Miller: Hi. This is Tim Miller. I’m back with Jenna Solari. We’re taking you through a series of PodCasts addressing Fourth, Fifth and Sixth Amendment issues that can arise when, when law enforcement officers want to question suspects in a criminal case. In our last PodCast, we discussed the Fifth Amendment privilege against self-incrimination and that Supreme Court case Miranda v. Arizona. We know that when we have cops + custody + interrogation, police have to provide suspects with those Miranda warnings to put them on notice of their right against self-incrimination. But as Jenna told us, just providing the warnings isn’t enough. The police have to get a valid waiver before they can move on to questioning. So, Jenna, how do police go about getting that waiver?
Solari: Well Tim it’s important to understand that any waiver of Miranda rights has to be voluntary, intelligent, and knowing. We use the pneumonic “Vick” – V.I.K. There are two parts to that; first, the waiver has to be voluntary, meaning the suspect made a free and deliberate choice to give up his rights. It’s not voluntary if the suspect waives the rights because of intimidation, coercion, or because the police tricked him into doing it. Second, the government has to show the suspect was made fully aware of the nature of the rights being given up and the consequences of giving up those rights. That’s the intelligent and knowing part.
Miller: Now you said the police cannot trick the suspect into waiving his Miranda rights. I thought investigators could lie to suspects during interrogations.
Solari: Well that’s true. Once the interrogation has started, then it’s okay to use certain types of deception to get information from the suspect. We’re still talking about the rights waiver though, so lying to the suspect at that point is not a legal option. It’s not okay for instance, for the investigator to say, “hey you know I just talked to your lawyer a minute ago, and you know, he said it’s probably best for you to just waive your rights and go ahead without him here.” Any evidence of that kind of behavior, tricks, threats, or promises used to get the suspect to waive, will cause the court to find that the suspect didn’t voluntarily give up those Miranda rights.
Miller: Now is that it? As long as the police don’t trick the suspect into waiving his rights, and as long as there are no threats or promises, the waiver’s valid?
Solari: Well it’s a little bit more complicated than that. The court will look at the totality of the facts and circumstances surrounding an interrogation to ensure two things. First, the suspect’s decision to waive his right to remain silent must be free and voluntary, and not the result of police coercion. Second, the suspect has to have the requisite level of comprehension to waive his rights; specifically, that he knew he could remain silent; that he could request a lawyer to be present during the interrogation; and finally, that he was aware of the government’s intent to use any of his statements against him at trial.
Miller: Okay, let’s break this down a little bit. First, you said that the waiver must be voluntary. Now, what does that mean – voluntary?
Solari: Well, it means the suspect has to actually feel like he has the option of invoking his rights if he wants to, and that he won’t be punished for doing that. The police have to give that suspect a bone fide choice and let him make up his own mind.
Miller: Got any examples of government action that would make a rights waiver involuntary?
Solari: Well, sure. We’ve already talked about one – lying to a suspect about his constitutional rights; telling a suspect, for instance, that if he waives his rights, his statements won’t be used against him, that’s just not true. In one case, the officer told the suspect that a lawyer would be provided at no cost if the suspect couldn’t afford one, which is true. That’s fine. The detective added then, though, that the judge would probably make the suspect pay back the cost of the attorney if he was ultimately convicted at trial. Now, that’s not true and it’s something that could easily make a person feel like he can’t really ask for an attorney. Other examples of government coercion would be threatening the suspect, or promising the suspect something like he won’t go to jail if he just waives his rights and gives a statement.
Miller: You know I don’t know how many police shows I’ve watched on television where police, you know, they threaten, they hit, or punish, push the suspect around in order to force him to talk about a crime he’s suspected of committing.
Solari: Yeah, you know, I hate that. Hollywood may not understand the Fifth Amendment and Miranda, but the Supreme Court definitely does. The Supreme Court suppressed a suspect’s statement in one case where the police officer threatened, “you better cooperate with me in this investigation, or I’ll see that the Department of Family Services takes your children away.” The courts don’t tolerate those kinds of intimidation tactics, like stripping a defendant of his clothes and keeping him naked for several hours before reading him his rights. Other types of maltreatment, like withholding food, water, or bathroom breaks to gain a suspect’s cooperation aren’t lawful, either. The suspect can only give a valid rights waiver if it is truly his own voluntary decision to do so.
Miller: So, if the defendant believes his rights waiver was the product of unlawful police pressure, the defendant has to make a motion before the court to suppress this resulting statement. Is that correct?
Solari: That’s right. The defendant raises that motion. The court determines whether there was, in fact, any police coercion and if so, whether that coercion overcame the defendant’ free will. If the court finds there wasn’t any police coercion, the inquiry just ends there. If the court finds there was police coercion, the statements are going to be suppressed if the judge finds that the pressure applied by those law enforcement officers was sufficient to make the suspect feel like he didn’t really have any choice but to give up his rights.
Miller: And what factors, what factors are the courts looking for?
Solari: Well it’s just one of those totality of the circumstances tests. The courts will consider things like the suspect’s age, level of education, mental condition, and whether the suspect was under the influence of drugs or alcohol.
Miller: Okay, so the waiver has to be VIK. It’s got to be voluntary, meaning the product of the suspect’s free will, and not the result of police coercion. Now, what’s the second inquiry?
Solari: Well alright, so we’ve covered voluntary part. The second inquiry is whether the waiver was intelligent and knowing. Now, that doesn’t mean that the suspect has to be really smart or know a whole lot about the law. He simply has to understand what his Miranda rights are and what it means to give them up. That’s not a terribly high standard. The 7th Circuit found that a man with an IQ of 56 in one case could intelligently and knowingly waive his rights.
Miller: And what factors do the courts look at here?
Solari: Again, just that the totality of the facts and circumstances, and that will still include things like the suspect’s education and intelligence, age, how familiar the person is with our criminal justice system, the suspect’s physical and mental condition, drug and alcohol use, and language barriers. Now obviously, if the suspect doesn’t speak English, he should be advised of his rights in a language he does understand. Since Spanish, for instance, is so widely spoken in the U.S., most Miranda cards nowadays have a Spanish translation on the back.
Miller: And, who has the burden of showing that the waiver was voluntary, intelligent and knowing?
Solari: Well as we stated before, the defense has to raise the motion to suppress the statement; but, once that motion is raised, the burden of showing a valid waiver is always on the government.
Miller: Well it certainly seems like a good idea for officers and agents to document the circumstances surrounding any type of custodial interrogation.
Solari: Absolutely. Sure. Some agencies have what they call “interview logs” that the agents use to document things like the time the suspect arrived, the time he was advised of his rights, and the time he waived, if in fact he did. That’s not the only important information, though, as it pertains to that interview or interrogation. Things like the condition of the suspect, the last time he slept or had something to eat or drink, his ability to speak, read, and understand English, and whether he’s under the influence of drugs or alcohol can all make a big difference when it comes time for that suppression hearing. Agents should note as much of that information as they can.
Miller: Does the Miranda waiver itself have to be in writing?
Solari: No, it doesn’t. It’s certainly a great idea to get it in writing if you can; your prosecutor will love that; but it’s not a legal requirement. Oral waivers are sufficient, as long as they’re V.I.K., voluntary, intelligent, and knowing.
Miller: Well, is it enough that the suspect is informed of his rights, and then just starts to confess?
Solari: No, the court won’t presume the suspect waived his rights just because he went ahead and started answering questions. The police have to get some kind of definitive answer from the suspect regarding whether he understands his rights and is willing to waive them before police can continue that interview.
Miller: Miranda requires the accused to be informed of his rights to remain silent and that he has the right to the presence of an attorney, prior to any custodial interrogation, that’s right?
Solari: Right.
Miller: Well those are two different rights. What if the suspect says he doesn’t want to talk?
Solari: Well now that’s an invocation of the right to remain silent. So when a suspect says, “I don’t want to talk to you,” the officer should interpret that as “I don’t want to talk to you right now.” Now, that’s because the Supreme Court tells us that after a reasonable time, we know that to be at least two hours, the police -- either the same officer or a different one -- can come back to the suspect and try to talk to him again. Although there is no strict requirement that the officer re-advise the suspect of his rights at that time, it’s definitely a good idea to do it anyway and then ask again if the suspect wishes to waive those rights. If the suspect makes a voluntary, intelligent and knowing waiver, the police can interrogate him at that time.
Miller: Okay, what if the suspect says he wants a lawyer?
Solari: Well that’s obviously an invocation of the right to counsel. When a suspect in custody asks for a lawyer, the officer should interpret that to mean, “I will not talk to any officer from any jurisdiction about anything until I have a lawyer sitting next to me.” From that point on police can not interrogate the suspect at all without an attorney present. It’s not enough to just let the suspect talk to an attorney on the phone. He has to have an attorney present if he has asked for one. That rule remains in effect the entire time the suspect is in custody.
Miller: Now what if the suspect reinitiates questioning, you know by himself, about the investigation?
Solari: Well that essentially invites police back to talk. If the suspect reinitiates questioning about the investigation police at that time can interrogate the suspect. Of course to make a good record of what happened, the police should re-advise the suspect of his rights and make sure they get that affirmative waiver.
Miller: Okay, now you said if the suspect reinitiates questioning about the investigation.
Solari: Right. Police have to be careful that the suspect is reinitiating like you said, a conversation about the investigation. So questions like, “what’s going to happen to me?” “what should I tell the judge?” or “why didn’t my cousin get arrested?” Those are questions about the case, about the investigation. Administrative type questions or unrelated questions like “hey when can I make my phone call?” “can I get a blanket” “when’s my attorney going to get here?” those aren’t enough to open the door back up for questioning.
Miller: So if the suspect just stays quiet, or says he doesn’t want to talk, the police should go away for at least two hours. After two hours, they can then come back, re-advise him of his rights and try again, is that correct?
Solari: That’s right.
Miller: And if the suspect says he wants a lawyer, the police just have to stop all questioning until the suspect’s attorney is present, right?
Solari: Absolutely. Of course in either situation, as you said, the police can resume their attempt to interrogate the suspect if the suspect reinitiates a conversation about the case. It’s always a good idea though to re-advise the suspect of his rights at that point to make sure you have a voluntary, intelligent, and knowing waiver.
Miller: Okay what about this situation? The suspect signs the Miranda waiver indicating that he understands his rights and wants to waive them. He tells police that he won’t give any written statements about his attorney, without his attorney present, but he says he’s willing to talk, you know, talk to them about the suspected crime. He then gives police a verbal confession. What then? Is the verbal statement admissible?
Solari: Yes. The verbal statement is admissible. The suspect waived his rights with regard to that oral statement, but he basically invoked his right to silence with regard to putting anything in writing. So the oral statement comes in.
Miller: Okay what if you just mess it up? What happens if the judge finds that a Miranda waiver was invalid? Let’s assume it was obtained by deception, or that the suspect didn’t have the capacity to understand what was going on. What happens to any statements the police got as a result of an insufficient waiver?
Solari: If the court finds the Miranda waiver was invalid, then any statements the police got as a result will be suppressed, which means the government can’t use those statements in its case-in-chief.
Miller: Okay now, well then it’s certainly in the best interest of the interviewer to make sure the waiver is voluntary, intelligent, and knowing. The best way to do that seems to be to document the process as thoroughly as possible, maybe by recording it, or taking really detailed notes. Do you agree?
Solari: I absolutely agree. A lot of suspects are willing to waive their rights and talk to police at the beginning of an investigation, but of course once they realize they’re going to trial, they’ll say just about anything to convince the judge that those statements should be thrown out. Offices can’t count on the suspect to just admit he gave a valid Miranda waiver, they’re going to have to prove that themselves.
Miller: Okay, well let’s stop for awhile, take a break. Hopefully these PodCasts will help. This wraps up our discussions of Miranda waivers and invocation of rights. When we come back, we’re going to talk about the Sixth Amendment right to counsel and how that affects a police officer’s ability to take suspects’ statements.