Understanding The Miranda Rule – Your Right To Silence and To A Lawyer
By Colorado Criminal Defense Lawyer – H. Michael Steinberg
Understanding The Miranda Rule – Your Right To Silence and To A Lawyer – The Miranda decision has definitely become part of our daily language. This article helps provide various perspectives of the Miranda decsion and what it really means to law enforcement and to criminal defense lawyers.
What Were The Reasons For The Miranda Rule?
In 1966 the United States Supreme Court announced its decision in Miranda v. Arizona. The Supreme Court explained that the new Miranda procedure was necessary to combat “third degree” interrogation which “brutalizes the police, hardens the prisoner against society, and lowers the esteem in which the administration of justice is held by the public.”
Miranda also was determined to be needed to reduce more subtle forms of coercion that officers may use to interrogate a suspect who is in custody.
As the Court has pointed out, the interrogation process, “by its very nature, isolates and pressures the individuals and “trades on the weakness of individuals.” For these reasons, there exists “a substantial risk that the police will inadvertently traverse the fine line between legitimate efforts to elicit admissions and constitutionally impermissible compulsion.”
To help reduce these coercive pressures, the Court decided it was necessary to establish safeguards that would reduce the level of coercion by giving suspects “the power to exert some control over the interrogation.” These safeguards took the form of the now-familiar Miranda waiver and invocation procedures.
Miranda provides officers and courts with “concrete constitutional guidelines” for determining the propriety of police interrogation. As a result, the courts now rarely suppress statements on grounds they were involuntary if the officers had fully complied with the Miranda procedure.
Changes To interpretations Of The Miranda Rule Over The Last 40 Years
What follows are modifications to the application of the Miranda Rule over the years (invocation is to assert the Miranda Rights):
No ambiguous “invocations”: The U.S. Supreme Court abolished the rule that a suspect’s equivocal or ambiguous remark can constitute an invocation.
Limited invocations: The courts now recognize limited invocations. This means a suspect’s request to limit the scope of the interview or the manner in which it is conducted no longer results in a full-blown invocation.
Implied waivers: The courts understand that express waivers are not always required; that a waiver may be implied under certain circumstances.
Minors and impaired suspects: There are now realistic standards for obtaining waivers from minors and suspects who are high on drugs, intoxicated, or otherwise impaired. is that statements which may be by no means involuntary, made by a defendant who is aware of his ‘rights,’ may nonetheless be excluded and a guilty defendant go free as a result.”
No anticipatory invocations: It is now settled that suspects can invoke only during actual or impending interrogation; e.g., an “invocation letter” from an attorney will not do.
“Slightest pressure” standard is abolished: The rule that the “slightest pressure” renders a waiver involuntary has been abrogated. The courts now consider the totality of the circumstances.
Post-invocation questioning: There are now fairly clear rules on when, or under what circumstances, officers may question a suspect who has invoked his right to remain silent or the right to counsel.
The Miranda “Waiver “
It is standard police procedure that officers may not interrogate a suspect who is in custody unless he has waived his Miranda rights.
A waiver is valid if it was:
(1) knowing, (2) intelligent, (3) voluntary, (4) express or implied, (5) timely, and (6) not the product of impermissible pre-waiver tactics.
A “Knowing” waiver
A waiver is “knowing” if the suspect was aware of his Miranda rights. Consequently, the first thing officers must do is spell them out, a procedure known as “Mirandizing.”
Actually, Mirandizing serves two purposes. It not only gives suspects notice of the rights they will be asked to waive, it helps reduce any coerciveness or intimidation they might feel by making them aware that they can start and stop the proceedings and thereby “exert some control over the interrogation.”
It is true, of course, that most people know their Miranda rights by heart, having heard them recited countless times on TV and in the movies. It is also true that many or most arrestees have been on the receiving end of multiple Miranda warnings in the past and are therefore intimately familiar with their rights.
Still, it is essential that officers Mirandize every suspect from whom a waiver is required, including “con-wise arrestees.” This is because prosecutors cannot prove a waiver was “knowing” by merely demonstrating that the suspect “probably” knew his rights. As the Miranda Court put it,
“No amount of circumstantial evidence that a person may have been aware of his rights will suffice.”
The Miranda Warning:
There are three components to a Miranda warning:
(1) Right to remain silent: The suspect must be informed of his Fifth Amendment right to refuse to answer questions. This is typically accomplished by telling him, “You have the right to remain silent.”
(2) “Anything you say . . . ” The suspect must be told that his decision to speak with officers may have consequences; e.g., “Anything you say may be used against you in court.”
(3) Right to counsel: The Miranda right to counsel is composed of three elements:
(a) the right to consult with an attorney before questioning,
(b) the right to have an attorney present during questioning,
(c) the right to have an attorney appointed if the suspect cannot afford one.
The standard Miranda-card language that is used to convey this information is, “You have the right to talk to a lawyer and to have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish one.”
The Language May Vary:
There is no requirement that officers use certain language or recite the warnings in a particular way. As the United States Supreme Court explained,
“We have never insisted that Miranda warnings be given in the exact form described in that decision.” Instead, what is required is that officers “reasonably convey” the Miranda rights.
“Can and Will Be Used”: In the past, officers were instructed to warn suspects that anything they say can “and will” be used against them. There is, however, no requirement that officers deliver such an ominous and disconcerting warning. In fact, the Court of Appeal has noted it is a patently false statement because, as every judge knows, not all statements or remarks a suspect says can or will be used against him.
So where did the foreboding “and will” come from? It was simply an overreaction. As the court noted in People v. Valdivia, “In the latter part of the Miranda opinion the Court employed the overstatement ‘can and will be used.’ But at an earlier point the Court described the warning as being that what is said ‘may be used,’ and this alternative has been consistently approved by the lower courts.”
It is, therefore, sufficient to warn suspects that anything they say “may,” “can,” or”could” be used against them in court.
No Additional Information: Officers are not required to furnish suspects with any additional information, even if it might have affected their decision to waive. As the Court noted in Moran v. Burbine, “[W]e have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self interest in deciding whether to speak or stand by his rights.”
For example, the courts have rejected arguments that officers must disclose the subjects that would be discussed during the interview, the criminal charges the suspect might be facing, the possible punishment upon conviction,29 that the suspect’s attorney is present and wants to talk to him,30 or that the suspect “has a continuing right to cut off questioning at any time.
You Can Invoke Anytime: Although not a requirement, officers sometimes supplement the Miranda warning by informing suspects that they can invoke their rights at any time during the interview; i.e., their decision to waive is not irrevocable. This is an accurate statement of the law and is not objectionable.
Minors: Minors have the same Miranda rights as adults and, therefore, need not be given any additional information. In the past, there was some confusion over whether officers must notify a minor that he has a right to speak with a parent before questioning or that he may have a parent present during questioning. The answer to both is no. But in Colorado, if a minor is in custody and is to be questioned, a parent has to agree to waive the Miranda Rights along with the child.
Using a Miranda Card: While the language of the warnings may vary, it is usually best to read the warnings from a Miranda card, especially if the warning-waiver dialogue is not recorded. If officers do this, they can usually prove the warning was accurate by testifying they recited the warnings from a card, then reading to the court the warning that appears on the same card or a duplicate.
Incorrect Miranda Warnings: A Miranda waiver may be deemed invalid if officers intentionally or inadvertently misrepresented to the suspect the nature of the Miranda rights or the consequences of waiving them.
Recording Waivers: The Miranda procedure and the subsequent interview may be overtly or covertly recorded.
“Intelligent” waivers:” As noted, waivers must be “intelligent,” as well as “knowing.” Fortunately, this does not mean the decision to waive must have been a smart move. It only means the suspect must have understood his rights.
To prove that a suspect understood his rights, the police will usually use the direct approach and ask: “Did you understand each of the rights I explained to you?” If he says yes, that is usually enough. If he says no, officers must find out what he did not understand and work with him until he gets it.
Suspect Intoxicated, Handicapped:
Even though a suspect said he understood his rights, he may later claim he didn’t because his mental state was impaired by alcohol or drugs, physical injuries, a learning disability, or a mental disorder.
English is a second language may also contend they did not understand if the officers spoke in English.
As a practical matter, however, the courts almost always reject “I didn’t understand” arguments if the suspect’s answers to the officers’ questions were responsive and coherent. This is because a suspect’s rational responses demonstrate that he understood the officers’ questions which, in turn, indicates he also understood the Miranda warning.
Although less important than the suspect’s fitting responses, the courts sometimes take note of his age, experience, education, background, and intelligence; whether he had been arrested or advised of his Miranda rights before, and whether he hadpreviously invoked.
Minors: Proving They Understood: Minors are, of course, capable of understanding the Miranda warnings. Many minors are far more sophisticated and knowledgeable in these areas than their parents.”Accordingly, in determining whether a minor understood his rights, the courts examine the same circumstances they consider when the suspect was an adult, discussed above.
Voluntary Waivers: A suspect’s decision to waive his Miranda rights must also have been “voluntary,” meaning it must not have been motivated by police coercion such as physical violence, threats, or promises. In the words of the United States Supreme Court, “[T]he relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.”
For example, waivers have been deemed involuntary based, at least in part, on the following:
.. Officers told the suspect that, unless he waived his rights they “had to assume the worst, e.g., the death penalty.”
.. Officers told the suspect that she would lose state financial aid for her child if she did not answer their questions.
The United States Supreme Court has said that an otherwise voluntary waiver will not be invalidated merely because officers utilized ploys “to mislead” or to “lull him into a false sense of security.”
Timely waivers: Miranda waivers must be timely or, as the courts phrase it, “reasonably contemporaneous” with the start of the interview. The purpose of this requirement is to make sure the suspect had not forgotten the rights that were read to him earlier. In most cases, this is not a problem because waivers are usually obtained just before the start of an interview.
Sometimes, however, there is a delay which could conceivably cause the suspect to forget. This might occur, for example, if officers obtained a waiver when they arrested the suspect but, for some reason, did not interview him until he had been transported to the police station. It could also happen if an interview was resumed after a lengthy recess. In determining whether a waiver and interview were reasonably contemporaneous, the courts consider the totality of circumstances, especially the following.
Time Lapse: The time lapse between the waiver and the start or resumption of the interview is probably the most important circumstance. Still, where there is no direct or circumstantial evidence that the suspect forgot his rights, the courts have upheld waivers that were made several hours after the warning.
Suspect’s Age, Experience: Whether a time lapse actually caused the suspect to forget his rights could depend to some extent on his age, mental state, sophistication, background, and experience with the criminal justice system. Consequently, these circumstances may be considered.
Changed Circumstances: The courts often note whether the circumstances surrounding the waiver were similar to those at the start or resumption of the interview. The theory here is that the more similarities between the two events, the more likely the suspect would have known the rights explained to him earlier still applied. For example, the courts might look to see if there was a change in the location in which questioning occurred, and whether the officers who were present when the waiver was obtained were the same as the officers who were present when the interview began or resumed.
Reminders: Did the officers remind the suspect of his Miranda rights when the interview began or resumed; e.g., “Do you remember the rights I read to you earlier?”
Express and Implied Waivers: A Miranda waiver may be express or implied by the suspect’s words or conduct. Most waivers are, however, based on a combination of the two.
Express Waivers: An express waiver occurs when the suspect says he is willing to waive his rights, or when he signs a waiver form. Express waivers are “usually strong proof” of a valid waiver, and are almost always sufficient proof that the suspect did, in fact, waive his rights.
Most express waivers occur after officers ask the standard Miranda-card question. “Having these rights in mind, do you want to talk to us?” An affirmative response constitutes an express waiver even if the suspect did not appear to be enthusiastic about it.
Implied Waivers: Although this issue caused some confusion in the past, it seems to be settled that a waiver of both the right to remain silent and the right to counsel may also be implied. What constitutes an implied waiver? While the courts have not agreed upon a formal checklist, there seem to be four requirements:
(1) Correctly advised: The suspect must have been correctly advised of his Miranda rights.
(2) Understood: The suspect must have expressly said he understood his rights.
(3) No coercion: The officers must not have pressured or otherwise coerced the suspect into waiving his rights.
(4) Answered freely: The suspect must have answered the officers’ questions freely,as opposed to, for example, “grudging responses to leading questions.”
Combination of Express and Implied: For whatever reason, in the years after Miranda was decided it became routine practice for officers to seek an express waiver of the right to remain silent and an implied waiver of the right to counsel. This is what often happens: After obtaining the suspect’s acknowledgment that he understood his rights, officers ask, “Having these rights in mind, do you wish to talk to us now?” An affirmative response constitutes an express waiver of the right to remain silent because the suspect has explicitly said he is willing to talk with them. The officers will then begin questioning the suspect. If he responds freely, he will be deemed to have impliedly waived the right to counsel.
Pre-waiver conversations: Before seeking a waiver, officers will almost always have some conversation with the suspect. In many cases the purpose is to help reduce the tension in the room or otherwise try to calm the suspect down. Or the officers may simply want to put their cards on the table. In any event, most pre-waiver conversations are lawful if the officers’ questions or remarks were fairly brief and did not constitute “interrogation.”
Pre-waiver “Small Talk”: Officers do not violate Miranda by having a brief and casual pre-waiver conversation with a suspect to settle the atmosphere.
Putting Your Cards on the Table: Before seeking a waiver, officers will sometimes explain to the suspect the nature of the crime he is believed to have committed, and even summarize the evidence of his guilt. They may also point out to him that he has only one chance to tell them his side of the story—and this is it. These are all permissible practices so long as the officers statements were brief and dispassionate; i.e., not goading.
Trivializing the Miranda Warnings: A court might invalidate a waiver if officers obtained it after belittling the Miranda rights.
“Softening Up”: Defendants sometimes argue that, although they were not actually coerced or otherwise pressured into waiving, their waiver was nevertheless involuntary because officers “softened them up” before seeking it. In one California case that following circumstances existed: (1) officers had reason to believe the suspect would not waive his rights; (2) before seeking a waiver, they had a lengthy talk with him; (3) the purpose of the talk was to convince him it would be advantageous to waive (they made it appear as if they were on the suspect’s “side”), and (4) the suspect waived his rights as the result of the officers’ ploy.
Undermining Miranda and the “Two Step”: In 2004, a majority of the U.S. Supreme Court in Missouri v. Seibert ruled that an interrogation strategy known as the “two-step” was unlawful because it was designed to—and did—undermine the Miranda procedure and effectively circumvent its protections. The so-called “two step” is a tactic in which officers intentionally question an incarcerated suspect without first obtaining a Miranda waiver. If the suspect confesses or makes a damaging admission, they then Mirandize him and seek a second statement.
The psychology behind the two-step is that a suspect who has “let the cat out of the bag” by admitting his guilt, will figure he might as well waive his rights because he has nothing left to loose. As the Court explained, the two-step operates to “render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.”
While a waiver gives officers the go-ahead to begin questioning the suspect, an invocation has just the opposite affect. Specifically, if the suspect invokes while being Mirandized, officers may not question him. Furthermore, officers must not insist that he listen to the rest of the warnings and answer the waiver questions before they willrecognize the invocation.
If the invocation comes during the interview, all questioning must immediately cease. And regardless of when it occurs, officers must not attempt to make him change his mind or even ask why he’s invoking.
These rules, which are precise and unequivocal, have been in effect since Miranda was decided in 1966 and they are still strictly enforced.
Other rules would fabricate an invocation if the suspect asked to talk to his mother, or if he indicated he would want an attorney if his case went to trial. Some courts even permitted “anticipatory invocations,” meaning an invocation that occurred before officers sought to question the suspect, and sometimes even before they arrested him.
Not surprisingly, these latter rules resulted in vast numbers of “invocations,” many of which were not intended. And they explain, at least partly, why so many officers and prosecutors were becoming openly hostile to Miranda. Changes were needed.
And they came.
A new definition of “invocation”
The most dramatic change came in 1994 when the United States Supreme Court announced its decision in the case of Davis v. United States. Davis was the outgrowth of the Court’s recognition that some lower courts had gone too far—that their obsession with sniffing out “invocations” had transformed Miranda’s safeguards into “wholly irrational obstacles to legitimate police investigative activity.” What was needed, said the Court, was an entirely new test for determining what constitutes an invocation.
The “Unambiguous and Unequivocal” Test: The Court ruled that invocations would no longer result if the suspect said something that indicated he might be invoking.
Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.
Consider in Context: In determining whether a suspect’s words constituted an unambiguous invocation, the courts must consider them in context. This is important because a remark that appears to be an invocation in the abstract might take on an entirely different meaning when considered in light of what the suspect and the officers said beforehand, including the tenor or sense of their words.
Invocation of the right to remain silent
A suspect invokes his right to remain silent if he says something that clearly demonstrates either, (1) a present unwillingness to submit to an interview or, (2) an expressing themselves. However, a rule requiring a clear invocation of rights from someone who has already received and waived them avoids difficulties of proof and promotes effective law enforcement.”
Suspect Requests to Talk with Someone: In the past, it was the rule that a request to speak with someone – probation officer, employer, friend, parent, or psychologist was an invocation of Miranda. But as the result of Davis these arguments are now summarily rejected.
Mere Reluctance to Talk: A suspect’s reluctance to talk with officers or discuss a certain subject does not constitute an invocation if it appeared he was just uncomfortablediscussing the matter or providing details.
In Miranda’s “Dark Ages,” it seemed as if invocations of the right to counsel would occur whenever a suspect uttered the word “attorney,” regardless of the context. AfterDavis, however, an invocation results only if the suspect makes “some statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.”
Today a suspect does not necessarily invoke his rights simply by saying the magic word ‘attorney’; that word has no talismanic qualities, and a defendant does not invoke his right to counsel any time the word falls from his lips. On the other hand, an invocation would ordinarily result if the suspect said something like, “I wanna lawyer,” or “I think now that you told me what you think, I better talk to a lawyer.”
Most of the confusion in this area occurs when a suspect indicates he wants to be represented by an attorney when he gets to court. This is sometimes interpreted by officers as an invocation of the Miranda right to counsel but, as we will now explain, it’s not.
Two Rights to Counsel: Most Suspects naturally want to be represented by an attorney if and when they get to court. And they have a Constitutional right to one pursuant to the Sixth Amendment. Specifically, a suspect who has been charged with a crime has a right to have an attorney when he appears before a judge in court and is therefore “facing a state apparatus that has been geared up to prosecute him.” Thus, when a charged suspect invokes his Sixth Amendment right to counsel by, for example, retaining an attorney or asking a judge to appoint one, he is essentially saying that he does not have the knowledge or experience necessary to deal with the legal issues that might arise in the courtroom.
In contrast, the Miranda right to counsel is concerned with what happens in the police interview room or any other location in which custodial interrogation takes place. Consequently, when a suspect tells officers he wants to have an attorney present when he is questioned or that he wants to speak with one before questioning begins, he isessentially saying that “he considers himself unable to deal with the pressures of custodial interrogation without legal assistance.”
Most suspects do not, however, appreciate the distinction between these two rights. As the result, they seldom say why they want an attorney.
Suspect Wants an Attorney in Court: With these differences in mind it becomes clear—especially in light of Davis—that officers are not required to terminate an interview when a suspect says or indicates he wants an attorney in court. One court observed, “A desire to have an attorney in the future, coupled with an unambiguous willingness to talk in the meantime, is not an invocation of the [Miranda] right to counsel requiring cessation of the interview.”
The following were deemed NOT invocations:
Suspect: . . . attorneys and stuff like that I can’t afford one right at the moment.
Officer: Well, this says that an attorney can be appointed for you.
Suspect: Well, I feel I need one
Officer: O.K. you’d rather not talk about the case.
Suspect: No, I don’t mind talking about the case, but I just feel I want it noted that I want an attorney.
Officer: [So] you do want an attorney but not necessarily at this particular second. Is that right?
Suspect: I’d like to know how long it will take to get an attorney. I would like to talk to you in the interim period but I would like to try to get one—you know, get the process started.
Officer: Do you want an attorney right now?
Suspect: No, I’m willing to start but I’m sure during the process I’m going to want one.
Suspect Retains an Attorney on Another Case: Just as a suspect’s request for counsel in court has no bearing on whether he thinks he needs an attorney in dealing with officers, neither is his act of requesting or accepting legal representation in another case.
Similarly, in McNeil v. Wisconsin an attorney was appointed to represent McNeil on an armed robbery charge. A homicide detective later visited him in jail, obtained aMiranda waiver and interviewed him about an unrelated murder for which McNeil was an uncharged suspect. McNeil was later charged with the murder, and his statements to the detective were used against him at trial. On appeal, the United States Supreme Court ruled that, although McNeil invoked his Sixth Amendment right to counsel as to the robbery when he accepted court-appointed counsel, he did not thereby invoke his Miranda right to counsel as to the murder.
Suspect Has an Attorney in the Case under Investigation: As a practical matter, officers are seldom able to question suspects about crimes for which they have retained or requested counsel. This is because most attorneys will tell them to invoke or otherwise keep their mouths shut. If, however, the suspect is willing to speak with officers without the attorney, and if he has not been charged with the crime under investigation, police-initiated questioning is, as noted earlier, permitted under both the Sixth Amendment.
It is also permitted under Miranda for two reasons. First, retaining an attorney does not constitute an unambiguous request to have an attorney present during questioning.
And second, only the suspect can invoke his Miranda rights, and the invocation must occur during actual or impending interrogation, not, for example, when the suspect is talking privately with his lawyer.
Suspect Requests an Attorney If He Will Be Charged: An invocation does not result if an uncharged suspect says he wants an attorney if he will be charged sometime in the future. Such a statement, said one court is “at best, ambiguous and equivocal” because officers do not know for sure if the suspect will, in fact, be charged. “Confronted with this statement,” said the court, “a reasonable officer would have understood only that the suspect might be invoking the right to counsel which is insufficient under Davis to require cessation of questioning.”
Suspect Wants an Attorney at Lineup: Neither a suspect’s request for an attorney at a lineup, nor his refusal to participate in a lineup without an attorney, constitutes a Miranda invocation. As the Courts have observed “The Sixth Amendment guarantees the right to counsel at a physical lineup, but the mere presence, or absence, of an attorney at a lineup does not affect the suspect’s right to counsel during custodial interrogation.”
Accordingly, if officers are willing to honor the restrictions imposed by the suspect, they may continue the interview. This is because they will have shown him that he does, in fact, have the ability to control the manner in which the interview is conducted which, as discussed, satisfies Miranda because it reduces the coerciveness of the interview.
The following are some common limited invocations.
Request to Speak “Off the Record”: If a suspect states that something he is about to say is “off the record,” his statement is treated as a limited invocation of the right to remain silent covering only the part of the subsequent interview that is reasonably understood to be off-the-record.
A murder suspect, after invoking his Miranda right to counsel, agreed to speak with the officer “off the record.” He then confessed. A court ruled, however, the confession was obtained in violation of Miranda because, among other things, there was no indication that the “off the record” conversation was limited to a certain subject.
Request to Turn off Recorder: Suspects sometimes request or insist that officers not record all or part of their interview. This might occur at the start of the interview or while it is underway, usually just before they say something incriminating. In any event, the question arises: Does such a request constitute a limited invocation so that officers must either comply or terminate the interview?
The answer is no. Although a “no recording” request is somewhat similar to an “off the record” request, it is not treated as a limited invocation, because the suspect, having waived his rights, knows that anything he says may be used against him. Consequently, officers are not required to honor the request unless the suspect made it clear that his “no recording” request was tantamount to an “off the record” request. As the California Supreme Court observed:
It is well-established that a suspect does not invoke his or her right to remain silent merely by refusing to allow the tape recording of an interview, unless that refusal is accompanied by other circumstances disclosing a clear intent to speak privately and in confidence to others.
Refusal to Discuss a Certain Subject: A suspect’s refusal to discuss a certain subject or answer a certain question constitutes an invocation of the right to remain silent only as to that subject or question. Similarly, a refusal to discuss a certain subject without counsel is an invocation of the Miranda right to counsel only as to discussions about that subject.
Other Limited Invocations:
The following are, at most, limited invocations.
Refusal to Demonstrate: A suspect’s mere refusal to demonstrate something does not constitute an invocation because he is essentially saying, “I’ll tell you, but I won’t show you.”
Refusal to Discuss a Particular Subject Without an Attorney: A refusal to discuss a certain subject without counsel constitutes an invocation of the Miranda right to counsel only as to discussions pertaining to that subject.
Refusal to Speak with a Certain Officer: Such a request—frequently the result of the “good cop-bad cop” routine—does not constitute an invocation if it appears the suspect was willing to speak with the other officer.
Refusal to Speak Now: A suspect’s statement that he would like to speak with officers later – but not now—is an invocation of the right to remain silent at the present time. Thus, officers may seek to question him after waiting a while.
Refusal to Sign Waiver Form: Not an invocation.
Refusal to Give Written Statement: Not an invocation.
Refusal to Take Polygraph Test: Not an invocation.
Clarifying Ambiguous Invocations: Although an ambiguous invocation does not constitute an invocation, it is sometimes wise to attempt to clarify whether the suspect did, in fact, intend to invoke. This is because a statement that appears ambiguous to officers may be viewed as an unambiguous invocation to a judge.
As the U.S. Supreme Court pointed out in discussing invocations of the right to counsel, “Of course, when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney.[This] will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect’s statement regarding counsel.”
No Invocations by Proxy: Invocations cannot be made by proxy. In other words, the person who invoked must have been the suspect, not, for example, his father or attorney.
No Anticipatory Invocations: A Miranda invocation is effective only if it occurred during actual or impending custodial interrogation. Thus, an invocation cannot be made at some point before officers sought to question the suspect. As the United States Supreme Court observed in McNeil v. Wisconsin, “We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than custodialinterrogation.” Or, as the court explained in People v. Avila, “Simply stated, the Miranda rights cannot be invoked except during the custodial interrogation against which they are being asserted.”
Ignoring the plain language of McNeil, court-appointed attorneys in Orange County began having their clients sign “INVOCATION NOTICES,” then filing these “invocations” with the court; e.g., “The above-named defendant hereby invokes his Miranda rights.” In fact, court clerks even went out and bought rubber stamps that said, Defendant invokes theright to counsel and the right to remain silent.