Miranda Invocation and Waiver

If a suspect wants to assert either his right to counsel or his right to silence, it is up to him to do so, unequivocally and unambiguously.

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Miranda v. Arizona was decided in 1966. Courts have been struggling ever since with the task of applying it correctly. In the 2009-10 term that ended June 30, the U.S. Supreme Court decided three cases involving Miranda issues. In all three cases, the Supreme Court reversed lower court decisions. These three most recent decisions marked at least the 46th, 47th, and 48th times the court has tried to iron out the misunderstandings that continue to plague police, lawyers, and judges 44 years after Miranda was decided. (The 46th and 47th cases, Florida v. Powell and Maryland v. Shatzer, were discussed in our April and May issues, respectively.)

Although the latest decision, Berghuis v. Thompkins, was hailed by police and prosecutors and denounced by defense attorneys across the nation as a "retreat" from established Miranda precedent, it really was no such thing. Berghuis simply reaffirmed a principle that has been the rule since the 1979 decision in North Carolina v. Butler-a decision that many either overlooked or simply didn't believe, until now.

North Carolina V. Butler

Willie Butler and an accomplice robbed a gas station in Goldsboro, N.C. During the crime, the attendant was shot and paralyzed. He testified at trial. Investigating police officers also testified to incriminating statements Butler had made during custodial interrogation. Butler was convicted, and on appeal he argued that he had not expressly waived Miranda after the warnings were given, so his statements should not have been admitted.

The North Carolina Supreme Court reversed Butler's convictions, holding that Miranda required a "specific oral waiver" before custodial interrogation could begin. The U.S. Supreme Court reversed this ruling and rejected the proposition that an express waiver is necessary to satisfy its evidentiary holding in Miranda. In language that seems to have been overlooked by many (but not here at POLICE Magazine-see the May 1995 Point of Law article on implied waivers), the Supreme Court said this:

"An explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent or the right to counsel guaranteed by the Miranda case. In at least some cases, waiver can be clearly inferred from the actions and words of the person interrogated." (North Carolina v. Butler)

Because Butler had answered questions and made statements after receiving the warnings and acknowledging his understanding, the court held that his conduct established an implied waiver, sufficient to make his statements admissible under Miranda.

For the 31 years following Butler, some lower courts allowed implied waivers, while others resisted. Some law enforcement agencies trained officers to consider whether an express waiver or an implied waiver should be sought in a particular interrogation, while other agencies adopted policies requiring their officers to ask for express waivers in all cases. With the clear and unequivocal decision in Berghuis, there should be no more room for debate or disagreement.

Berghuis V. Thompkins

Van Chester Thompkins was arrested for committing murder in Michigan. Interrogating officers Mirandized him and obtained his acknowledgment that he understood his rights. Without seeking an express waiver, officers then began talking to Thompkins about the case. For two hours and 45 minutes, Thompkins remained largely silent, offering only an occasional "yes" or "no" or "I don't know," or a nod of his head.

Then when he was asked if he prayed to God to forgive him for shooting the victim, he said, "Yes." This answer was introduced in his trial as an admission of guilt, and Thompkins was convicted of murder and other crimes.

Although state courts upheld the convictions, the Sixth Circuit federal appeals court set aside the verdict, ruling that Thompkins had invoked his rights by remaining mostly silent and by not waiving before interrogation. On the state's appeal, the U.S. Supreme Court reversed this ruling. Repeatedly quoting from its earlier ruling in Butler, the court reaffirmed that Miranda waivers need not be express but may be implied. The court said that an implied waiver is shown when a person who has been warned and acknowledges his understanding makes a statement, or answers a question. The court stressed this point by repetition throughout the opinion:

"The prosecution does not need to show that a waiver of Miranda rights was express. An 'implicit waiver' of the right to remain silent is sufficient to admit a suspect's statement into evidence.

"Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent.

"Thus, after giving a Miranda warning [and getting an acknowledgment of understanding], police may interrogate a suspect who has neither invoked nor waived his or her Miranda rights.

"In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to police." (Berghuis v. Thompkins)

The Supreme Court said that if a suspect wants to assert either his right to counsel or his right to silence, it is up to him to do so, unequivocally and unambiguously. If the suspect responds to the warnings by saying something such as, "I don't want to talk," or "I want a lawyer," he has unambiguously invoked his rights. But if he makes a statement about the crime, or answers your questions, or even remains silent initially and then responds to questions (as Thompkins did), he has given an implied waiver, which is sufficient to make his statements admissible under Miranda.

The Miranda Two-Step

Historically, many agencies adopted a Miranda protocol that required officers to (1) recite the four-part warning, (2) ask the suspect if he understood, and then (3) ask whether he was willing to talk. Under Berghuis (as it has long been under Butler), asking whether the suspect wants to talk is optional with the interrogating officer. If the officer is confident the suspect wants to talk, an express waiver can be sought.

On the other hand, if the officer decides to rely on an implied waiver, the suspect need not be specifically asked whether he waives. Following a valid warning and acknowledgment of understanding, it is permissible under Butler and Berghuis to simply begin talking, and see if the suspect talks. If he does, his implied waiver satisfies Miranda.

No State-By-State Variations

In a few states, the courts interpret their state constitutions so as to give criminals greater protection against discovery of incriminating evidence of their guilt than the federal constitution provides. What states may not do is apply Miranda any differently than the U.S. Supreme Court. Miranda was based on the Fifth Amendment to the U.S. Constitution and must be applied the same everywhere, "since a state court can neither add to nor subtract from the mandates of the United States Constitution." (North Carolina v. Butler)

"A State may not impose greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them." (Oregon v. Hass) This means states could require express waivers of state-imposed rights but may not impose a requirement of express Miranda waivers.

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 12 books, including "Investigative Constitutional Law."

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DA Special Counsel
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