Vol. 25 No. 4- Supreme Court Modifies Miranda – Allows Re-Interrogation After Subject Invokes


March 1, 2010

In a unanimous decision, the United States Supreme Court modified a long standing rule regarding the reinterrogation of a suspect after he invoked his rights under Miranda v. Arizona.  The Supreme Court ruled, on February 24, 2010, in the case of Maryland v. Shatzer, that a reinterrogation of a Maryland man, initiated by the police, did not violate the suspect’s right to an attorney.

Shatzer, was suspected of sexually assaulting his own son. He confessed to the crime, nearly three years after first invoking Miranda and refusing to cooperate with detectives, without legal representation present.


The case began in 2003 when a social worker told police she suspected that Shatzer had forced his, then, three year old son to perform sex on him.  At that time, Shatzer was in state prison on an unrelated offense of molesting another child. When detectives met with him in jail, Shatzer invoked his Miranda right to an attorney, refused to talk and, as a result, the interview ended.

Three years later, the child had grown old enough to make specific allegations against the father which initiated a reopening of the case. Thereafter, in March 2006, another police officer conducted two subsequent jailhouse interviews, at which time Shatzer waived his right to an attorney and confessed to child molestation. Officials said that at no time did Shatzer request a lawyer.  Based on his confession, he was convicted of second-degree sexual offense, sexual child abuse and second-degree assault on his son.

Legal Analysis

In 1981, the US Supreme Court, in Edwards v. Arizona, established a prohibition against interrogation of a suspect who had invoked the Fifth Amendment right to counsel.  “The use of petitioner’s confession against him at his trial violated his right under the Fifth and Fourteenth Amendments to have counsel present during custodial interrogation, as declared in Miranda, supra. Having exercised his right on January 19 to have counsel present during interrogation, petitioner did not validly waive that right on the 20th (of January).”

However, the question raised in Shatzer was whether this rule was applicable if, after the suspect asks for counsel, there is a “break in custody” or a substantial lapse in time before commencing reinterrogation by the police?

The justices had to decide how long a suspect’s constitutional right to counsel should remain valid. The court concluded that a two-week period after questioning is enough to satisfy “any residual coercive effects of his prior custody.”

A Maryland appeals court had previously ruled that, because Shatzer remained in jail during the entire time police were investigating the child molestation claims, there was “no break in custody.”   As such, authorities would not be allowed to use incriminating evidence obtained from the second interrogation since no lawyer was present. Therefore, the appellate court threw out the confession and the state petitioned the US Supreme Court to review the case.

Break in Custody

The Court addressed whether there was any break in custody, since Shatzer had been confined in prison when he was reinterrogated?  Justice Scalia said that the fact Shatzer remained in prison between the two interrogations, did not mean there was no break in custody as defined in connection with this issue.

“When sentenced prisoners are released back into the general prison population, they return to their accustomed surroundings and daily routine. They regain the degree of control they had over their lives prior to attempted interrogation.”  (Emphasis added.)  Justice Scalia also noted that, “The duration of the break in custody here (2½ years) was plainly enough to eliminate the residual coercive effect of his prior custody. But would one year be enough? Or one week?”

Scalia said it is important for lower courts and law enforcement to have some guidance on what was an acceptable period of time before a reinterrogation could be conducted, and the justices settled on 14 days.  The Court ruled that 14 days was “plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel,” after being in the custody of the police.  Justice Clarence Thomas, however, asked what made 14 days appropriate, as compared to any other, lesser, amount of time?


This is a major change in the law.  The ruling in Edwards stood unchallenged for almost 30 years.  Major questions will arise as a result of the Shatzer case, for example, does it apply to pre-trial detainees (the Court referred to sentenced prisoners)?  Does it apply to interrogation of persons incarcerated in county jails?  How does the “break in custody” occur?

In any event, the subject must be advised of his/her Miranda rights prior to conducting the reinterview. Because of the complexity of this case, it is, as always, imperative that you receive guidance from your agency’s designated legal advisor.

If you wish to discuss this case in greater detail, please don’t hesitate to contact me at (714) 446-1400 or via e-mail at mjm@jones-mayer.com.