Oregon V. Bradshaw - Dissenting Opinion

Dissenting Opinion

Justice Marshall argued that the plurality had misapplied Edwards. "When this Court in Edwards spoke of 'initiat further communication' with the police and 'reopen the dialogue with the authorities,' it obviously had in mind communication or dialogue about the subject matter of the criminal investigation." If a suspect is not inviting further questioning about the criminal case at hand, he is not acceding to further "interrogation" as Edwards and Miranda contemplated. If "interrogation" had any broader meaning, then the protections of Edwards and Miranda would be diluted.

Under the facts of this case, Marshall could not understand how Bradshaw's question was meant to express a desire to speak about the criminal case at hand. "If question had been posed by Jean-Paul Sartre before a class of philosophy students, it might well have evinced a desire for a 'generalized' discussion. But under the circumstances of this case, it is plain that only 'desire' was to find out where the police were going to take him." For Marshall, Bradshaw's question was nothing more than a response to custodial surroundings. "The very essence of custody is the loss of control over one's freedom of movement." If the police could exploit such questions as the one Bradshaw asked to ask further questions of an accused in the face of an express desire to have a lawyer present, the protections of Miranda would dissipate.