author: Justice Thomas Justice Scaua, Justice Breyer,

text:
    EGELHOFF v. EGELHOFF, a minor, by and through her natural parent, BREINER, et al.
    No. 99-1529.
    Argued November 8, 2000
    Decided March 21, 2001

      William J. Kilberg argued the cause for petitioner. With him on the briefs were Thomas G. Hungar and Henry Haas.

      Barbara McDowell argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Waxman, Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, Henry L. Solano, Nathaniel I. Spiller, and Elizabeth Hopkins.

      Thomas G. Goldstein argued the cause for respondents. With him on the brief were Erik S. Jaffe and Michael W. Jordan.

      Briefs of amici curiae urging reversal were filed for the AARP by Mary Ellen SignoHlle and Melvin Radowitz; for the Boeing Co. et al. by Bruce D. Corker, Kurt E. Lisnenmayer, Paul J. Ehlenbach, Loretta B. Kepler, Stephen A Bokat, and Jan Amundson; for the National Coordinating Committee for Multiemployer Plans by Denise M. Clark and Mark C. Nielsen; and for the Western Conference of Teamsters Pension Trust Fund by Robert S. Unger, Russell J. Reid, and Michael R. McCarthy.

      Briefs of amici curiae urging affirmance were filed for the State of Washington et al. by Christine 0. Gregoire, Attorney General of Washington, Jay D. Geek, Assistant Attorney General, and William Berggren Collins, Senior Assistant Attorney General, and by the Attorneys General for their respective States as follows: Mark Pryor of Arkansas, Ken Salazar of Colorado, Thomas F. Reilly of Massachusetts, Joseph P. Mazurek of Montana, W A Drew Edmondson of Oklahoma, Jan Graham of Utah, William H. Sorrell of Vermont, and Darrell V McGraw, Jr., of West Virginia; and for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley.

   Justice Thomas

delivered the opinion of the Court.

A Washington statute provides that the designation of a spouse as the beneficiary of a nonprobate asset is revoked automatically upon divorce. We are asked to decide whether the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832, 29 U.S.C. §1001 et seq., preempts that statute to the extent it applies to ERISA plans. We hold that it does.

I

Petitioner Donna Rae Egelhoff was married to David A. Egelhoff. Mr. Egelhoff was employed by the Boeing Company, which provided him with a life insurance policy and a pension plan. Both plans were governed by ERISA, and Mr. Egelhoff designated his wife as the beneficiary under both. In April 1994, the Egelhoffs divorced. Just over two months later, Mr. Egelhoff died intestate following an automobile accident. At that time, Mrs. Egelhoff remained the listed beneficiary under both the life insurance policy and the pension plan. The life insurance proceeds, totaling $46,000, were paid to her.

Respondents Samantha and David Egelhoff, Mr. Egelhoffs children by a previous marriage, are his statutory heirs under state law. They sued petitioner in Washington state court to recover the life insurance proceeds. Respondents relied on a Washington statute that provides:

“If a marriage is dissolved or invalidated, a provision made prior to that event that relates to the payment or transfer at death of the decedent’s interest in a nonpro-bate asset in favor of or granting an interest or power to the decedent’s former spouse is revoked. A provision affected by this section must be interpreted, and the nonprobate asset affected passes, as if the former spouse failed to survive the decedent, having died at the time of entry of the decree of dissolution or declaration of invalidity.” Wash. Rev. Code § 11.07.010(2)(a) (1994).

That statute applies to “all nonprobate assets, wherever situated, held at the time of entry by a superior court of this state of a decree of dissolution of marriage or a declaration of invalidity.” § 11.07.010(1). It defines “nonprobate asset” to include “a life insurance policy, employee benefit plan, annuity or similar contract, or individual retirement account.” § 11.07.010(5)(a).

Respondents argued that they were entitled to the life insurance proceeds because the Washington statute disqualified Mrs. Egelhoff as a beneficiary, and in the absence of a qualified named beneficiary, the proceeds would pass to them as Mr. Egelhoff’s heirs. In a separate action, respondents also sued to recover the pension plan benefits. Respondents again argued that the Washington statute disqualified Mrs. Egelhoff as a beneficiary and they were thus entitled to the benefits under the plan.

The trial courts, concluding that both the insurance policy and the pension plan “should be administered in accordance” with ERISA, granted summary judgment to petitioner in both eases. App. to Pet. for Cert. 46a, 48a. The Washington Court of Appeals consolidated the cases and reversed. In re Estate of Egelhoff, 98 Wash. App. 314, 968 P. 2d 924 (1998). It concluded that the Washington statute was not pre-empted by ERISA. Id., at 317, 968 P. 2d, at 925. Applying the statute, it held that respondents were entitled to the proceeds of both the insurance policy and the pension plan. Ibid.

The Supreme Court of Washington affirmed. 139 Wash. 2d 557, 989 P. 2d 80 (1999). It held that the state statute, although applicable to “employee benefit plan[s],” does not “refefr] to” ERISA plans to an extent that would require pre-emption, because it “does not apply immediately and exclusively to an ERISA plan, nor is the existence of such a plan essential to operation of the statute.” Id., at 574, 989 P. 2d, at 89. It also held that the statute lacks a “connection with” an ERISA plan that would compel pre-emption. Id., at 576,989 P. 2d, at 90. It emphasized that the statute “does not alter the nature of the plan itself, the administrator’s fiduciary duties, or the requirements for plan administration.” Id., at 575, 989 P. 2d, at 90. Nor, the court concluded, does the statute conflict with any specific provision of ERISA, including the antialienation provision, 29 U. S. C. § 1056(d)(1), because it “does not operate to divert benefit plan proceeds from distribution under terms of the plan documents,” but merely alters "the underlying circumstances to which the distribution scheme of [the] plan must be applied.” 139 Wash. 2d, at 578, 989 P. 2d, at 91.

Courts have disagreed about whether statutes like that of Washington are pre-empted by ERISA. Compare, e. g., Manning v. Hayes, 212 F. 3d 866 (CA5 2000) (finding preemption), cert. pending, No. 00-265, and Metropolitan Life Ins. Co. v. Hanslip, 939 F. 2d 904 (CA10 1991) (same), with, e. g., Emard v. Hughes Aircraft Co., 153 F. 3d 949 (CA9 1998) (finding no pre-emption), and 139 Wash. 2d, at 557, 989 P. 2d, at 80 (same). To resolve the conflict, we granted certiorari. 530 U. S. 1242 (2000).

II

Petitioner argues that the Washington statute falls within the terms of ERISA’s express pre-emption provision and that it is pre-empted by ERISA under traditional principles of conflict pre-emption. Because we conclude that the statute is expressly pre-empted by ERISA, we address only the first argument.

ERISA’s pre-emption section, 29 U. S. C. § 1144(a), states that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by ERISA. We have observed repeatedly that this broadly worded provision is “clearly expansive.” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655 (1995); see, e. g., Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384 (1992) (listing cases in which we have described ERISA pre-emption in broad terms). But at the same time, we have recognized that the term “relate to” cannot be taken “to extend to the furthest stretch of its indeterminacy,” or else “for all practical purposes pre-emption would never run its course.” Travelers, supra, at 655.

We have held that a state law relates to an ERISA plan “if it has a connection with or reference to such a plan.” Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 97 (1988). Petitioner focuses on the “connection with” part of this inquiry. Acknowledging that “connection with” is scarcely more restrictive than “relate to,” we have cautioned against an “uncritical literalism” that would make pre-emption turn on “infinite connections.” Travelers, supra, at 656. Instead, “to determine whether a state law has the forbidden connection, we look both to ‘the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,’ as well as to the nature of the effect of the state law on ERISA plans.” California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A, Inc., 519 U. S. 316, 325 (1997), quoting Travelers, supra, at 656 (citation omitted).

Applying this framework, petitioner argues that the Washington statute has an impermissible connection with ERISA plans. We agree. The statute binds ERISA plan administrators to a particular choice of rules for determining beneficiary status. The administrators must pay benefits to the beneficiaries chosen by state law, rather than to those identified in the plan documents. The statute thus implicates an area of core ERISA concern. In particular, it runs counter to ERISA’s commands that a plan shall “specify the basis on which payments are made to and from the plan,” § 1102(b)(4), and that the fiduciary shall administer the plan “in accordance with the documents and instruments governing the plan,” § 1104(a)(1)(D), making payments to a “beneficiary” who is “designated by a participant, or by the terms of [the] plan.” § 1002(8). In other words, unlike generally applicable laws regulating “areas where ERISA has nothing to say,” Dillingham, 519 U. S., at 330, which we have upheld notwithstanding their incidental effect on ERISA plans, see, e. g., ibid., this statute governs the payment of benefits, a central matter of plan administration.

The Washington statute also has a prohibited connection with ERISA plans because it interferes with nationally uniform plan administration. One of the principal goals of ERISA is to enable employers “to establish a uniform administrative scheme, which provides a set of standard procedures to guide processing of claims and disbursement of benefits.” Fort Halifax Packing Co. v. Coyne, 482 U. S. 1, 9 (1987). Uniformity is impossible, however, if plans are subject to different legal obligations in different States.

The Washington statute at issue here poses precisely that threat. Plan administrators cannot make payments simply by identifying the beneficiary specified by the plan documents. Instead they must familiarize themselves with state statutes so that they can determine whether the named beneficiary’s status has been "revoked” by operation of law. And in this context the burden is exacerbated by the choice-of-law problems that may confront an administrator when the employer is located in one State, the plan participant lives in another, and the participant’s former spouse lives in a third. In such a situation, administrators might find that plan payments are subject to conflicting legal obligations.

To be sure, the Washington statute protects administrators from liability for making payments to the named beneficiary unless they have "actual knowledge of the dissolution or other invalidation of marriage,” Wash. Rev. Code § 11.07.010(S)(a) (1994), and it permits administrators to refuse to make payments until any dispute among putative beneficiaries is resolved, § 11.07.010(3)(b). But if administrators do pay benefits, they will face the risk that a court might later find that they had “actual knowledge” of a divorce. If they instead decide to await the results of litigation before paying benefits, they will simply transfer to the beneficiaries the costs of delay and uncertainty. Requiring ERISA administrators to master the relevant laws of 50 States and to contend with litigation would undermine the congressional goal of “minimizing] the administrative and financial burden[s]” on plan administrators — burdens ultimately borne by the beneficiaries. Ingersoll-Rand Co. v. McClendon, 498 U.S. 138, 142 (1990).

We recognize that all state laws create some potential for a lack of uniformity. But differing state regulations affecting an ERISA plan's “system for processing claims and paying benefits” impose “precisely the burden that ERISA preemption was intended to avoid.” Fort Halifax, supra, at 10. And as we have noted, the statute at issue here directly conflicts with ERISA’s requirements that plans be administered, and benefits be paid, in accordance with plan documents. We conclude that the Washington statute has a “connection with” ERISA plans and is therefore pre-empted.

Ill

Respondents suggest several reasons why ordinary ERISA pre-emption analysis should not apply here. First, they observe that the Washington statute allows employers to opt out. According to respondents, the statute neither regulates plan administration nor impairs uniformity because it does not apply when “[t]he instrument governing disposition of the nonprobate asset expressly provides otherwise.” Wash. Rev. Code § 11.07.010(2)(b)(i) (1994). We do not believe that the statute is saved from pre-emption simply because it is, at least in a broad sense, a default rule.

Even though the Washington statute’s cancellation of private choice may itself be trumped by specific language in the plan documents, the statute does “dictate the ehoice[s] facing ERISA plans” with respect to matters of plan administration. Dillingham, supra, at 334. Plan administrators must either follow Washington’s beneficiary designation scheme or alter the terms of their plan so as to indicate that they will not follow it. The statute is not any less of a regulation of the terms of ERISA plans simply because there are two ways of complying with it. Of course, simple noneom-pliance with the statute is not one of the options available to plan administrators. Their only choice is one of timing, i. e., whether to bear the burden of compliance ex post, by paying benefits as the statute dictates (and in contravention of the plan documents), or ex ante, by amending the plan.

Respondents emphasize that the opt-out provision makes compliance with the statute less burdensome than if it were mandatory. That is true enough, but the burden that remains is hardly trivial. It is not enough for plan administrators to opt out of this particular statute. Instead, they must maintain a familiarity with the laws of all 50 States so that they can update their plans as necessary to satisfy the opt-out requirements of other, similar statutes. They also must be attentive to changes in the interpretations of those statutes by state courts. This “tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction” is exactly the burden ERISA seeks to eliminate. Ingersoll-Band, swpm, at 142.

Second, respondents emphasize that the Washington statute involves both family law and probate law, areas of traditional state regulation. There is indeed a presumption against pre-emption in areas of traditional state regulation such as family law. See, e. g., Hisquierdo v. Hisquierdo, 439 U. S. 572, 581 (1979). But that presumption can be overcome where, as here, Congress has made clear its desire for pre-emption. Accordingly, we have not hesitated to find state family law pre-empted when it conflicts with ERISA or relates to ERISA plans. See, e. g., Boggs v. Boggs, 520 U. S. 838 (1997) (holding that ERISA pre-empts a state community property law permitting the testamentary transfer of an interest in a spouse’s pension plan benefits).

Finally, respondents argue that if ERISA pre-empts this statute, then it also must pre-empt the various state statutes providing that a murdering heir is not entitled to receive property as a result of the killing. See, e. g., Cal. Prob. Code Ann. §§250-259 (West 1991 and Supp. 2000); 755 Ill. Comp. Stat., ch. 755, § 5/2 — 6 (1999). In the ERISA context, these "slayer” statutes could revoke the beneficiary status of someone who murdered a plan participant. Those statutes are not before us, so we do not decide the issue. We note, however, that the principle underlying the statutes — which have been adopted by nearly every State — is well established in the law and has a long historical pedigree predating ERISA. See, e. g., Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188 (1889). And because the statutes are more or less uniform nationwide, their interference with the aims of ERISA is at least debatable.

* * *

The judgment of the Supreme Court of Washington is reversed, and the ease is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Scaua,

with whom Justice Ginsburg joins,

concurring.

I join the opinion of the Court, since I believe that the "relate to” pre-emptive provision of the Employee Retirement Income Security Act of 1974 (ERISA) is assuredly triggered by a state law that contradicts ERISA. As the Court notes, "the statute at issue here directly conflicts with ERISA’s requirements that plans be administered, and benefits be paid, in accordance with plan documents.” Ante, at 150. I remain unsure (as I think the lower courts and everyone else will be) as to what else triggers the "relate to” provision, which — if it is interpreted to be anything other than a reference to our established jurisprudence concerning conflict and field pre-emption — has no discernible content that would not pick up every ripple in the pond, producing a result “that no sensible person could have intended.” California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 386 (1997) (Scalia, J., concurring). I persist in the view that we can bring some coherence to this area, and can give the statute both a plausible and precise content, only by interpreting the “relate to” clause as a reference to our ordinary pre-emption jurisprudence. See ibid.

Justice Breyer,

with whom Justice Stevens joins,

dissenting.

Like Justice Scalia, I believe that we should apply normal conflict pre-emption and field pre-emption principles where, as here, a state statute covers ERISA and non-ERISA documents alike. Ante this page (concurring opinion). Our more recent ERISA cases are consistent with this approach. See De Buono v. NYSA-ILA Medical and Clinical Services Fund, 520 U. S. 806, 812-813 (1997) (rejecting literal interpretation of ERISA’s pre-emption clause); California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 334 (1997) (narrowly interpreting the clause); New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 656 (1995) (“go[ing] beyond the unhelpful text [of the clause] and the frustrating difficulty of defining its key term, and look[ing] instead to the objectives of the ERISA statute as a guide”). See also Boggs v. Boggs, 520 U.S. 833, 841 (1997) (relying on conflict pre-emption principles instead of ERISA’s pre-emption clause). And I fear that our failure to endorse this “new approach” explicitly, Dillingham, supra, at 336 (Scalia, J., concurring), will continue to produce an “avalanche of litigation,” De Buono, supra, at 809, n. 1, as courts struggle to interpret a clause that lacks any “discernible content,” ante, at 15B (Scalia, J., concurring), threatening results that Congress could not have intended.

I do not agree with Justice Scalia or with the majority, however, that there is any plausible pre-emption principle that leads to a conclusion that ERISA pre-empts the statute at issue here. No one could claim that ERISA pre-empts the entire field of state law governing inheritance — though such matters “relate to” ERISA broadly speaking. See Travelers, supra, at 655. Neither is there any direet conflict between the Washington statute and ERISA, for the one nowhere directly contradicts the other. Cf. ante, at 150 (claiming a “direc[t] eonflic[t]” between ERISA and the Washington statute). But cf. ante, at 146 (relying upon the “relate to” language in ERISA’s pre-emption clause).

The Court correctly points out that ERISA requires a fiduciary to make payments to a beneficiary “in accordance with the documents and instruments governing the plan.” 29 U. S. C. § 1104(a)(1)(D). But nothing in the Washington statute requires the contrary. Rather, the state statute simply sets forth a default rule for interpreting documentary silence. The statute specifies that a nonprobate asset will pass at A’s death “as if” A’s “former spouse” had died first— unless the “instrument governing disposition of the non-probate asset expressly provides otherwise.” Wash. Rev. Code § 11.07.010(2)(b)(i) (1994) (emphasis added). This state-law rule is a rule of interpretation, and it is designed to carry out, not to conflict with, the employee’s likely intention as revealed in the plan documents.

There is no direct conflict or contradiction between the Washington statute and the terms of the plan documents here at issue. David Egelhoff’s investment plan provides that when a “beneficiary designation” is “invalid,” the “benefits will be paid” to a “surviving spouse,” or “[i]f there is no surviving spouse,” to the “children in equal shares.” App. 40. The life insurance plan is silent about what occurs when a beneficiary designation is invalid. The Washington statute fills in these gaps, i. e., matters about which the documents themselves say nothing. Thus, the Washington statute specifies that a beneficiary designation — here “Donna R. Egelhoff wife” in the pension plan — is invalid where there is no longer any such person as Donna R. Egelhoff, wife. See Appendix, infra. And the statute adds that in such instance the funds would be paid to the children, who themselves are potential pension plan beneficiaries.

The Court’s “direct conflict” conclusion rests upon its claim that “administrators must pay benefits to the beneficiaries chosen by state law, rather than to those identified in the plan documents.” Ante, at 147. But the Court cannot mean “identified anywhere in the plan documents,” for the Egelhoff children were “identified” as recipients in the pension plan documents should the initial designation to “Donna R. Egelhoff wife” become invalid. And whether that initial designation became invalid upon divorce is a matter about which the plan documents are silent.

To refer to state law to determine whether a given name makes a designation that is, or has become, invalid makes sense where background property or inheritance law is at issue, say, for example, where a written name is potentially ambiguous, where it is set forth near, but not in, the correct space, where it refers to a missing person perhaps presumed dead, where the name was written at a time the employee was incompetent, or where the name refers to an individual or entity disqualified by other law, say, the rule against per-petuities or rules prohibiting a murderer from benefiting from his crime. Why would Congress want the courts to create an ERISA-related federal property law to deal with such problems? Regardless, to refer to background state law in such circumstances does not directly conflict with any explicit ERISA provision, for no provision of ERISA forbids reading an instrument or document in light of state property law principles. In any event, in this case the plan documents explicitly foresee that a beneficiary designation may become “invalid,” but they do not specify the invalidating circumstances. Supra, at 154-155. To refer to state property law to fill in that blank cannot possibly create any direct conflict with the plan documents.

The majority simply denies that there is any blank to fill in and suggests that the plan documents require the plan to pay the designated beneficiary under all circumstances. See ante, at 147-148, n. 1. But there is nonetheless an open question, namely, whether a designation that (here explicitly) refers to a wife remains valid after divorce. The question is genuine and important (unlike the imaginary example in the majority’s footnote). The plan documents themselves do not answer the question any more than they describe what is to occur in a host of other special circumstances (e. g., mental incompetence, intoxication, ambiguous names, etc.). To determine whether ERISA permits state law to answer such questions requires a careful examination of the particular state law in light of ERISA’s basic policies. See ante, at 147; infra this page and 157-159. We should not short circuit that necessary inquiry simply by announcing a “direct conflict” where none exists.

The Court also complains that the Washington statute restricts the plan’s choices to “two.” Ante, at 150. But it is difficult to take this complaint seriously. After all, the two choices that Washington gives the plan are (1) to comply with Washington’s rule or (2) not to comply with Washington’s rule. What other choices could there be? A state statute that asks a plan to choose whether it intends to comply is not a statute that directly conflicts with a plan. Quite obviously, it is possible, not “‘impossible,’” to comply with both the Washington statute and federal law. Geier v. American Honda Motor Co., 529 U. S. 861, 873 (2000).

The more serious pre-emption question is whether this state statute “‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Ibid, (quoting Hines v. Davidowitz, 312 U. S. 52, 67 (1941)). In answering that question, we must remember that petitioner has to overcome a strong presumption against pre-emption. That is because the Washington statute governs family property law — a “fiel[d] of traditional state regulation,” where courts will not find federal preemption unless such was the “‘clear and manifest purpose of Congress,’ ” Travelers, 514 U. S., at 655 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)), or the state statute does “ ‘major damage’ to ‘clear and substantial’ federal interests,” Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting United States v. Yazell, 382 U. S. 341, 352 (1966)). No one can seriously argue that Congress has clearly resolved the question before us. And the only damage to federal interests that the Court identifies consists of the added administrative burden the state statute imposes upon ERISA plan administrators.

The Court claims that the Washington statute “interferes with nationally uniform plan administration” by requiring administrators to “familiarize themselves with state statutes.” Ante, at 148-149. But administrators have to familiarize themselves with state law in any event when they answer such routine legal questions as whether amounts due are subject to garnishment, Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 838 (1988), who is a “spouse,” who qualifies as a “child,” or when an employee is legally dead. And were that “familiarizing burden” somehow overwhelming, the plan could easily avoid it by resolving the divorce revocation issue in the plan documents themselves, stating expressly that state law does not apply. The “burden” thus reduces to a one-time requirement that would fall primarily upon the few who draft model ERISA documents, not upon the many who administer them. So meager a burden cannot justify pre-empting a state law that enjoys a presumption against pre-emption.

The Court also fears that administrators would have to make difficult choice-of-law determinations when parties live in different States. Ante, at 148-149. Whether this problem is or is not “major” in practice, the Washington statute resolves it by expressly setting forth procedures whereby the parties or the courts, not the plan administrator, are responsible for resolving it. See §§ 11.07.010(3)(b)(i) — (ii) (stating that a plan may “without liability, refuse to pay or transfer a nonprobate asset” until “[a]ll beneficiaries and other interested persons claiming an interest have consented in writing to the payment or transfer” or “[t]he payment or transfer is authorized or directed by a court of proper jurisdiction”); § 11.07.Q10(3)(c) (plan may condition payment on provision of security by recipient to indemnify plan for costs); § 11.07.010(2)(b)(i) (plan may avoid default rule by expressing its intent in the plan documents).

The Court has previously made clear that the fact that state law “impose[s] some burde[n] on the administration of ERISA plans” does not necessarily require pre-emption. De Buono, 520 U.S., at 815; Mackey, supra, at 831 (upholding state garnishment law notwithstanding claim that “benefit plans subjected to garnishment will incur substantial administrative burdens”). Precisely, what is it about this statute’s requirement that distinguishes it from the “‘myriad state laws’” that impose some kind of burden on ERISA plans? De Buono, supra, at 815 (quoting Travelers, supra, at 668).

Indeed, if one looks beyond administrative burden, one finds that Washington’s statute poses no obstacle, but furthers ERISA’s ultimate objective — developing a fair system for protecting employee benefits. Cf. Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717, 720 (1984). The Washington statute transfers an employee’s pension assets at death to those individuals whom the worker would likely have wanted to receive them. As many jurisdictions have concluded, divorced workers more often prefer that a child, rather than a divorced spouse, receive those assets. Of course, an employee can secure this result by changing a beneficiary form; but doing so requires awareness, understanding, and time. That is why Washington and many other jurisdictions have created a statutory assumption that divorce works a revocation of a designation in favor of an ex-spouse. That assumption is embodied in the Uniform Probate Code; it is consistent with human experience; and those with expertise in the matter have concluded that it “more often” serves the cause of “[j]ustice.” Langbein, The Nonprobate Revolution and the Future of the Law of Succession, 97 Harv. L. Rev. 1108, 1135 (1984).

In forbidding Washington to apply that assumption here, the Court permits a divorced wife, who already acquired, during the divorce proceeding, her fair share of the couple’s community property, to receive in addition the benefits that the divorce court awarded to her former husband. To be more specific, Donna Egelhoff already received a business, an IRA account, and stock; David received, among other things, 100% of his pension benefits. App. 31-34. David did not change the beneficiary designation in the pension plan or life insurance plan during the 6-month period between his divorce and his death. As a result, Donna will now receive a windfall of approximately $80,000 at the expense of David’s children. The State of Washington enacted a statute to prevent precisely this kind of unfair result. But the Court, relying on an inconsequential administrative burden, concludes that Congress required it.

Finally, the logic of the Court’s decision does not stop at divorce revocation laws. The Washington statute is virtually indistinguishable from other traditional state-law rules, for example, rules using presumptions to transfer assets in the case of simultaneous deaths, and rules that prohibit a husband who kills a wife from receiving benefits as a result of the wrongful death. It is particularly difficult to believe that Congress wanted to pre-empt the latter kind of statute. But how do these statutes differ from the one before us? Slayer statutes — like this statute — “gover[n] the payment of benefits, a central matter of plan administration.” Ante, at 148. And contrary to the Court’s suggestion, ante, at 152, slayer statutes vary from State to State in their details just like divorce revocation statutes. Compare Ariz. Rev. Stat. Ann. § 14-2803(F) (1995) (requiring proof, in a civil proceeding, under preponderance of the evidence standard); Haw. Rev. Stat. §56Q:2-803(g) (1999) (same), with Ga. Code Ann. § 53-1-5(d) (Supp. 1996) (requiring proof under clear and convincing evidence standard); Me. Rev. Stat. Ann., Tit. 18-A, §2-803(e) (1998) (same); and Ala. Code §43-8-253(e) (1991) (treating judgment of conviction as conclusive when it becomes final); Me. Rev. Stat. Ann., Tit. 18-A, §2-803(e) (1998) (same), with Ariz. Rev. Stat. Ann. § 14-2803(F) (1995) (treating judgment of conviction as conclusive only after “all right to appeal has been exhausted”); Haw. Rev. Stat. §560:2-803(g) (1999) (same). Indeed, the “slayer” conflict would seem more serious, not less serious, than the conflict before us, for few, if any, slayer statutes permit plans to opt out of the state property law rule.

“ERISA pre-emption analysis,” the Court has said, must “respect” the “separate spher[e]” of state “authority.” Fort Halifax Packing Co. v. Coyne, 482 U. S. 1, 19 (1987) (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 522 (1981)) (internal quotation marks omitted). In so stating, the Court has recognized the practical importance of preserving local independence, at retail, i. e., by applying pre-emption analysis with care, statute by statute, line by line, in order to determine how best to reconcile a federal statute’s language and purpose with federalism’s need to preserve state autonomy. Indeed, in today’s world, filled with legal complexity, the true test of federalist principle may lie, not in the occasional constitutional effort to trim Congress’ commerce power at its edges, United States v. Morrison, 529 U.S. 598 (2000), or to protect a State’s treasury from a private damages action, Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356 (2001), but rather in those many statutory eases where courts interpret the mass of technical detail that is the ordinary diet of the law, AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 427 (1999) (Breyer, J., concurring in part and dissenting in part).

In this case, “field pre-emption” is not at issue. There is no “direct” conflict between state and federal statutes. The state statute poses no significant obstacle to the accomplishment of any federal objective. Any effort to squeeze some additional pre-emptive force from ERISA’s words (i. e., “relate to”) is inconsistent with the Court’s recent case law. And the state statute before us is one regarding family property — a “fiel[d] of traditional state regulation,” where the interpretive presumption against pre-emption is particularly strong. Travelers, 514 U.S., at 655. For these reasons, I disagree with the Court’s conclusion. And, consequently, I dissent.

       One can of course escape the conflict between the plan documents (which require making payments to the named beneficiary) and the statute (which requires maMng payments to someone else) by calling the statute an “invalidation” of the designation of the named beneficiary, and by observing that the plan documents are silent on whether “invalidation” is to occur upon divorce. The dissent employs just such an approach. See post, at 155-156 (opinion of Breyer, J.). Reading a clear statement as an ambiguous metastatement enables one to avoid all kinds of conflicts between seemingly contradictory texts. Suppose, for example, that the statute required that all pension benefits be paid to the Governor of Washington. That seems inconsistent with the plan documents (and with ERISA), but the inconsistency disappears if one calls the statute an “invalidation” of the principal and alternate beneficiary designations. After all, neither the plan nor ERISA actually says that beneficiaries cannot be invalidated in favor of the Governor. This approach exploits the logical inability of any text to contain a complete set of instructions for its own interpretation. It has the vice — or perhaps the virtue, depending upon one’s point of view — of draining all language of its meaning.

       Respondents argue that in this case, the disposition dictated by the Washington statute is consistent with that specified in the plan documents. Because Mr. Egelhoff designated “Donna R. Egelhoff wife” as the beneficiary of the life insurance policy, they contend that once the Egelhoffe divorced, “there was no such person as ‘Donna R. Egelhoff wife) the designated person had definitionally ceased to exist.” Brief for Respondents 44 (emphasis in original); see also post, at 155 (BREYER, J., dissenting). In effect, respondents ask us to infer that what Mr. Egelhoff meant when he filled out the form was not “Donna R. Egelhoff, who is my wife,” but rather “a new legal person — -‘Donna as spouse/” Brief for Respondents 44. They do not mention, however, that below the “Beneficiary” line on the form, the printed text reads, “First Name [space] Middle Initial [space] Last Name [space] Relationship.” See Appendix to opinion of Breyer, 3., post. Rather than impute to Mr. Egelhoff the unnatural (and indeed absurd) literalism suggested by respondents, we conclude that he simply provided all of the information requested by the form. The happenstance that “Relationship” was on the same line as the beneficiary’s name does not, we think, evince an intent to designate “a new legal person.”

       The dissent observes that the Washington statute permits a plan administrator to avoid resolving the dispute himself and to let courts or parties settle the matter. See post, at 158. This observation only presents an example of how the costs of delay and uncertainty can be passed on to beneficiaries, thereby thwarting ERISA’s objective of efficient plan administration. Cf. Fort Halifax Packing Co. v. Coyne, 482 U. S. 1, 9 (1987).

       Contrary to the dissent's suggestion that the resolution of this ease depends on one’s view of federalism, see post, at 160-161, we are called upon merely to interpret ERISA. And under the text of ERISA, the fiduciary “shall” administer the plan “in accordance with the documents and instruments governing the plan,” 29 U.S. C. § 1104(a)(1)(D). The Washington statute conflicts with this command because under this statute, the only way the fiduciary can administer the plan according to its terms is to change the very terms he is supposed to follow.


source: Caselaw Access Project

author: Chief Justice Rehnquist Justice Kennedy, Justice Breyer,

license: Public Domain

text:
    TEXAS v. COBB
    No. 99-1702.
    Argued January 16, 2001
    Decided April 2, 2001

      Gregory S. Coleman, Solicitor General of Texas, argued the cause for petitioner. With him on the briefs were John Comyn, Attorney General, Andy Taylor, First Assistant Attorney General, and S. Kyle Duncan, Assistant Solicitor General.

      Lisa Schiavo Blatt argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Waxman, Assistant Attorney Gen

      eral Robinson, Deputy Solicitor General Dreeben, and Deborah Watson.

      Roy E. Greenwood, by appointment of the Court, 531U. S. 807, argued the cause for respondent. With him on the brief were David A. Schulman and Lee Haidusek

      Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Edward B. Foley, State Solicitor, David M. Gormley, Associate Solicitor, and Elise W. Porter and Norman E. Plate, Assistant Solicitors, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Bill Lockyer of California/ Ken Salazar of Colorado, John M. Bailey of Connecticut, Robert A. Butterworth of Florida, Carla J. Stovall of Kansas, Richard P. leyoub of Louisiana, Andrew Ketterer of Maine, Michael C. Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, W. A Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Mark L. Earley of Virginia, and Gay Woodhouse of Wyoming; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the National Association of Police Organizations et al, by Patrick F. Philbin and Stephen R. McSpadden.

        Sheri Lynn Johnson and Jeffrey J. Pokorak filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging affirmance.

        Stephen G. Tipps and Jennifer L. Walker Elrod filed a brief for the Texas District & County Attorneys Association et al. as amici curiae.

   Chief Justice Rehnquist

delivered the opinion of the Court.

The Texas Court of Criminal Appeals held that a criminal defendant's Sixth Amendment right to counsel attaches not only to the offense with which he is charged, but to other offenses “closely related factually” to the charged offense. We hold that our decision in McNeil v. Wisconsin, 501 U. S. 171 (1991), meant what it said, and that the Sixth Amendment right is “offense specific.”

In December 1993, Lindsey Owings reported to the Walker County, Texas, Sheriff’s Office that the home he shared with his wife, Margaret, and their 16-month-old daughter, Kori Rae, had been burglarized. He also informed police that his wife and daughter were missing. Respondent Raymond Levi Cobb lived across the street from the Owings. Acting on an anonymous tip that respondent was involved in the burglary, Walker County investigators questioned him about the events. He denied involvement. In July 1994, while under arrest for an unrelated offense, respondent was again questioned about the incident. Respondent then gave a written statement confessing to the burglary, but he denied knowledge relating to the disappearances. Respondent was subsequently indicted for the burglary, and Hal Ridley was appointed in August 1994 to represent respondent on that charge.

Shortly after Ridley’s appointment, investigators asked and received his permission to question respondent about the disappearances. Respondent continued to deny involvement. Investigators repeated this process in September 1995, again with Ridley’s permission and again with the same result.

In November 1995, respondent, free on bond in the burglary ease, was living with his father in Odessa, Texas. At that time, respondent’s father contacted the Walker County Sheriff’s Office to report that respondent had confessed to him that he killed Margaret Owings in the course of the burglary. Walker County investigators directed respondent’s father to the Odessa police station, where he gave a statement. Odessa police then faxed the statement to Walker County, where investigators secured a warrant for respondent’s arrest and faxed it back to Odessa. Shortly thereafter, Odessa police took respondent into custody and administered warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Respondent waived these rights.

After a short time, respondent confessed to murdering both Margaret and Kori Rae. Respondent explained that when Margaret confronted him as he was attempting to remove the Qwings’ stereo, he stabbed her in the stomach with a knife he was carrying. Respondent told police that he dragged her body to a wooded area a few hundred yards from the house. Respondent then stated:

“ ‘I went back to her house and I saw the baby laying on its bed. I took the baby out there and it was sleeping the whole time. I laid the baby down on the ground four or five feet away from its mother. I went back to my house and got a flat edge shovel. That’s all I could find. Then I went back over to where they were and I started digging a hole between them. After I got the hole dug, the baby was awake. It started going toward its mom and it fell in the hole. I put the lady in the hole and I covered them up. I remember stabbing a different knife I had in the ground where they were. I was crying right then.’ ” App. to Pet. for Cert. A-9 to A-10.

Respondent later led police to the location where he had buried the victims’ bodies.

Respondent was convicted of capital murder for murdering more than one person in the course of a single criminal transaction. See Tex. Penal Code Ann. § 19.03(a)(7)(A) (1994). He was sentenced to death. On appeal to the Court of Criminal Appeals of Texas, respondent argued, inter alia, that his confession should have been suppressed because it was obtained in violation of his Sixth Amendment right to counsel. Relying on Michigan v. Jackson, 475 U. S. 625 (1986), respondent contended that his right to counsel had attached when Ridley was appointed in the burglary case and that Odessa police were therefore required to secure Ridley’s permission before proceeding with the interrogation.

The Court of Criminal Appeals reversed respondent’s conviction by a divided vote and remanded for a new trial. The court held that “once the right to counsel attaches to the offense charged, it also attaches to any other offense that is very closely related factually to the offense charged.” 2000 WL 275644, *3 (2000) (citations omitted). Finding the capital murder charge to be “factually interwoven with the burglary,” the court concluded that respondent’s Sixth Amendment right to counsel had attached on the capital murder charge even though respondent had not yet been charged with that offense. Id., at *4. The court further found that respondent had asserted that right by accepting Ridley’s appointment in the burglary case. See ibid. Accordingly, it deemed the confession inadmissible and found that its introduction had not been harmless error. See id., at *4-*5. Three judges dissented, finding Michigan v. Jackson to be distinguishable and concluding that respondent had made a valid unilateral waiver of his right to counsel before confessing. See 2000 WL, at *5-*13 (opinion of McCormick, P. J.).

The State sought review in this Court, and we granted certiorari to consider first whether the Sixth Amendment right to counsel extends to crimes that are “factually related” to those that have actually been charged, and second whether respondent made a valid unilateral waiver of that right in this case. 530 U. S. 1260 (2000). Because we answer the first question in the negative, we do not reach the second.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the aeeused shall enjoy the right... to have the Assistance, of Counsel for his defence.” In McNeil v. Wisconsin, 501 U. S. 171 (1991), we explained when this right arises:

“The Sixth Amendment right [to counsel]... is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Id., at 175 (citations and internal quotation marks omitted).

Accordingly, we held that a defendant’s statements regarding offenses for which he had not been charged were admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses. See id., at 176.

Some state courts and Federal Courts of Appeals, however, have read into McNeil’s offense-specific definition an exception for crimes that aré “factually related” to a charged offense. Several of these courts have interpreted Brewer v. Williams, 430 U.S. 387 (1977), and Maine v. Moulton, 474 U.S. 159 (1985)—both of which were decided well before McNeil—to support this view, which respondent now invites us to approve. We decline to do so.

In Brewer, a suspect in the abduction and murder of a 10-year-old girl had fled from the scene of the erime in Des Moines, Iowa, some 160 miles east to Davenport, Iowa, where he surrendered to police. An arrest warrant was issued in Des Moines on a charge of abduction, and the suspect was arraigned on that warrant before a Davenport judge. Des Moines police traveled to Davenport, took the man into custody, and began the drive back to Des Moines. Along the way, one of the officers persuaded the suspect to lead police to the victim’s body. The suspect ultimately was convicted of the girl’s murder. This Court upheld the federal habeas court’s conclusion that police had violated the suspect’s Sixth Amendment right to counsel. We held that the officer’s comments to the suspect constituted interrogation and that the suspect had not validly waived his right to counsel by responding to the officer. See 430 U. S., at 405-406.

Respondent suggests that Brewer implicitly held that the right to counsel attached to the factually related murder when the suspect was arraigned on the abduction charge. See Brief for Respondent 4. The Court’s opinion, however, simply did not address the significance of the fact that the suspect had been arraigned only on the abduction charge, nor did the parties in any way argue this question. Constitutional rights are not defined by inferences from opinions which did not address the question at issue. Cf. Hagans v. Lavine, 415 U.S. 528, 535, n. 5 (1974) (“[W]hen questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us”).

Moulton is similarly unhelpful to respondent. That case involved two individuals indicted for a series of thefts, one of whom had secretly agreed to cooperate with the police investigation of his codefendant, Moulton. At the suggestion of police, the informant recorded several telephone calls and one face-to-face conversation he had with Moulton during which the two discussed their criminal exploits and possible alibis. In the course of those conversations, Moul-ton made various incriminating statements regarding both the thefts for which he had been charged and additional crimes. In a superseding indictment, Moulton was charged with the original crimes as well as burglary, arson, and three additional thefts. At trial, the State introduced portions of the recorded face-to-face conversation, and Moulton ultimately was convicted of three of the originally charged thefts plus one count of burglary. Moulton appealed his convictions to the Supreme Judicial Court of Maine, arguing that introduction of the recorded conversation violated his Sixth Amendment right to counsel. That court agreed, holding;

“‘Those statements may be admissible in the investigation or prosecution of charges for which, at the time the recordings were made, adversary proceedings had not yet commenced. But as to the charges for which Moul-ton’s right to counsel had already attached, his incriminating statements should have been ruled inadmissible at trial, given the circumstances in which they were acquired.’ ” 474 U. S., at 168 (quoting State v. Moulton, 481 A. 2d 155, 161 (1984)).

We affirmed.

Respondent contends that, in affirming reversal of both the theft and burglary charges, the Moulton Court must have concluded that Moulton’s Sixth Amendment right to counsel attached to the burglary charge. See Brief for Respondent 13-14; see also Brief for the National Association of Criminal Defense Lawyers et al. as Amici Curiae 22-23. But the Moulton Court did not address the question now before us, and to the extent Moulton spoke to the matter at all, it expressly referred to the offense-specific nature of the Sixth Amendment right to counsel:

“The police have an interest in the thorough investigation of crimes for which formal charges have already been filed. They also have an interest in investigating new or additional crimes. Investigations of either type of crime may require surveillance of individuals already under indictment. Moreover, law enforcement officials investigating an individual suspected of committing one crime and formally charged with having committed another crime obviously seek to discover evidence useful at a trial of either crime. In seeking evidence pertaining to 'pending charges, however, the Government’s investigative powers are limited by the Sixth Amendment rights of the accused.... On the other hand, to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities'.” 474 U. S., at 179-180 (emphasis added; footnote omitted).

See also id., at 168 (“[T]he purpose of their meeting was to discuss the pending charges”); id., at 177 (“[T]he police knew... that Moulton and [the informant] were meeting for the express purpose of discussing the pending charges ...” (emphasis added)). Thus, respondent’s reliance on Moulton is misplaced and, in light of the language employed there and subsequently in McNeil, puzzling.

Respondent predicts that the offense-specific rule will prove “disastrous” to suspects’ constitutional rights and will “permit law enforcement officers almost complete and total license to conduct unwanted and uncounseled interrogations.” Brief for Respondent 8-9. Besides offering no evidence that such a parade of horribles has occurred in those jurisdictions that have not enlarged upon McNeil, he fails to appreciate the significance of two critical considerations. First, there can be no doubt that a suspect must be apprised of his rights against compulsory self-incrimination and to consult with an attorney before authorities may conduct custodial interrogation. See Miranda v. Arizona, 384 U. S., at 479; Dickerson v. United States, 530 U.S. 428, 435 (2000) (quoting Miranda.). In the present ease, police scrupulously followed Miranda’s, dictates when questioning respondent. Second, it is critical to recognize that the Constitution does not negate society’s interest in the ability of police to talk to witnesses and suspects, even those who have been charged with other offenses.

“Since the ready ability to obtain uncoereed confessions is not an evil but an unmitigated good, society would be the loser. Admissions of guilt resulting from valid Miranda waivers ‘are more than merely “desirable”; they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.’ ” McNeil, 501U. S., at 181 (quoting Moran v. Burbine, 475 U. S. 412, 426 (1986)).

See also Moulton, supra, at 180 (“[T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities”).

Although it is clear that the Sixth Amendment right to counsel attaches only to charged offenses, we have reeog-nized in other contexts that the definition of an “offense” is not necessarily limited to the four corners of a charging instrument. In Blockburger v. United States, 284 U. S. 299 (1932), we explained that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id., at 304. We have since applied the Blockburger test to delineate the scope of the Fifth Amendment’s Double Jeopardy Clause, which prevents multiple or successive prosecutions for the “same offence.” See, e. g., Brown v. Ohio, 432 U. S. 161, 164-166 (1977). We see no constitutional difference between the meaning of the term “offense” in the contexts of double jeopardy and of the right to counsel. Accordingly, we hold that when the Sixth Amendment right to counsel attaches, it does encompass offenses that, even if not formally charged, would be considered the same offense under the Block-burger test.

While simultaneously conceding that its own test “lacks the precision for which police officers may hope,” post, at 186, the dissent suggests that adopting Blockburger’s definition of “offense” will prove difficult to administer. But it is the dissent’s vague iterations of the “ ‘closely related to’ ” or “‘inextricably intertwined with’” test, post, at 186, that would defy simple application. The dissent seems to presuppose that officers will possess complete knowledge of the circumstances surrounding an incident, such that the officers will be able to tailor their investigation to avoid addressing factually related offenses. Such an assumption, however, ignores the reality that police often are not yet aware of the exact sequence and scope of events they are investigating— indeed, that is why police must investigate in the first place. Deterred by the possibility of violating the Sixth Amendment, police likely would refrain from questioning certain defendants altogether.

It remains only to apply these principles to the facts at hand. At the time he confessed to Odessa police, respondent had been indicted for burglary of the Owings residence, but he had not been charged in the murders of Margaret and Kori Rae. As defined by Texas law, burglary and capital murder are not the same offense under Blockburger. Compare Tex. Penal Code Ann. § 30.02(a) (1994) (requiring entry into or continued concealment in a habitation or building) with § 19.03(a)(7)(A) (requiring murder of more than one person during a single criminal transaction). Accordingly, the Sixth Amendment right to counsel did not bar police from interrogating respondent regarding the murders, and respondent’s confession was therefore admissible.

The judgment of the Court of Criminal Appeals of Texas is reversed.

It is so ordered.

Justice Kennedy,

with whom Justice Scalia and Justice Thomas join,

concurring.

The Court’s opinion is altogether sufficient to explain why the decision of the Texas Court of Criminal Appeals should be reversed for failure to recognize the offense-specific nature of the Sixth Amendment right to counsel. It seems advisable, however, to observe that the Court has reached its conclusion without the necessity to reaffirm or give approval to the decision in Michigan v. Jackson, 475 U. S. 625 (1986). This course is wise, in my view, for the underlying theory of Jackson seems questionable.

As the facts of the instant ease well illustrate, it is difficult to understand the utility of a Sixth Amendment rule that operates to invalidate a confession given by the free choice of suspects who have received proper advice of. their Miranda rights but waived them nonetheless. See Miranda v. Arizona, 384 U. S. 436 (1966). The Miranda rule, and the related preventative rule of Edwards v. Arizona, 451 U. S. 477 (1981), serve to protect a suspect’s voluntary choice not to speak outside his lawyer’s presence. The parallel rule announced in Jackson, however, supersedes the suspect’s voluntary choice to speak with investigators. After Jackson had been decided, the Court made the following observation with respect to Edwards:

“Preserving the integrity of an accused’s choice to communicate with police only through counsel is the essence of Edwards and its progeny — not barring an accused from making an initial election as to whether he will face the State’s officers during questioning with the aid of counsel, or go it alone. If an accused ‘knowingly and intelligently’ pursues the latter course, we see no reason why the uncounseled statements he then makes must be excluded at his trial.” Patterson v. Illinois, 487 U. S. 285, 291 (1988).

There is little justification for not applying the same course of reasoning with equal force to the court-made preventative rule announced in Jackson; for Jackson, after all, was a wholesale importation of the Edwards rule into the Sixth Amendment.

In the instant case, Cobb at no time indicated to law enforcement authorities that he elected to remain silent about the double murder. By all indications, he made the voluntary choice to give his own account. Indeed, even now Cobb does not assert that he had no wish to speak at the time he confessed. While the Edwards rule operates to preserve the free choice of a suspect to remain silent, if Jackson were to apply it would override that ehoice.

There is further reason to doubt the wisdom of the Jackson holding. Neither Miranda nor Edwards enforces the Fifth Amendment right unless the suspect makes a clear and unambiguous assertion of the right to the presence of counsel during custodial interrogation. Davis v. United States, 512 U. S. 452,459 (1994). Where a required Miranda warning has been given, a suspect’s later confession, made outside counsel’s presence, is suppressed to protect the Fifth Amendment right of silence only if a reasonable officer should have been certain that the suspect expressed the unequivocal election of the right.

The Sixth Amendment right to counsel attaches quite without reference to the suspect’s choice to speak with investigators after a Miranda warning. It is the commencement of a formal prosecution, indicated by the initiation of adversary judicial proceedings, that marks the beginning of the Sixth Amendment right. See ante, at 167-168 (quoting McNeil v. Wisconsin, 501 U. S. 171, 175 (1991)). These events máy be quite independent of the suspect’s election to remain silent, the interest which the Edwards rule serves to protect with respect to Miranda and the Fifth Amendment, and it thus makes little sense for a protective rule to attach absent such an election by the suspect. We ought to question the wisdom of a judge-made preventative rule to protect a suspect’s desire not to speak when it cannot be shown that he had that intent.

Even if Jackson is to remain good law, its protections should apply only where a suspect has made a clear and unambiguous assertion of the right not to speak outside the presence of counsel, the same clear election required under Edwards. Cobb made no such assertion here, yet Justice Bkeyer’s dissent rests upon the assumption that the Jackson rule should operate to exclude the confession no matter. There would be little justification for this extension of a rule that, even in a more limited application, rests on a doubtful rationale.

Justice Breyer defends Jackson by arguing that, once a suspect has accepted counsel at the commencement of adversarial proceedings, he should not be forced to confront the police during interrogation without the assistance of counsel. See post, at 179-181. But the acceptance of counsel at an arraignment or similar proceeding only begs the question: acceptance of counsel for what? It is quite unremarkable that a suspect might want the assistance of an expert in the law to guide him through hearings and trial, and the attendant complex legal matters that might arise, but nonetheless might choose to give on his own a forthright account of the events that occurred. A court-made rule that prevents a suspect from even making this choice serves little purpose, especially given the regime of Miranda and Edwards.

With these further remarks, I join in full the opinion of the Court.

Justice Breyer,

with whom Justice Stevens, Justice Souter, and Justice Ginsburg join,

dissenting.

This case focuses upon the meaning of a single word, “offense,” when it arises in the context of the Sixth Amendment. Several basic background principles define that context.

First, the Sixth Amendment right to counsel plays a central role in ensuring the fairness of criminal proceedings in our system of justice. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963); Powell v. Alabama, 287 U.S. 45, 57 (1932).

Second, the right attaches when adversary proceedings, triggered by the government’s formal accusation of a crime, begin. See Brewer v. Williams, 430 U.S. 387, 401 (1977); Kirby v. Illinois, 406 U. S. 682, 689 (1972); Massiah v. United States, 377 U.S. 201, 206 (1964).

Third, once this right attaches, law enforcement officials are required, in most circumstances, to deal with the defendant through counsel rather than directly, even if the defendant has waived his Fifth Amendment rights. See Michigan v. Jackson, 475 U.S. 625, 633, 636 (1986) (waiver of right to presence of counsel is assumed invalid unless accused initiates communication); Maine v. Moulton, 474 U.S. 159, 176 (1985) (Sixth Amendment gives defendant right “to rely on counsel as a ‘medium’ between him and the State”). Cf. ABA Model Rule of Professional Conduct 4.2 (2001) (lawyer is generally prohibited from communicating with a person known to be represented by counsel “about the subject of the representation” without counsel’s “consent”); Green, A Prosecutor’s Communications with Defendants: What Are the Limits?, 24 Crim. L. Bull. 288, 284, and n. 5 (1988) (version of Model Rule 4.2 or its predecessor has been adopted by all 50 States).

Fourth, the particular aspect of the right here at issue— the rule that the police ordinarily must communicate with the defendant through counsel — has important limits. In particular, recognizing the need for law enforcement officials to investigate “new or additional crimes” not the subject of current proceedings, Maine v. Moulton, supra, at 179, this Court has made clear that the right to counsel does not attach to any and every crime that an accused may commit or have committed, see McNeil v. Wisconsin, 501 U. S. 171, 175-176 (1991). The right “cannot be invoked once for all future prosecutions,” and it does not forbid “interrogation unrelated to the charge.” Id., at 175, 178. In a word, as this Court previously noted, the right is “offense specific.” Id., at 175.

This case focuses upon the last-mentioned principle, in particular upon the meaning of. the words “offense specific.” These words appear in this Court’s Sixth Amendment ease law, not in the Sixth Amendment’s text. See U. S. Const., Arndt. 6 (guaranteeing right to counsel “[i]n all criminal prosecutions”). The definition of these words is not self-evident. Sometimes the term “offense” may refer to words that are written in a criminal statute; sometimes it may refer generally to a course of conduct in the world, aspects of which constitute the elements of one or more erimes; and sometimes it may refer, narrowly and technically, just to the conceptually severable aspects of the latter. This case requires us to determine whether an "offense” — for Sixth Amendment purposes — ineludes factually related aspects of a single course of conduct other than those few acts that make up the essential .elements of the crime charged.

We should answer this question in light of the Sixth Amendment’s basic objectives as set forth in this Court’s case law. At the very least, we should answer it in a way that does not undermine those objectives. But the Court today decides that “offense” means the crime set forth within “the four corners of a charging instrument,” along with other crimes that “would be considered the same offense” under the test established by Blockburger v. United States, 284 U. S. 299 (1982). Ante, at 173. In my view, this unnecessarily technical definition undermines Sixth Amendment protections while doing nothing to further effective law enforcement.

For one thing, the majority’s rule, while leaving the Fifth Amendment’s protections in place, threatens to diminish severely the additional protection that, under this Court’s rulings, the Sixth Amendment provides when it grants the right to counsel to defendants who have been charged with a crime and insists that law enforcement officers thereafter communicate with them through that counsel. See, e.g., Michigan v. Jackson, supra, at 632 (Sixth Amendment prevents police from questioning represented defendant through informants even when Fifth Amendment would not); Rhode Island v. Innis, 446 U.S. 291, 300, n. 4 (1980) (Fifth Amendment right, unlike Sixth, applies only in custodial interrogation).

Justice Kennedy, Justice Scalia, and Justice Thomas, if not the majority, apparently believe these protections constitutionally unimportant, for, in their view, “the underlying theory of Jackson seems questionable.” Ante, at 174 (Kennedy, J., concurring). Both the majority and concurring opinions suggest that a suspect’s ability to invoke his Fifth Amendment right and “refuse any police questioning” offers that suspect adequate constitutional protection. Ante, at 172, n. 2 (majority opinion); see also ante, at 175-176 (Kennedy, J., concurring). But that is not so.

Jackson focuses upon a suspect — perhaps a frightened or uneducated suspect — who, hesitant to rely upon his own unaided judgment in his dealings with the police, has invoked his constitutional right to legal assistance in such matters. See Michigan v. Jackson, 475 U.S., at 634, n. 7 (“‘The simple fact that [a] defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly' ”) (quoting People v. Bladel, 421 Mich. 39, 63-64, 365 N. W. 2d 56, 67 (1984)). Jackson says that, once such a request has been made, the police may not simply throw that suspect — who does not trust his own unaided judgment — back upon his own devices by requiring him to rely for protection upon that same unaided judgment that he previously rejected as inadequate. In a word, the police may not force a suspeet who has asked for legal counsel to make a critical legal choice without the legal assistance that he has requested and that the Constitution guarantees. See McNeil v. Wisconsin, supra, at 177-178 (“The purpose of the Sixth Amendment counsel guarantee ... is to ‘protec[t] the unaided layman at critical confrontations’ with his ‘expert adversary' ”) (quoting United States v. Gouveia, 467 U.S. 180, 189 (1984)). The Constitution does not take away with one hand what it gives with the other. See Gideon v. Wainwright, 372 U. S., at 344 (Sixth Amendment means that a person charged with a crime need not “face his accusers without a lawyer to assist him”); Michigan v. Jackson, supra, at 633, 635 (presuming “that the defendant requests the lawyer’s services at every critical stage of the prosecution” even if the defendant fails to invoke his Fifth Amendment rights at the time of interrogation); cf. Edwards v. Arizona, 451 U.S. 477, 484-485 (1981) (when accused has expressed desire to deal with police through counsel, police may not reinitiate interrogation until counsel has been made available); ABA Ann. Model Rule of Professional Conduct 4.2, p. 398, comment. (4th ed. 1999) (“Rule 4.2 .. . exists to prevent lawyers from taking advantage of uncounseled laypersons and to preserve the integrity of the lawyer-client relationship”).

For these reasons, the Sixth Amendment right at issue is independent of the Fifth Amendment’s protections; and the importance of this Sixth Amendment right has been repeatedly recognized in our cases. See, e. g., Michigan v. Jackson, supra, at 686 (“We conclude that the assertion [of the right to counsel] is no less significant, and the need for additional safeguards no less clear, when the request for counsel is made at an arraignment and when the basis for the claim is the Sixth Amendment”).

Justice Kennedy primarily relies upon Patterson v. Illinois, 487 U.S. 285 (1988), in support of his conclusion that Jackson is not good law. He quotes Patterson's statement that the Constitution does “‘not ba[r] an accused from making an initial election as to whether’” to speak with the police without counsel’s assistance. Ante, at 175 (quoting Patterson v. Illinois, supra, at 291).

This statement, however, cannot justify the overruling of Jackson. That is because, in Patterson itself, this Court noted, “as a matter of some significance,” that, at the time he was interrogated, the defendant had neither retained nor accepted the appointment of counsel. 487 U.S., at 290, n. 3. We characterized our holding in Jackson as having depended upon “the faet that the accused ‘ha[d] asked for the help of a lawyer’ in dealing with the police,” 487 U.S., at 291 (quoting Michigan v. Jackson, supra, at 631), and explained that, “[o]nce an accused has a lawyer, a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorney-client relationship takes effect,” 487 U. S., at 290, n. 3 (citing Maine v. Moulton, 474 U. S., at 176).

Justice Kennedy also criticizes Jackson on the ground that it prevents a suspect “from ... making th[e] choice” to “give ... a forthright account of the events that occurred.” Ante, at 177. But that is not so. A suspect may initiate communication with the police, thereby avoiding the risk that the police induced him to make, unaided, the kind of critical legal decision best made with the help of counsel, whom he has requested.

Unlike Justice Kennedy, the majority does not call Jackson itself into question. But the majority would undermine that case by significantly diminishing the Sixth Amendment protections that the ease provides. That is because criminal codes are lengthy and highly detailed, often proliferating “overlapping and related statutory offenses” to the point where prosecutors can easily “spin out a startlingly numerous series of offenses from a single ... criminal transaction.” Ashe v. Swenson, 897 U. S. 436, 445, n. 10 (1970). Thus, an armed robber who reaches across a store counter, grabs the cashier, and demands “your money or your life,” may through that single instance of conduct have committed several “offenses,” in the majority’s sense of the term, including armed robbery, assault, battery, trespass, use of a firearm to commit a felony, and perhaps possession of a firearm by a felon, as well. A person who is using and selling drugs on a single occasion might be guilty of possessing various drugs, conspiring to sell drugs, being under the influence of illegal drugs, possessing drug paraphernalia, possessing a gun in relation to the drug sale, and, depending upon circumstances, violating various gun laws as well. A protester blocking an entrance to a federal building might also be trespassing, failing to disperse, unlawfully assembling, and obstructing Government administration all at one and the same time.

The majority’s rule permits law enforcement officials to question those charged with a crime without first approaching counsel, through the simple device of asking questions about any other related crime not actually charged in the indictment. Thus, the police could ask the individual charged with robbery about, say, the assault of the cashier not yet charged, or about any other uncharged offense (unless under Blockburger’s definition it counts as the “same crime”), all without notifying counsel. Indeed, the majority’s rule would permit law enforcement officials to question anyone charged with any crime in any one of the examples just given about his or her conduct on the single relevant occasion without notifying counsel unless the prosecutor has charged every possible crime arising out of that same brief course of conduct. What Sixth Amendment sense— what common sense — does such a rule make? What is left of the “communicate through counsel” rule? The majority’s approach is inconsistent with any common understanding of the scope of counsel’s representation. It will undermine the lawyer’s role as “‘medium’” between the defendant and the government. Maine v. Moulton, supra, at 176. And it will, on a random basis, remove a significant portion of the protection that this Court has found inherent in the Sixth Amendment.

In fact, under the rule today announced by the majority, two of the seminal eases in our Sixth Amendment jurisprudence would have come out differently. In Maine v. Moulton, which the majority points out “expressly referred to the offense-specific nature of the Sixth Amendment right to counsel,” ante, at 170, we treated burglary and theft as the same offense for Sixth Amendment purposes. Despite the opinion’s clear statement that “[i]neriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses,” 474 U.S., at 180, n. 16, the Court affirmed the lower court’s reversal of both burglary and theft charges even though, at the time that the incriminating statements at issue were made, Moulton had been charged only with theft by receiving, id., at 162, 167, 180. Under the majority’s rule, in contrast, because theft by receiving and burglary each required proof of a fact that the other did not, only Moulton’s theft convictions should have been overturned. Compare Me. Rev. Stat. Ann., Tit. 17-A, §359 (1981) (theft) (requiring knowing receipt, retention, or disposal of stolen property with the intent to deprive the owner thereof), with §401 (burglary) (requiring entry of a structure without permission and with the intent to commit a crime).

In Bremer v. Williams, the effect of the majority’s rule would have been even more dramatic. Because first-degree murder and child abduction each required proof of a fact not required by the other, and because at the time of the impermissible interrogation Williams had been charged only with abduction of a child, Williams’ murder conviction should have remained undisturbed. See 430 U.S., at 390, 393-395, 406. Compare Iowa Code §690.2 (1950 and Supp. 1978) (first-degree murder) (requiring a killing) with Iowa Code §706.2 (1950) (repealed 1978) (child-stealing) (requiring proof that a child under 16 was taken with the intent to conceal the child from his or her parent or guardian). This is not to suggest that this Court has previously addressed and decided the question presented by this case. Rather, it is to point out that the Court’s conception of the Sixth Amendment right at the time that Moulton and Brewer were decided naturally presumed that it extended to factually related but uncharged offenses.

At the same time, the majority’s rule threatens the legal clarity necessary for effective law enforcement. That is because the majority, aware that the word “offense” ought to encompass something beyond “the four corners of the charging instrument,” imports into Sixth Amendment law the definition of “offense” set forth in Blockburger v. United States, 284 U.S. 299 (1932), a ease interpreting the Double Jeopardy Clause of the Fifth Amendment, which Clause uses the word “offence” but otherwise has no relevance here. Whatever Fifth Amendment virtues Block- burger may have, to import it into this Sixth Amendment context will work havoc.

In theory, the test says that two offenses are the “same offense” unless each requires proof of a fact that the other does not. See ante, at 173 (majority opinion). That means that most of the different crimes mentioned above are not the “same offense.” Under many States’ laws, for example, the statute defining assault and the statute defining robbery each requires proof of a fact that the other does not. Compare, e. g., Cal. Penal Code Ann. §211 (West 1999) (robbery) (requiring taking of personal property of another) with §240 (assault) (requiring attempt to commit violent injury). Hence the extension of the definition of “offense” that is accomplished by the use of the Blockburger test does nothing to address the substantial concerns about the circumvention of the Sixth Amendment right that are raised by the majority’s rule.

But, more to the point, the simple-sounding Blockburger test has proved extraordinarily difficult to administer in practice. Judges, lawyers, and law professors often disagree about how to apply it. See, e.g., United States v. Woodward, 469 U. S. 105, 108 (1985) (per curiam) (holding that lower court misapplied Blockburger test). Compare United States v. Dixon, 509 U. S. 688,697-700 (1993) (opinion of Scalia, J.) (applying Blockburger and concluding that contempt is same offense as underlying substantive crime), with 509 U.S., at 716-720 (Rehnquist, C. J., concurring in part and dissenting in part) (applying Blockburger and deciding that the two are separate offenses). The test has emerged as a tool in an area of our jurisprudence that The CHIEF Justice has described as “a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator.” Albernaz v. United States, 450 U.S. 333, 343 (1981). Yet the Court now asks, not the lawyers and judges who ordinarily work with double jeopardy law, but police officers in the field, to navigate Blockburger when they question suspects. Cf. New York v. Belton, 453 U.S. 454, 458 (1981) (noting importance of clear rules to guide police behavior). Some -will apply the test successfully; some will not. Legal challenges are inevitable. The result, I believe, will resemble not so much the Sargasso Sea as the criminal law equivalent of Milton’s “Serbonian Bog... Where Armies whole have sunk.”

There is, of course, an alternative. We can, and should, define “offense” in terms of the conduct that constitutes the crime that the offender committed on a particular occasion, including criminal acts that are “closely related to” or “inextricably intertwined with” the particular crime set forth in the charging instrument. This alternative is not perfect. The language used lacks the precision for which police officers may hope; and it requires lower courts to specify its meaning further as they apply it in individual cases. Yet virtually every lower court in the United States to consider the issue has defined “offense” in the Sixth Amendment context to encompass such closely related acts. See ante, at 168, n. 1 (majority opinion) (citing cases from the Third, Fourth, Fifth, Sixth, and Ninth Circuits as well as state courts in Massachusetts and Pennsylvania); Taylor v. State, 726 So. 2d 841, 845 (Fla. App. 1999); People v. Clankie, 124 Ill. 2d 456, 462-466, 530 N. E. 2d 448, 451-453 (1988); State v. Tucker, 137 N. J. 259, 277-278, 645 A. 2d 111, 120-121 (1994), cert. denied, 513 U. S. 1090 (1995). These courts have found offenses “closely related” where they involved the same victim, set of acts, evidence, or motivation. See, e. g., Taylor v. State, supra, at 845 (stolen property charges and burglary); State v. Tucker, supra, at 278, 645 A. 2d, at 121 (burglary, robbery, and murder of home’s occupant); In re Pack, 420 Pa. Super. 347, 355-356, 616 A. 2d 1006, 1010 (1992) (burglary, receiving stolen property, and theft charges), appeal denied, 535 Pa. 669, 634 A. 2d 1117 (1993). They have found offenses unrelated where time, location, or factual circumstances significantly separated the one from the other. See, e. g., Commonwealth v. Rainwater, 425 Mass. 540, 547-549, and n. 7, 681 N. E. 2d 1218, 1224, and n. 7 (1997) (vehicle theft charge and earlier vehicle thefts in same area), cert. denied, 522 U. S. 1095 (1998); Whittlesey v. State, 340 Md. 30, 56-57, 665 A. 2d 223, 236 (1995) (murder and making false statements charges), cert. denied, 516 U. S. 1148 (1996); People v. Dotson, 214 Ill. App. 3d 637, 646, 574 N. E. 2d 143, 149 (murder and weapons charges), appeal denied, 141 Ill. 2d 549, 580 N. E. 2d 123 (1991).

One cannot say in favor of this commonly followed approach that it is perfectly clear — only that, because it comports with common sense, it is far easier to apply than that of the majority. One might add that, unlike the majority’s test, it is consistent with this Court’s assumptions in previous eases. See Maine v. Moulton, 474 U.S., at 162, 167, 180 (affirming reversal of both burglary and theft convictions); Brewer v. Williams, 430 U.S., at 389, 390, 393, 406 (affirming grant of habeas which vacated murder conviction). And, most importantly, the “closely related” test furthers, rather than undermines, the Sixth Amendment’s “right to counsel,” a right so necessary to the realization in practice of that most “noble ideal,” a fair trial. Gideon v. Wainwright, 372 U.S., at 344.

The Texas Court of Criminal Appeals, following this commonly accepted approach, found that the charged burglary and the uncharged murders were “closely related.” AU occurred during a short period of time on the same day in the same basic location. The victims of the murders were also victims of the burglary. Cobb committed one of the murders in furtherance of the robbery, the other to cover up the crimes. The police, when questioning Cobb, knew that he already had a lawyer representing him on the burglary charges and had demonstrated their belief that this lawyer also represented Cobb in respect to the murders by asking his permission to question Cobb about the murders on previous occasions. The relatedness of the crimes is well illustrated by the impossibility of questioning Cobb about the murders without eliciting admissions about the burglary. See, e. g., Tr. 157 (Feb. 19, 1997) (testimony by police officer who obtained murder confession) (“Basically what he told us is he had gone over to the house to burglarize it and nobody was home”); 22 Record, State’s Exh. 20 (typed statement by Cobb) (admitting that he committed the murders after entering the house and stealing stereo parts). Nor, in my view, did Cobb waive his right to counsel. See supra, at 180-181. These considerations are sufficient. The police officers ought to have spoken to Cobb’s counsel before questioning Cobb. I would affirm the decision of the Texas court.

Consequently, I dissent.

       See, e.g., United States v. Covarrubias, 179 F. 3d 1219, 1223-1224 (CA9 1999); United States v. Melgar, 139 F. 3d 1005, 1013 (CA4 1998); United States v. Doherty, 126 F. 3d 769, 776 (CA6 1997); United States v. Arnold, 106 F. 3d 37, 41 (CA3 1997); United States v. Williams, 993 F. 2d 451, 457 (CA5 1993); Commonwealth v. Rainwater, 425 Mass. 540,556, 681 N. E. 2d 1218, 1229 (1997); In re Pack, 420 Pa. Super. 347, 354-356, 616 A. 2d 1006,1010-1011 (1992).

       Curiously, while predicting disastrous consequences for the core values underlying the Sixth Amendment, see post, at 179-183 (opinion of Breyek, J.), the dissenters give short shrift to the Fifth Amendment’s role (as expressed in Miranda and Dickerson) in protecting a defendant’s right to consult with counsel before talking to police. Even though the Sixth Amendment right to counsel has not attached to uncharged offenses, defendants retain the ability under Miranda to refuse any police questioning, and, indeed, charged defendants presumably have met with counsel and have had the opportunity to discuss whether it is advisable to invoke those Fifth Amendment rights. Thus, in all but the rarest of cases, the Court’s decision today will have no impact whatsoever upon a defendant’s ability to protect his Sixth Amendment right.
      It is also worth noting that, contrary to the dissent’s suggestion, see post, at 177-178, 179, there is no “background principle” of our Sixth Amendment jurisprudence establishing that there may be no contact between a defendant and police without counsel present. The dissent would expand the Sixth Amendment right to the assistance of counsel in a criminal prosecution into a rule which “‘exists to prevent lawyers from taking advantage of uncounseled laypersons and to preserve the integrity of the lawyer-client relationship.’ ” Post, at 181 (quoting ABA Aim. Model Rule of Profesional Conduct 4.2 (4th ed. 1999)). Every profession is competent to define the standards of conduct for its members, but such standards are obviously not controlling in interpretation of constitutional provisions. The Sixth Amendment right to counsel is personal to the defendant and specific to the offense.

       In this sense, we could just as easily describe the Sixth Amendment as “prosecution specific,” insofar as it prevents discussion of charged offenses as well as offenses that, under Blockburger, could not be the subject of a later prosecution. And, indeed, the text of the Sixth Amendment confines its scope to “all criminal prosecutions.”