Invoking the Rights

Invoking the Rights

After warnings have been given, the suspect in custody holds the power to stop the questioning, and Miranda states that power in broad terms. If the individual "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease," and if the individual "states that he wants an attorney, the interrogation must cease until an attorney is present."¹ The reasoning behind this cut-off rule is that a statement taken after the privilege has been invoked can only be the product of compulsion, because without the power to end the session the pressure of the custodial setting would overcome the suspect's free choice once the suspect has said no.²

Later cases have narrowed that broad language. The Court has resolved three questions about invocation: counsel and silence are treated differently, since police may not initiate further discussion after a request for counsel but may after an invocation of silence; either kind of invocation can be followed by questioning when the suspect starts a generalized discussion of the investigation; and an invocation must be unambiguous, a standard applied to counsel and silence alike.³ If a suspect's words do not meet that standard, police may ignore them.⁴ This section concerns the third question, and the first two return in the sections on questioning after invocation.

The clarity requirement exists because an invocation sets off a costly consequence. Police must stop at once, and after a request for counsel they may not simply try again on their own initiative.⁵ An officer who must decide in the moment whether a half-formed remark triggered that consequence needs a signal that is recognizable on its face. A clarity rule supplies that signal, spares courts from reconstructing afterward whether a vague remark was meant as a request, and costs the suspect very little, because a plain statement that the suspect wants a lawyer or wants to stop talking is always available.

The suspect makes that statement once. A suspect in custody may refuse all cooperation with the police and need not claim the privilege question by question, answering each one with an objection that the answer might incriminate. A witness who is not the defendant is in a different position, because that witness must take the stand, be sworn, hear the question, and only then assert the privilege. The custodial suspect's single clear statement therefore governs the whole interrogation, which is why the wording of that one statement carries so much weight.

The trap on an exam stem is treating any mention of a lawyer as a request for one, when a remark that leaves open whether the suspect wants counsel does not trigger the cut-off.⁸

The subsections below take the rule in three parts. The first covers invoking counsel, where the clarity standard was announced in Davis v. United States, and it comes first because the standard for silence follows it.⁹ The second covers invoking silence, where the same clarity requirement applies and Berghuis supplies the leading illustration.¹⁰ The third covers the related rule from Wainwright v. Greenfield on post-warning silence as evidence, which asks a different question: whether the prosecution may use what the suspect did after warnings, rather than whether police must stop. Miranda itself provides that the exercise of the privilege may not be penalized, so the prosecution may not use at trial the fact that the defendant stood mute or claimed the privilege when accused.¹¹ That bar has a limit: a suspect who, without custody or warnings, simply stands mute in response to police questions may have the silence admitted as evidence of guilt, because the general rule, as in Salinas v. Texas, is that a person must assert the privilege to benefit from it.¹²

Invoking Counsel

The clarity requirement stated above takes its controlling form for the right to counsel in Davis v. United States. A suspect invokes the Miranda right to counsel only by articulating the desire for a lawyer sufficiently clearly that a reasonable officer in the circumstances would understand the statement as a request for an attorney.¹⁴ Davis, a sailor questioned by Naval Investigative Service agents about the beating death of a fellow sailor, had been advised of his rights, including the right to an attorney, and had waived them.¹⁵ During the interview he remarked, “Maybe I should talk to a lawyer,” and the lower courts found that the remark was not a request for counsel, a finding the Supreme Court left in place, so the agents were not required to stop questioning.¹⁶

The question arises because the bar on going back to a suspect who has asked for a lawyer applies only if the suspect actually invoked the right, so a court must first decide whether an invocation occurred.¹⁷ That decision is an objective inquiry, which avoids difficulties of proof and gives officers something they can apply in the interview room, since a test keyed to what the suspect privately meant could be neither applied on the spot nor verified later by a judge.¹⁸ The clear-statement requirement follows from that choice. The statement must be one that can reasonably be construed as an expression of a desire for the assistance of an attorney, and a reference that a reasonable officer would read only as suggesting the suspect might want counsel does not require police to stop.¹⁹ The suspect need not use special phrasing and need not “speak with the discrimination of an Oxford don,” but the words must be clear enough for a reasonable officer to understand them as a request.²⁰

A comparison of two real statements shows which fact carries the rule. In Edwards v. Arizona the suspect had been warned and had been willing to talk, but when the talk turned to making a deal he said, “I want an attorney before making a deal,” and questioning ceased at that point.²¹ Those words state a present wish for counsel and tie it to the decision whether to deal with the police, so a reasonable officer would hear a request and stop. Davis's words, “Maybe I should talk to a lawyer,” voice only a possibility, and a reasonable officer could take them as a suspect thinking aloud about whether to ask for help.²² Nothing in the surrounding circumstances differed in a way that mattered; the wording alone separated a request that ends the interview from a remark that does not.

What an officer may do with an ambiguous remark has two parts. Police are not obliged to stop, and they may ask clarifying questions about whether the suspect actually wants a lawyer.²³ The Court called clarification good practice, because it helps ensure that a suspect who wants counsel gets counsel and reduces the chance that a confession is later suppressed after a judge second-guesses what the remark meant, but it declined to make clarification mandatory, since that would add a third layer of protection for a suspect who only might want a lawyer.²⁴

The rule carries a cost, and the Court acknowledged it. A suspect who, out of fear, intimidation, or limited language skill, fails to say clearly that a lawyer is wanted may go without one despite wanting one.²⁷ The Court accepted that result because the primary protection for a suspect in custody is the warnings themselves: a suspect who understands them and then chooses to talk has shown a willingness to deal with police unassisted, and the cut-off that follows a request for counsel is an added protection that the suspect must affirmatively invoke.²⁸ The other side of the balance is practical. Officers, not judges, decide in the moment whether they may keep going, and a rule triggered by anything that might be a request would force them into judgment calls with suppression as the penalty for a wrong guess.²⁹

Whom the suspect asks for also matters. A request for an attorney is itself an invocation, because of the pivotal role of counsel in the criminal process, and that reasoning does not extend to a request for a probation officer, a member of the clergy, or a close friend, as the Court held in Fare v. Michael C.³⁰

The common exam error is stopping one step short of this rule. When a stem has a warned suspect say, “Maybe I should talk to a lawyer” and the officer keeps going, the tempting answer is that the officer violated Miranda, yet the officer here need not even ask a clarifying question, so the later statement is not suppressed on that ground.³¹ Once the request is clear, the analysis changes completely: the suspect is then not subject to further questioning until a lawyer has been made available or the suspect personally reinitiates the conversation, a rule the section on questioning after counsel develops.³²

Invoking Silence

The clarity requirement that governs the right to counsel applies with equal force to the right to remain silent. Miranda's own wording says a suspect may indicate “in any manner, at any time prior to or during questioning” a wish to stay silent, and read alone that phrase might suggest that any sign of reluctance, including quiet itself, shuts the interrogation down.³⁴ The later cases read the phrase together with the clarity requirement, so the sign must be an unambiguous one. In Berghuis v. Thompkins the Court held that a suspect's silence in response to the warnings does not invoke the right, and that a suspect who wants questioning to stop has to say so clearly.³⁵

The facts of Thompkins show how much silence the rule tolerates. Thompkins was arrested for a shooting outside a shopping mall, and a detective read him the Miranda warnings at the police station. During a three-hour interrogation he was largely silent, giving only occasional one-word answers such as “yeah,” “no,” or “I don't know” and nodding his head, and he refused to say in writing that he understood his rights.³⁶ Near the end, after persistent questioning about God and religion, he said he prayed to God to forgive him for shooting the boy.³⁷ The Court held that his long silence had not invoked the right to remain silent, because he never said that he wanted to remain silent or that he did not want to talk, and either statement would have been enough to cut off questioning.³⁸

The reasoning starts from the ambiguity of silence. A suspect who says nothing may be thinking, may be confused, may be refusing to speak, or may simply be pausing, and an officer in the interview room cannot reliably sort one kind of quiet from another. If silence counted as an invocation, the officer would have to guess at every pause whether the right had been exercised, and a wrong guess would cost the prosecution the statement that followed. The Court therefore saw no principled reason to apply a different standard to silence than the one applied to counsel, since both rights protect the privilege against compulsory self-incrimination by requiring interrogation to stop once either is invoked.³⁹ A clear-statement test is an objective inquiry that avoids difficulties of proof and guides officers when a suspect's meaning is uncertain.⁴⁰ The burden on the suspect is slight, because the warnings have already said that silence is available, and one plain sentence is enough to end the session.

The Court identified what would have sufficed: had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning.⁴¹ A statement such as “I don't want to talk to you” is therefore a clear assertion, while Thompkins's conduct, quiet punctuated by occasional one-word replies, is the model of what falls short. A twin pair of suspects isolates the fact that moves the answer.

Between those poles lies the suspect who says something equivocal. An ambiguous response is not an invocation, and the police may keep asking questions rather than stopping or even trying to clarify what the suspect meant.⁴⁴ That follows from the standard first developed for counsel and carried over to silence: when the accused makes an ambiguous or equivocal statement, or no statement, police need neither end the interrogation nor ask clarifying questions.⁴⁵ The practical consequence is that, until the suspect says plainly that questioning should stop, officers have every incentive to continue, which is why the exact words of a suspect's one clear statement carry so much weight.

This half of Thompkins fits against the waiver half taught earlier. A warned suspect who has not invoked, and who stays quiet for a time before answering a question, is in the position Thompkins occupied: the silence did not invoke, and the answer can support a finding of implied waiver if the warnings were understood and the answer was uncoerced.⁴⁶ The two halves explain each other, because the clear-statement requirement that keeps silence from invoking the right also means police may question a warned suspect who has neither invoked nor waived. Waiver is also not a one-way door, since any waiver, express or implied, can be contradicted by an invocation at any time, which terminates further interrogation.⁴⁷ A suspect who has been answering questions can therefore still stop the session by saying plainly that the questioning should end, and that statement governs from that moment on.

The exam trap lies in treating silence, however prolonged, as an invocation. A stem that describes a warned suspect who sits quietly for hours, answers a few questions with a word or a nod, and declines to sign an acknowledgment form invites the answer that the suspect asserted the right to silence. That answer is wrong, because Thompkins did all of those things and still had not invoked.⁴⁸ What police may do after a clear invocation depends on which right the suspect invoked, and the sections on questioning after invocation take that up. Whether the prosecution may use a suspect's post-warning silence as evidence is a separate question, which the next subsection addresses.

Post-Warning Silence as Evidence

The two preceding subsections asked what a warned suspect must do to stop police from asking questions. A different question arises at trial, where the issue is whether the prosecution may take the suspect's silence and offer it to the jury as evidence. The answer comes from Wainwright v. Greenfield, which held that the prosecution may not use a defendant's post-warning silence as evidence to counter an insanity defense.⁵⁰ The invocation cases could suggest that silence too ambiguous to stop an interrogation is silence the State may exploit freely, and Greenfield shows why that inference fails.

Greenfield was charged with sexual battery and pleaded not guilty by reason of insanity.⁵¹ After his arrest the officer gave him the Miranda warnings, and he said that he understood them and wanted to talk to an attorney before making any statement; each time he was asked whether he wished to give up the right to remain silent, he declined.⁵² At trial the prosecutor argued that his silence after the warnings was evidence of his sanity, and the closing argument recounted the station-house exchange in which he said no when asked whether he wanted to talk and yes when asked whether he wanted an attorney.⁵³ The Supreme Court held that this use violated due process, because the Miranda warnings carry an implicit assurance that silence will carry no penalty.⁵⁴

The reasoning extends the earlier decision in Doyle v. Ohio, which had barred the use of post-warning silence to impeach a defendant's trial testimony. The State argued that proving sanity was different from proving the offense, and the Court found no warrant for the distinction: in both settings the State gives warnings to protect constitutional rights, implicitly promises that exercising them will not be penalized, and then uses that exercise to obtain a conviction.⁵⁵ The mechanism is easy to see. A warning tells the suspect that silence is a right, and if the prosecutor could later present that silence to the jury as proof, the warning would work as a trap, offering the right with one hand and penalizing its use with the other. The Court also rejected the argument that silence says more about sanity than about guilt, because the unfairness comes from the State breaking its own implied assurance, whatever the silence happens to prove.⁵⁶ The implicit assurance rationale therefore ties the bar to the warnings themselves, so what matters is that the silence followed them.

The bar leaves the State a legitimate route. Its interest in showing that the defendant seemed rational at the time of arrest could be served by carefully framed questions that avoid any mention of the defendant's exercise of the rights to remain silent and to consult counsel.⁵⁷ What the State cannot do is use the exercise of those rights as the evidence.

Timing also marks the boundary. When a suspect who is neither in custody nor warned responds to police questioning by simply standing mute, the silence may be admitted at trial as evidence of guilt, because the general rule is that a person must assert the privilege to benefit from it, as Salinas v. Texas held.⁵⁹ The difference follows from the reasoning above. Without warnings no assurance has been given, and the Court has noted that no governmental action induced silence maintained before arrest and warnings.⁶⁰ The line therefore falls at the warnings: silence after them is shielded from penalty, while silence in an unwarned, noncustodial setting is not.

The trap on an exam is the inference that silence which fails to invoke the right must be fair game at trial. The two rules answer different questions. The clear-statement requirement decides whether police must stop asking questions in the interview room, and Greenfield decides whether the prosecution may use the silence as evidence. A stem in which a warned defendant stayed quiet, later pleaded insanity, and faces a prosecutor who points to that calm silence as proof of sanity describes inadmissible use, even though the silence never invoked anything.