SJC Holds that a Headshake is Sufficient to Invoke the Miranda Right to Remain Silent

Criminal Procedure: SJC Departs from the Federal Standard of Pre-Waiver Invocation of Miranda: Commonwealth v. Clarke, SJC-10816

Overview: The Supreme Judicial Court, in determining whether a defendant’s headshake indicating refusal to talk before the defendant waived his Miranda rights during a custodial interrogation, held that such conduct was sufficient to invoke the right to remain silent under the Fifth Amendment of the United States Constitution and Article 12 of the of the Massachusetts Declaration of Rights—leading to suppression of a subsequent confession. In doing so, the SJC departed from the Federal Constitution’s standard enunciated by the Supreme Court in Berghuis v. Thompkins—which held that a defendant must unambiguously invoke their right to remain silent, whether before or after waiver of their Miranda rights. The rule announced by the SJC in this case significantly impacts the Miranda waiver and invocation analysis in Massachusetts, affords criminal defendants substantially higher protection, and divides the analysis into two distinct ‘timelines’ during the custodial interrogation event—pre-waiver and post-waiver.

To properly understand the SJC’s new rule and how it departs from the federal standard, a brief recap of the Supreme Court’s rule in Thompkins is necessary followed by a detailed outline of the SJC’s holding and potential impact on criminal defendants.

Berghuis v. Thompkins: In Thompkins, the Supreme Court held that “[a] suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives his right to remain silent by making an uncoerced statement to the police.” Critically, the Court held that “an accused who wants to invoke his or her right to remain silent, [whether pre-waiver or post-waiver], must do so unambiguously.” In Thompkins, the defendant refused to sign a Miranda waiver and, although he did not explicitly invoke his rights, remained silent for about 2 hours and 45 minutes before making an incriminating statement. Therefore, based on the foregoing facts, the Court found that the defendant’s refusal to sign a waiver form and subsequent silence did not meet the heightened requirement of an “unambiguous waiver.” The Court seemed to emphasize only two important aspects necessary to find that the defendant waived his Miranda rights: it must have been knowingly and voluntarily. Put another way, a waiver will not be hard to find as long as the Defendant was fully informed of his Miranda rights and was not coerced into a waiver.

The Court reasoned that while the language in the decision of Miranda indicated that “[i]f an individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease;” decisions since then indicated that a waiver must be “unambiguously” announced. Under the Federal Constitution, therefore, an ambiguous or equivocal act will not invoke the right—nor, most critically and perhaps a little contradictory, the act of simply remaining silent. Further, as the Supreme Court’s current jurisprudence stands, the analysis of what act constitutes a waiver is not affected whether the defendant’s statements were made pre-waiver or post-waiver. That distinction is critical because a defendant may still invoke his right to remain silent even after waiving his Miranda rights—and it is a distinction that the Supreme Judicial Court of Massachusetts has emphasized in Clarke.

Commonwealth v. Clarke: In Clarke, the Defendant, during a custodial interrogation, after being explained his Miranda rights and before any waiver, indicated that he did not wish to speak by shaking his head from side to side. However, the interrogating officer kept attempting to clarify the defendant’s invocation of his rights by asking follow up questions until the defendant eventually signed a Miranda waiver form and made incriminating statements. The SJC held that the defendant’s conduct—an explicit headshake in response to a direct question—“was sufficiently communicative as to invoke his right to remain silent.” Therefore, because the officer’s did not “scrupulously honor” that right, all subsequent statements were subject to suppression.

In announcing this rule, the SJC emphasized that what is sufficient to invoke the right to remain silent rests on the critical aspect of whether the invocation was made pre-waiver or post-waiver. In the post-waiver context, it noted that “it makes sense to expect a heightened level of clarity from a suspect who wants to change course and cease interrogation after having already indicated a desire to continue questioning. Pre-waiver, however, the suspect has yet to exercise the choice between speech and silence that underlies Miranda. To require a suspect, before a waiver, to invoke his or her right to remain silent with the utmost clarity, as called for by Thompkins, would ignore this long-standing precedent and provide insufficient protection for residents of the Commonwealth under art. 12.” In addressing potential criticism, the SJC noted that it is not burdensome for law enforcement to stop questioning if the defendant makes an ambiguous invocation and simply ask the defendant to clarify his intent. It went on to warn that clarification should not be mistaken as a green light for badgering or overreaching, whether intentional or unintentional.

Implications: What does this mean for defendants in Massachusetts? Based on the SJC’s holding, it seems that it is much easier for a defendant to invoke his right to remain silent at the outset of a custodial interrogation. In fact, an invocation may be done by an act, rather than speech, or by simply remaining silent. If the defendant chooses to answer questions by the interrogating officer after waiving his Miranda rights, but later changes course and decides to remain silent, the court will require a higher showing of clarity of that post-waiver invocation. It is unclear whether a headshake or another ambiguous act, will suffice to meet that heightened post-invocation standard, but such an argument could be bolstered if the defendant was subjected to overreaching or badgering by the interrogating officers.

–Wassem Amin

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