and affirmed the district courts ruling by
a slim margin of eight to seven. 95

B. Van Hooks Argument


On appeal to the Sixth Circuit, Van Hook asserted that the rule in
Edwards should have suppressed his confession to Selfs murder. 96 More
specifically, Van Hook argued that the district court erred when it ruled
that, as a matter of law under Edwards, he reinitiated discussions with the
police through the use of a third party, namely his mother, after he invoked

84. Id. at 425-26.


85. See id. at 414, 426.
86. Id. at 414.
87. Id.
88. Van Hook, 488 F.3d at 426.
89. See id. at 414, 426.
90. Id. at 414.
91. Id.
92. Id.
93. Id.
94. Van Hook, 488 F.3d at 414.
95. Id. at 413-14.
96. Id. at 415.
72 NEW ENGLAND LAW REVIEW [Vol. 43:61

his right to request counsel. 97 Van Hook relied on the oft-quoted language
in Edwards 98 that the accused himself must initiate discussions with the
police. 99 A straightforward reading of the text, Van Hook argued, reveals
that a suspect effectuates a waiver of his or her rights when the suspect
and only the suspectinitiates discussion with the police. 100 If the Edwards
bar demands that the police may only re-interrogate the accused once he
directly engages in further contact with them, then a third party cannot
serve as a conduit for the accused to initiate communications with the
police. 101 Thus, Van Hook argued that his mother could not validly convey
his willingness and desire to initiate further discussions with the police. 102

C. The Majority Opinion


The Sixth Circuit ruled that a suspect validly initiates further
discussions with the police through a third party, without violating the
bright-line prophylactic rule of Edwards, when the third party conveys the
suspects willingness and desire to contact the police. 103 The court was not
persuaded by Van Hooks reading of Edwards and stated that [t]here is no
sound justification for reading the statement from Edwards that the suspect
himself must initiate a discussion to imply the suspect, and only the
suspect, can inform the police he wants to talk. 104 According to the courts
reading, Edwards does not prescribe a standard in which the suspect is the
only one who can express an initiation to the police since the specific issue
of third-party communications was not before the Edwards Court. 105 As
such, the court concluded that [c]onstitutional rights are not defined by
inferences from opinions which did not address the question at issue. 106
Although the court recognized that the particular circumstances of this case

97. Id. at 416 n.3.


98. Id. at 438. [A]n accused . . . having expressed his desire to deal with the 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. Edwards v. Arizona, 451 U.S. 477, 484-85
(1981).
99. Van Hook, 488 F.3d at 417.
100. Id.
101. See id.
102. See id.
103. Id. at 428.
104. Id. at 417.
105. Van Hook, 488 F.3d at 417 (The Supreme Court did not command in Edwards that
a suspect must directly inform the police he wants to talk, as opposed to informing them
through a third party. The propriety of communication through a third party was not before
the Court in Edwards . . . .).
106. Id. (quoting Texas v. Cobb, 532 U.S. 162, 169 (2001) (internal quotations omitted)).
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 73

are beyond those contemplated by the general rule in Edwards, 107 the court
went on to say that refining a general rule when faced with unforeseen
circumstances is not imprudent. 108
The court next defined the standard by which a suspect initiates a
discussion to evaluate whether the scope of the Edwards rule encompasses
third-party communications. 109 In United States v. Whaley, the Sixth
Circuit defined an Edwards initiation as a suspect showing a willingness
and a desire to talk generally about his case without police influence. 110
Reasoning that there is nothing inherent in show[ing] a willingness and a
desire that restricts it to direct communication only, the majority
concluded that a suspect can convey an Edwards initiation through a third
party. 111 The only difference between indirect and direct communication to
the police is the number of persons through which the communication
passes. 112 Any problems in accuracy, the court reasoned, can easily be
remedied by the officer asking the accused to confirm what the officer
received from the intermediary. 113 The significant characteristic in
analyzing a communication under the Edwards rule is not that the suspect
conveyed it directly or indirectly to the police; rather, according to the
court, what is important is the impetus for discussion comes from the
suspect himself independent of police provocation. 114
The court additionally discussed how the significant policy concerns
behind Edwards and Miranda are satisfied by allowing initiation through
third-party communications. 115 Given that the Supreme Court attempted to
counteract the possibility of police badgering and overreaching of the
suspect in custodial interrogations, the court reasoned that prohibiting a
suspect from initiating police contact through third-party communication
misplaces the protective emphasis. 116 The constitutional protections in
Miranda and Edwards are concerned specifically with police officials
exerting improper coercion, not with any coercion from the suspects
family members or friends. 117 Moreover, the inherent benefits to

107. See id.


108. See id. (citing Dickerson v. United States, 530 U.S. 428 (2000)).
109. Id. at 418.
110. United States v. Whaley, 13 F.3d 963, 967 (6th Cir. 1994) (citing Oregon v.
Bradshaw, 462 U.S. 1039, 1045-46 (1983)).
111. Van Hook, 488 F.3d at 418.
112. See id.
113. Id.
114. Id.
115. See id. at 420.
116. See id.
117. Van Hook, 488 F.3d at 420-21 (The Constitution clearly forbids officials from
74 NEW ENGLAND LAW REVIEW [Vol. 43:61

prosecutors and police of a simple yet rigid bright-line rule, which clearly
outlines the legal parameters of admissible custodial interrogations, would
not be lost if third-party communications constitute an Edwards
initiation. 118 The basic restriction as set by Edwards still appliesthat is,
the suspect and not the police must still be the impetus for initiationand
thus, the legal framework remains largely unaltered, allowing prosecutors
and police to easily incorporate this new consideration into their
preexisting practices. 119
Finally, the court emphasized that its ruling set defined standards for
evaluating third-party communications. 120 Significantly, third-party
communications must still adhere to the standard for defining initiation as
set out in Whaley: that the suspect must exhibit a willingness and a desire
to engage in further discussions with the police after he or she has
previously requested counsel. 121 Upon learning from a third party that the
suspect is willing to initiate further conversations with them, the court
emphasized that the police may not begin interrogating a suspect because
of a third-party allegation that the suspect wants to waive his previously
invoked right to counsel. 122 In addition to confirming from the suspect that
he is willing to communicate, the police are required to obtain a sufficient
basis for accepting the third partys communication as valid. 123

D. The Dissents 124


Of the seven judges in opposition to the majoritys ruling, three wrote
dissents. 125 Judge Coles dissent asserted that only the suspect or his

using their power of the sword to coerce a suspect into making self-incriminating
statements; it provides no similar protection against third-party cajoling, pleading, or
threatening.).
118. See id. (If we were to prohibit a suspect from initiating a discussion with the police
through a third-party, we would be . . . imposing an undue burden on our criminal-justice
system.).
119. Id. at 422.
120. See id. at 424-25 (explaining that an accused initiates further police contact only
[w]hen the police receive information that a suspect wants to talk; when there is a
sufficient basis for believing its validity; and when the police confirm with the suspect the
validity of that information).
121. See id.
122. Id. at 424.
123. Van Hook, 488 F.3d at 424-25.
124. Since both Judge Merritts and Judge Martins dissents accepted Judge Coles
dissent, this Comment only discusses Judge Coles dissent in detail. See id. at 437-38
(Merritt, J., dissenting); id. at 440-41 (Martin, J., dissenting).
125. See id. at 428, 437, 440.
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 75

attorney may initiate further communications with the police. 126 By


allowing a third party to initiate a suspects discussion with the police, thus
allowing the police to continue their interrogation of the suspect, Judge
Cole argues that the majoritys view does not adhere to the established
Supreme Court jurisprudence on custodial interrogations. 127 According to
Judge Cole, the majoritys opinion fails to further the principles of
supplying clear and simplified rules for law enforcement and prosecutors to
follow and defending the suspects rights against disproportionate state
power. 128
First, Judge Cole argued that the majority departed from the Supreme
Courts clear and established custodial interrogation jurisprudence. 129 The
Supreme Court has been clear in its insistence on a bright-line rule to
govern custodial interrogation. 130 Under the majoritys allowance of third-
party initiations and its accompanying criteria, the benefits of the bright-
line rule are lost because police, guided by the vague parameters of a
sufficient basis standard, must judge whether a third partys indication
that the suspect desires further contact is credible. 131 The police are left
without a specific rule on which to base their interrogation procedures. 132
The suspect is also disadvantaged by a rule allowing wide police discretion
for ad hoc assessments of third-party credibility given that the coercive
setting of custodial interrogation is ready-made for the infringement,
whether intentional or inadvertent, of constitutional protections. 133
Secondly, Judge Cole noted some of the practical difficulties involved
in the majoritys holding that the police may now contact the accused
despite the fact that the accused may not have contacted them through a
third party. 134 There is a risk that a third partys misinterpretation of the
suspects words, either malignantly or benignly, can easily lead the third
party to contact the police. 135 For example, the third party may interpret the
suspects statements through the lens of what the third party thinks is best

126. Id. at 428 (Cole, J., dissenting).


127. Id. at 430.
128. Id.
129. Van Hook, 488 F.3d at 432.
130. See id. at 431-32 ([I]t is evident that the Supreme Court regards clarity and ease of
application as necessary features of any legal rule governing custodial interrogations and
that the Court eschews proposed modifications that fail this test. (citing Dickerson v.
United States, 530 U.S. 428 (2000); Davis v. United States, 512 U.S. 452 (1994); Minnick
v. Mississippi, 498 U.S. 146 (1990))).
131. See id. at 434.
132. Id. at 430-31.
133. Id. at 430.
134. Id. at 432.
135. Van Hook, 488 F.3d at 432.
76 NEW ENGLAND LAW REVIEW [Vol. 43:61

for the suspect even if it runs counter to the suspects procedural needs. 136
Consequently, the suspect returns to the inherent pressures within custodial
interrogation which he previously eluded by invoking his right to have
counsel present during interrogation. 137

III. THE CLASS OF THIRD-PARTY INITIATIONS SHOULD BE


EXCLUSIVELY CONFINED TO THE SUSPECTS COUNSEL
When viewed in the larger legal and policy context in which the post-
Edwards Supreme Court subsequently wrote, there is strong support for a
rule limiting third-party initiations to the suspects counsel. 138 Principally,
the Edwards Court sought to protect the suspect from police badgering
and overreaching in the custodial interrogation environment. 139 To this
end, the Court emphasized that additional safeguards are necessary when
the accused asks for counsel. 140 To ensure that the suspects Fifth
Amendment right to have counsel present during interrogation is
adequately protected, post-Edwards Courts developed two overriding
safeguards: the significance attributed to the attorneys presence in the
custodial interrogation process 141 and the preservation of a bright-line
prophylactic rule. 142

A. The Significance Attributed to the Attorneys Presence in the


Custodial Interrogation Process
The presence of a suspects counsel during interrogation is a
fundamental right afforded once the suspect invokes the right to counsel. 143
So vital is the right that the Supreme Court ruled in Minnick v. Mississippi
that it does not dissolve upon the suspects consultation with his counsel. 144
Moreover, the Court in Fare v. Michael C. stated:
[t]he rule in Miranda . . . was based on this Courts perception
that the lawyer occupies a critical position in our legal system
because of his unique ability to protect the Fifth Amendment
rights of a client undergoing custodial interrogation. Because of

136. Id.
137. See id. at 433-34.
138. See supra Part I.B.
139. See Minnick v. Mississippi, 498 U.S. 146, 150 (1990); Smith v. Illinois, 469 U.S.
91, 104 (1984); Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983).
140. Edwards v. Arizona, 451 U.S. 477, 484 (1981).
141. See supra notes 67-69 and accompanying text.
142. See supra notes 70-72 and accompanying text.
143. See Miranda v. Arizona, 384 U.S. 436, 474 (1966).
144. See Minnick, 498 U.S. at 150.
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 77

this special ability of the lawyer to help the client preserve his
Fifth Amendment rights once the client becomes enmeshed in
the adversary process, the Court found that the right to have
counsel present at the interrogation is indispensable to the
protection of the Fifth Amendment privilege . . . . 145
In spite of the Courts discussion of the importance of the attorneys
presence for the protection of the suspects Fifth Amendment rights, the
Van Hook court was correct to point out that the Supreme Court has been
silent on the issue of the validity of third-party initiations, much less on the
importance of the attorney in that situation. 146 Furthermore, strictly
speaking, allowing non-attorney third-party initiations does not seem to be
inconsistent with the Courts custodial-interrogation jurisprudence. 147 As
long as the suspects counsel is present when the police re-interrogate him
in response to the non-counsel third-party initiation, there seems to be no
problem. 148 However, this technical reading of the Courts custodial
interrogation jurisprudence ignores the fundamental purpose behind the
Courts per se requirement that the suspects counsel be present: that the
lawyer occupies a critical position in our legal system because of his
unique ability to protect the Fifth Amendment rights of a client undergoing
custodial interrogation. 149 This unique ability serves as the basis for
limiting third-party initiations exclusively to lawyers.
A lawyers skills in protecting the suspect during custodial
interrogation carry over into the realm of third-party initiations. 150 In the
time leading up to interrogation, the lawyer can utilize her specialized
training in the law, in addition to her field experience, to obtain relevant
information regarding her clients involvement in the crime under
investigation. 151 From this basis, the attorney can advise her client on the
best course of action to meet the clients legal needs, including informing
the client of his legal rights and how to best protect them. 152 During the
interrogation, the lawyer insure[s] that statements made in the

145. Fare v. Michael C., 442 U.S. 707, 719 (1979), rehg denied, Fare v. Michael C., 444
U.S. 887 (1979) (quoting Miranda, 384 U.S. at 469).
146. See Van Hook v. Anderson, 488 F.3d 411, 417 (6th Cir. 2007).
147. See id.
148. See, e.g., Minnick, 498 U.S. at 152 ([The lawyers] presence would insure that
statements made in the government-established atmosphere are not the product of
compulsion. (quoting Miranda, 384 U.S. at 466) (internal quotes omitted)).
149. Fare, 442 U.S. at 719 (emphasis added).
150. See JOHN WESLEY HALL, JR., PROFESSIONAL RESPONSIBILITY IN CRIMINAL DEFENSE
PRACTICE 120 (3d ed. 2005).
151. See Fare, 442 U.S. at 721.
152. See HALL, supra note 150, at 125-26, 128-29.
78 NEW ENGLAND LAW REVIEW [Vol. 43:61

government-established atmosphere are not the product of compulsion by


instructing the client as to which questions he should answer and which
questions he should meet with silence. 153
With third-party initiations, the scenario is no different. In
consultation with her client regarding whether the client should contact the
police, the lawyer will have to advise her client of his rights, how the law
protects those rights, and the legal consequences of any course of action the
client decides to pursue. Should the client choose to reinitiate
communications with the police, the attorney, acting as the clients
authorized agent, 154 can also use her specialized ability to convey her
clients wishes to the police and protect against any potential
overreaching. 155 Armed with her extensive legal training, the attorney will
be able to ward off back-door approaches by the police to obtain additional
information as well as to serve as a protective medium between her client
and the police. 156 Thus, given that the underlying purpose behind the
lawyers unique ability to protect the suspects Fifth Amendment rights in
custodial interrogations is also present for third-party initiations, the
Courts reasoning should be extended to a rule that limits third-party
initiations exclusively to attorneys. 157
As the Fare Courts use of the words unique ability 158 clearly
denotes, this expertise in protecting the suspects Fifth Amendment rights
can only be obtained from the attorney. 159 An approach like that in Van
Hook, allowing non-attorney third parties to initiate further
communications with the police, is wrought with practical problems, such
as whether the third party correctly interpreted the suspects true wishes
and whether the initiation served the suspects best interests. 160 Ignoring for
simplicitys sake the complications of prison guard third-party

153. Minnick, 498 U.S. at 152 (quoting Miranda, 384 U.S. at 466).
154. See HALL, supra note 150, at 130.
155. See Fare, 442 U.S. at 719.
156. See id.
157. Cf. Patterson v. Illinois, 487 U.S. 285, 291 (1988) (Preserving the integrity of an
accuseds choice to communicate with police only through counsel is the essence of
Edwards and its progeny . . . .).
158. Fare, 442 U.S. at 719.
159. Id. However, assuming without conceding that a suspects non-lawyer family
member possesses a unique ability to adequately protect the Fifth Amendment rights of the
suspect, these individuals do not owe a special duty akin to the lawyers ethical duty to
serve her clients interests to the best of her ability, including a duty of confidentiality
solidified in the attorney-client privilege. See HALL, supra note 150, at 118-21, 919-21,
1024.
160. See Minnick v. Mississippi, 498 U.S. 146, 146-47 (1990).
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 79

initiations, 161 even in the context of non-lawyer family members these


problems arise. 162 There are many instances where the suspects true
wishes could be lost-in-translation because the third party
misunderstands the suspects words, or the third party, well-intentioned or
otherwise, construes the suspects words incorrectly. 163 For example, after
he has invoked his right to counsel, in a conversation with his mother the
suspect may audibly preview his internal ambivalence stating: I dont
think I should talk to the cops. Or maybe I should? The suspects loving,
though inattentive, mother may misinterpret the second utterance to
manifest his intent to talk with the police. Furthermore, while the suspects
mother may only be doing what she thinks is best for her son by contacting
the police, re-interrogation by the police is likely to be contrary to his
firmly established Fifth Amendment interests. 164 Given an attorneys legal
training and expertise, this scenario is highly unlikely if third-party
initiations are limited to attorneys. 165
The Van Hook court contends that issues involving third-party
misinterpretations are easily solved by requiring the police to ask the
suspect whether the third-party statement to the police is accurate. 166 In
addition, the court asserts that this requirement helps to guard against
police coercion. 167 Admittedly, this requirement does help to alleviate the
problem caused by maliciously motivated non-lawyer third-party
initiations, but it still falls short. Requiring the police to verify only that the
suspect told a third party that he wanted to talk to the police is not enough
to comply with Edwards. 168 The police should also be required to verify
that the suspect told the third party to contact the police on his behalf. 169

161. See Van Hook v. Anderson, 488 F.3d 411, 423-24 (6th Cir. 2007); see also id. at 433
(Cole, J., dissenting).
162. Id. at 432 (Cole, J., dissenting).
163. See id. at 432-33 (Cole, J., dissenting).
164. See Van Hook, 488 F.3d at 428 (Cole, J., dissenting). Of course, re-interrogation by
the police may only occur if he initiated the further contact and he knowingly and
intelligently waived his Miranda rights. This hypothetical assumes the suspect waived his
rights. See Oregon v. Bradshaw, 462 U.S. 1039, 1044-45 (1983) (Rehnquist, J., plurality
opinion).
165. See Fare v. Michael C., 442 U.S. 707, 719 (1979).
166. Van Hook, 488 F.3d at 418.
167. Id. at 422.
168. See id. at 424-25.
169. Cf. James P. Fleissner & Amy C. Reeder, Constitutional Criminal Procedure, 51
MERCER L. REV. 1089, 1118-19 (1999) (discussing the potential difficulties of third-party
initiations in United States v. Gonzalez, 183 F.3d 1315 (11th Cir. 1999)). But see Owens v.
Bowersox, 290 F.3d 960, 963-64 (8th Cir. 2002) (concluding that suspect initiated further
communication with the police through his mother even though he never told her to contact
80 NEW ENGLAND LAW REVIEW [Vol. 43:61

Otherwise, there really is no Edwards initiation by the suspect because he


merely evinced a desire, but not a willingness to contact the police.
The suspect exhibits his willingness to generally discuss his case 170 by
either directly conveying this to the police or authorizing a third-party
agent to do it for him. The only suitable third-party agent to convey a
suspects wishes to contact the police is the suspects attorney. Since an
attorney is obligated to advocate for her clients best legal interests, she
would not contact the police without her clients confirmed intent to do
so. 171 Moreover, attorney third-party initiations ensure that the suspect has
validly waived his right to counsel without the influence of police
coercion. 172 When a lawyer informs the police that her client has opted not
to use the assistance of counsel, there is no clearer example of the suspects
waiver of his Fifth Amendment rights.

B. The Preservation of a Bright-Line Prophylactic Rule


The Supreme Court in Fare lauded the prophylactic bright-line rule in
Miranda for its clarity and ease of application. 173 In particular, the Fare
Court noted:
[the] relatively rigid requirement [in Miranda] that interrogation
must cease upon the accuseds request for an attorney . . . has the
virtue of informing police and prosecutors with specificity as to
what they may do in conducting custodial interrogation, and of
informing courts under what circumstances statements obtained
during such interrogation are not admissible. 174
In addition, the benefit of a specific rule has been thought to
outweigh the burdens that . . . Miranda imposes on law enforcement
agencies and the courts by requiring the suppression of trustworthy and
highly probative evidence . . . . 175 This analysis equally applies to the
bright-line rule in Edwards. 176 The Van Hook court claimed that by

the police on his behalf).


170. See Bradshaw, 462 U.S. at 1044-46.
171. See HALL, supra note 150, at 128-29.
172. Cf. Minnick v. Mississippi, 498 U.S. 146, 153 (1990) ([A] fair reading of Edwards
and subsequent cases demonstrates that we have interpreted the rule to bar police-initiated
interrogation unless the accused has counsel with him at the time of questioning.).
Additionally, the police would also have to verify that the suspect does not want his counsel
present during the interrogation. See id. at 155.
173. Fare v. Michael C., 442 U.S. 707, 718 (1979).
174. Id.
175. Id.
176. See Minnick, 498 U.S. at 151 (citing Arizona v. Roberson, 486 U.S. 675, 682
(1988)).
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 81

allowing third-party communications, the benefits of a bright-line rule are


not lost because the essential underpinning of Edwards is maintained: that
the suspect must be the impetus behind the initiation with the police. 177
This is protected by the requirement that the police must have a sufficient
basis for believing [the] validity of the third-party statement. 178 With the
crux of Edwards unchanged, the court reasoned that the police and
prosecutors will not have to significantly alter their custodial interrogation
practices to factor in third-party initiations. 179 Yet, the majoritys holding
in Van Hook complicates the bright-line rule set forth in Edwards in
contravention of the policies underlying the preservation of such a rule. 180
In contrast, the advantages of a prophylactic bright-line rule are preserved
by a rule confining third-party initiations to lawyers.
The Van Hook courts allowance of third-party initiations
unnecessarily adds another factor to the Edwards bright-line analysis. 181
Deciphering whether the suspect himself initiates further communications
can prove to be a difficult undertaking for the police. 182 Aside from coping
with issues of whether the suspect unambiguously request[ed] counsel, 183
the suspects waiver of his Fifth Amendment rights must not be at the
behest of police overreaching. 184 Permitting that the initiation may now
come through a third party only adds to potential difficulties already
present. Instead of merely analyzing whether the suspects statement is
sufficiently unambiguous, the police will also have to analyze the third
partys transmission of the suspects statement under the same lens. 185
The majoritys additional requirement that the police must gauge the
validity of third-party statements through a sufficient basis filter does not
fix the issue. 186 On paper, this requirement seems feasible; yet, in practice
its vagueness is likely to cause complications. 187 For example, is there a
sufficient basis for believing the third party if the suspect did not tell the

177. See Van Hook v. Anderson, 488 F.3d 411, 422 (6th Cir. 2007).
178. See id. at 424-25.
179. See id. at 422.
180. Cf. supra notes 63-71 and accompanying text.
181. Compare Van Hook, 488 F.3d at 423-25 (approving third-party communications),
with Arizona v. Robertson, 486 U.S. 675, 681 (1988) (approving the bright-line rule set out
in Edwards).
182. See Oregon v. Bradshaw, 462 U.S. 1039, 1044-47 (1983) (Rehnquist, J., plurality
opinion).
183. See Davis v. United States, 512 U.S. 452, 459 (1994).
184. See Edwards v. Arizona, 451 U.S. 477, 486 n.9 (1981).
185. See Van Hook, 488 F.3d at 431-33 (Cole, J., dissenting).
186. See id. at 434.
187. See id.
82 NEW ENGLAND LAW REVIEW [Vol. 43:61

third party to contact the police? Should a cell-mates188 or a prison guards


potential self-interest automatically disqualify them as sufficiently reliable
third-party sources? The Van Hook court is right to point out that [w]hen
drawing a bright line, a court cannot hope to eliminate each and every close
call, but rather only to minimize them. 189 However, a rule fashioned in the
furtherance of a bright-line rule should also not be the catalyst for the
development of more close calls. 190
The court in Van Hook additionally fails to adhere to the policies
behind the preservation of a bright-line rule. Of central importance to a
bright-line rule is to provide the police with clear guidelines to follow in
custodial interrogations. 191 The bright-line rule benefits the accused and
the State alike. 192 For the police, a bright-line rule establishes clear
parameters to which police custodial interrogation procedures must
conform, allowing them to reduce the instances where a court will strike an
incriminating statement as inadmissible. 193 By permitting third-party
initiations without setting adequate limitations, the Van Hook court puts an
extra burden on police to resolve the tough questions involved as to
whether the suspect has validly initiated further contact through a third
party. 194 Under the holding in Van Hook, the police will be required to
consider additional criteria to assess third-party initiations without definite
standards to guide them. 195 As such, the police could be left in the
frustrating position of having to comply with court-imposed requirements
which offer minimal guidance but which, if violated, also serve to strike
any police deviation from their vague boundaries. 196
The Supreme Court also values the clarity of a bright-line rule
because the coercive setting of custodial interrogation is ready-made for
the infringement, whether intentional or inadvertent, of constitutional
protections . . . . 197 Bright-line rules help to set rigid standards prohibiting
coercive police conduct with the objective of protecting the suspects Fifth
Amendment rights. 198 The essence of the Edwards bright-line rule is to

188. See generally United States v. Michaud, 268 F.3d 728 (9th Cir. 2001).
189. Van Hook, 488 F.3d at 422 n.7.
190. See id. at 432-33 (Cole, J., dissenting).
191. Minnick v. Mississippi, 498 U.S. 146, 151 (1990).
192. Fare v. Michael C., 442 U.S. 707, 718 (1979).
193. Van Hook, 488 F.3d at 430 (Cole, J., dissenting).
194. See id. at 434 (citing Davis v. United States, 512 U.S. 452, 461 (1994)).
195. Id. at 424; See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
196. See Van Hook, 488 F.3d at 430.
197. Id. (citing Dickerson v. United States, 530 U.S. 428, 435 (2000)).
198. Cf. Smith v. Illinois, 469 U.S. 91, 99 n.8 (1984) ([A]bsent a bright-line rule
requiring an immediate cessation of questioning, an accused may be badgered to speak as
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 83

protect . . . the suspects desire to deal with the police only through
counsel. 199 If a bright-line rule is loosened, the police have more
flexibility to exert coercion over the suspect given the indefinite directive
of the Van Hook court that the police may, as determined by their own
judgment, pursue sufficiently reliable third-party initiations while the
suspect remains in custody. 200 The focus of the prophylactic bright-line rule
in Edwards is on the suspects state of mind. 201 Through his request for
counsel, the suspect has already indicated his uneasiness in dealing with the
police by himself. 202 In this setting, to authorize the police to re-interrogate
a suspect based on a loosened and minimally guided rule is to defeat the
purpose of the Edwards prophylactic bright-line rule. 203
On the other hand, a rule strictly confining third-party initiations to
the suspects attorney preserves the advantages and policies of the
prophylactic bright-line rule in Edwards. 204 First, such a rule provides
clarity and is easy to apply. 205 If only lawyers initiations are valid, any
potential problems in assessing the reliability of third-party initiations by
the police are eliminated. 206 As an authorized agent of the accused with a
duty to zealously represent her client, there is no question as to whether the
attorney speaks on behalf of the accused. 207 Difficulties arising from
ambiguous statements by the suspect are all but erased because the lawyer
can use her legal expertise to ferret out the suspects true intentions and to
accurately relay them to the police. 208 Second, this rule sets firm
parameters for the police as to who can initiate contact on behalf of the
accused. 209 There is little room for police confusion if third-party initiations
are exclusively limited to the suspects counsel. 210 Moreover, given the
reliability of attorney initiations, the police can better avoid judicial
suppression of evidence obtained from interrogation. 211 With attorney

a result of police overreaching.).


199. McNeil v. Wisconsin, 501 U.S. 171, 178 (1991) (quoting Edwards, 451 U.S. at 484).
200. See Van Hook, 488 F.3d at 430 (Cole, J., dissenting).
201. Arizona v. Roberson, 486 U.S. 675, 687 (1988).
202. Id. at 686.
203. See id. at 682; Edwards, 451 U.S. at 484-85.
204. See, e.g., Robinson, 486 U.S. at 681-82.
205. See id. at 682.
206. Cf. Van Hook v. Anderson, 488 F.3d 411, 418 (6th Cir. 2007) (discussing
confessions regarding third-party communications).
207. See HALL, supra note 150, at 130.
208. See id. at 125-26, 128-29.
209. See Roberson, 486 U.S. at 681.
210. See id.
211. See Van Hook, 488 F.3d at 430-31 (Cole, J., dissenting) (arguing that a bright-line
rule limits judicial second-guessing of police investigation).
84 NEW ENGLAND LAW REVIEW [Vol. 43:61

initiations, the police can be almost certain that the accused has initiated the
further contact through his agent 212 and that the accused has knowingly and
intelligently waived his previously invoked right to have counsel present
during interrogation. 213
Finally, and most importantly, restricting third-party initiations to
lawyers upholds the prophylactic aspect of the Edwards rule because it
significantly reduces the possibility of police coercion by protecting the
suspects desire to deal with the police only through counsel. 214 Once the
suspect invokes his right to counsel, the suspect indicates his belief that he
cannot handle the demands of custodial interrogation without legal
counsels assistance. 215 In this way, the suspect has requested his right to
deal with the police only through his counsel. 216 By only permitting
attorney third-party initiations, the suspects Fifth Amendment request to
deal with the police only through counsel is clearly honored. 217 Although a
suspect may revoke this right through a non-lawyer third party, the
advantages of a lawyers unique ability, over a non-lawyers ability, to
protect a suspects Fifth Amendment rights weigh heavily in favor of
allowing only a suspects lawyer to revoke this right. 218 The lawyers
unique ability to protect the suspects Fifth Amendment rights will also
ensure that the suspects best interests are served and that police attempts to
extract illegal confessions will not succeed. 219

CONCLUSION
In Edwards, the Supreme Court ruled that once an accused invokes
his right to counsel, the police may not re-interrogate him until his counsel
is present unless the accused himself initiates further contact with the
police. 220 In the aftermath of Edwards, the Supreme Court and lower courts
have grappled with the intricacies arising out of this bright-line rule. 221
Nonetheless, the Court has reiterated specific legal principles that serve as
conspicuous guideposts for lower courts on this issue. 222 Despite its effort
to adhere to the Supreme Courts custodial interrogation jurisprudence, the

212. See supra text accompanying notes 162-163.


213. See supra note 164 and accompanying text.
214. See Roberson, 486 U.S. at 690 (Kennedy, J., dissenting).
215. See id. at 686.
216. Edwards v. Arizona, 451 U.S. 477, 484 (1980).
217. See id.
218. See supra text accompanying notes 158-164.
219. See supra text accompanying notes 150-157.
220. Edwards, 451 U.S. at 484-85.
221. See supra Part I.B.
222. See supra Part III.A-B.
2008] EXCLUSIVE ATTORNEY THIRD-PARTY INITIATION 85

Van Hook court came up short by allowing all types of third-party


initiations. 223
When the suspects constitutional rights are at stake, it is imperative
that courts implement rules that foster instead of hinder those rights. 224
Since a rule only permitting third-party initiations from attorneys adheres
to the Supreme Courts dual insistence on the significance of the suspects
attorney during custodial interrogation 225 and on the maintenance of a
bright-line prophylactic rule, 226 courts should accordingly restrict third-
party initiations to those of attorneys. 227 If the goal is to provide additional
safeguards when the suspect invokes his Fifth Amendment right to counsel
during custodial interrogation, 228 then only an attorney, with her unique
ability to protect those rights, should be allowed to initiate further police
communications on behalf of the suspect. 229 Non-attorney third parties
including the suspects mothersimply cannot adequately protect the
suspects interests in most situations. 230

223. See supra Parts II, III.A-B.


224. See Michigan v. Harvey, 494 U.S. 344, 350 (1990).
225. See supra Part III.A.
226. See supra Part III.B.
227. See supra Part III.A-B.
228. Edwards v. Arizona, 451 U.S. 477, 484 (1981).
229. Fare v. Michael C., 442 U.S. 707, 719 (1979).
230. See supra Part III.A.