Oregon V. Bradshaw - Concurring Opinion

Concurring Opinion

Justice Powell agreed that, in this particular case, Bradshaw had voluntarily waived his right to have counsel present during interrogation because, after Bradshaw had asked what would happen to him, the police confirmed that he understood his Miranda rights before having Bradshaw sign a written waiver form. In these circumstances, Powell concluded that Bradshaw had voluntarily waived his right to counsel.

Powell had expressly not joined the opinion in Edwards because he was "not sure what it meant." Powell felt that what it meant to "initiate" conversation with the police was far from clear, and the fact that two plausible meanings each garnered the votes of four Justices in this case. Powell was uncomfortable with the two-part test the plurality had adopted, under which a reviewing court first asked whether the suspect had initiated conversation with the police before asking whether, under the totality of the circumstances, the suspect had waived his right to counsel. Powell pointed out that only the totality-of-the-circumstances test had historically been the only test the Court had employed in the past, and he saw no reason to depart from it.