As a Massachusetts Criminal Defense Lawyer, one of the most important areas of law to understand is how to gets statements excluded as in violation of your clients rights under Miranda v. Arizona. In a serious case, the difference between winning and the client accepting a plea may be your ability to have the Court exclude statements from evidence.  In this Blog, we will review a few common issues that come up in suppressing statements under Miranda.  

What Warnings are Required under Miranda?

What warnings are police officers required to give to comply with Miranda?  One issue that may come up in a motion hearing is that the officer does not put on the record explicitly what rights were read to the defendant.  

Miranda warnings require that a defendant be in custody.  We will discuss what Custody means in Part II of this Blog.  

The defendant must be given the following warnings under Miranda:  that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that is he cannot afford a lawyer one will be appointed prior to any questioning if he so desires.  Further, that the defendant if he wishes to answer questions may terminate questioning at any time and seek a lawyer.  

The Commonwealth at a motion to suppress hearing has the burden of proving a voluntary, knowing and intelligent waiver after the warnings are given.  The United States Supreme Court and Massachusetts SJC have held that the responsibility for invoking Miranda rests with the criminal defendant.  

In this Blog, I would like to focus on when does a defendant invoke Miranda.  Recently, I had a third offense OUI out of the Brockton District Court, where ultimately my client was found not guilty.  However, the motion to suppress was denied and raised interesting issues.  The client allegedly said in response to questioning, I would like to help you out, but I think you got enough on me.  The officer continued questioning the defendant and elicited further incriminating statements.  

When is Miranda invoked by an in-custody defendant?

In Berghuis v. Thomkins, 130 S. Ct 2250 (2010), the United States Supreme Court set the standard for invoking Miranda under the 5th Amendment, holding that a defendant must unambiguously, announce their desire to remain silent.  The case of Commonwealth v. Clarke, 461 Mass. 336 (2012), addressed the standard to invoke Miranda under Article 12 of the Massachusetts Declaration of Rights.  The issue in Clarke, was that the defendant shock his head no when asked if he wants to speak.  The Commonwealth argued that the defendant must verbally articulate a desire to remain silent.  The SJC held that nonverbal conduct can invoke Miranda and that the Miranda decision itself contemplated this when the Court said that if the defendant indicates in any manner a wish to remain silent that request must be scrupulously honored.

Did the officer honor the invocation of Miranda by a defendant?

The Clarke case also raised another important issue under Miranda as to whether the police scrupulously honored the right to remain silent.  Can the police use an in-custody statement after the right to remain silent has been invoked? Courts will consider three questions in addressing this issue.  

1. Did the police immediate cease questioning; 
2. was questioning resumed after a significant period of time and a renewed advisement of Miranda
3. was the scope of the interrogation limited to a crime that had not been subject to the earlier interrogation. 

The SJC in Clarke suppressed the statements finding that the officer never ceased the interrogation once Miranda was invoked.  

The SJC address whether it would apply the same standard as the United States Supreme Court in Thomkins in addressing the issue of wavier under Article 12.  The SJC declined to require a defendant to invoke Miranda with utmost clarity.  The SJC quoted Justice Souter who wrote in a concurring opinion that criminal defendants are often in an unfamiliar atmosphere so it would be an odd group to require heightened linguistic care of.  The SJC found that a defendant’s invocation of Miranda must be scrupulously honored and if a person makes an ambiguous statement the police can simply ask for clarity.  The SJC stated that when law enforcement does not know if the person is invoking Miranda, it would be good police practice for the police to stop questioning and ask the suspect to make a choice.  If a person clearly invokes Miranda, the police officer is not allowed to continue questioning to create an ambiguity.  

Miranda issues can make or break a criminal case as a confession or statement of a suspect often can be the most important evidence in the case.  In the case I had recently from Brockton, the judge completely misinterpreted the Miranda decision finding that it requires actual coercion.  Instead, the judge missed the issue that the defendant invoked Miranda and the officer did not scrupulously honor it but continued questioning. The judge characterized the defendant’s actions as selectively invoking Miranda, missing the point that once he invoked Miranda all interrogation should have stopped and that the officers were not scrupulously honoring the defendant right to remain silent.  

If you have a case involving Miranda issues that you would like to discuss, feel free to contact me or review my Facebook page for updates on current issues in criminal defense.  To learn more about the right to remain silent and Miranda, be sure to read our blog on November 14th about what is means to be in custody to trigger your rights under Miranda.