Waiving the Fifth Amendment Privileges
Because the Fifth Amendment privilege against self-incrimination, as interpreted by the Miranda court, is a right that can be waived by the defendant, it is important to understand what constitutes a waiver for Miranda purposes and what are the consequences of such a waiver.
A Miranda waiver will not be implied merely from a Defendant’s silence, and the prosecution bears the burden of showing that Defendant had waived her Miranda rights. Although a Defendant can waive her Miranda rights expressly or impliedly, a court finding of an implied waiver requires conduct which evidences an intent to knowingly and voluntarily waive her rights. See North Carolina v. Butler, 441 U.S. 369 (1979).
EXAMPLE (1) Jerry Costansa is in police custody being questioned for public lewdness. After reading the Miranda warning, Officer Newman hands Jerry two pieces of paper and indicates that the first should be signed to acknowledge that he has been read his rights and the second should be signed only if he wishes to waive those rights. Jerry signs both. Clearly, Jerry has waived his rights.
In a nearby precinct, Mr. A. Teterman has been arrested for fraud. Apparently,
his “Suburban Sombrero,” which he claims is made in a small
village in Mexico which he discovered on a cold, rainy night in January,
while looking for an ancient soup recipe, is actually made by inmates
in the Ohio Correctional system. After being read the Miranda warning,
Mr. Teterman is handed forms similar to those given to Jerry in the
previous example. Before he even looks at the forms, however, Mr. Teterman
launches into a lengthy story about the incredible quality attained
by otherwise brusque men in their small cells. He admits to having intentionally
defrauded his customers. Although he did not sign the forms and did
not ever say “yes, I waive my rights,” Mr. Teterman’s
action – telling his story – evidences a knowing and voluntary
waiver of his right to remain silent and his right to have an attorney
present during questioning.
A few years prior to the Supreme Court decision in Miranda, the Court laid the groundwork for determining whether or not a Defendant had waived his Fifth Amendment privileges. The Court stated:
"The record must
show, or there must be an allegation and evidence which show, that an
accused was offered counsel but intelligently and understandingly rejected
the offer. Anything less is not a waiver."
In Miranda, the Court cited the Carnley language, and went on to say:
"[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the Defendant did not voluntarily waive his privilege."
Miranda v. Arizona, 384 U.S. 436, 477 (1966).
So, what does it mean to “intelligently and understandingly” waive one’s rights in the absence of threats, trickery, or cajolery? In California v. Stewart, one of the cases decided at the same time as the Miranda decision, police held four people in addition to Stewart, the defendant, in jail for a period of five days during which time they were interrogated. One of these was Stewart’s wife. These were not defendants in the case but happened to be present when Stewart was arrested. At the end of five days, when Stewart confessed, his wife and the others were released, and the police indicated that they had no evidence connecting these four with any crime. During the five days, Stewart was interrogated nine separate times by police and, except for the first session, Stewart was always alone in the room with the police. According to the Court, there was no indication that Stewart was ever advised of his rights.
In Stewart, the waiver of rights, if any, certainly was not made “intelligently and understandingly,” but rather, in response to repeated interrogation and the imprisonment of his wife and associates. Clearly, extended interrogation combined with the coercive nature of having one’s spouse kept in jail makes voluntary waiver highly unlikely.
In Fare v. Michael C., 442 U.S. 707 (1979), the Defendant, 16 1/2 year old Michael C., had asked for his probation officer to be present during questioning. The California lower court found that the boy was not a naïve 16 1/2 year old but that he had been to probation camp in the past, had a probation officer, and despite his request for his probation officer, he had waived his right to remain silent and his right to have counsel present during questioning. The Supreme Court of California reversed, finding that he had, in fact, invoked his Fifth Amendment privilege. The United States Supreme Court reversed the California Supreme Court’s decision.
The United States Supreme Court in Michael C., held that it is possible to find waiver of the Fifth Amendment rights based on the totality of the circumstances, even when the defendant involved is a minor who requests the presence of an adult other than his attorney.
In their dissenting opinion, Justices Marshall, Brennan, and Stevens emphasized the “coercive pressures of custodial interrogation.” Apparently, however, this was insufficient for the majority of the Court to find a Fifth Amendment violation, given the facts of the case.
EXAMPLE: Bart is a juvenile who is taken into custody for making lewd telephone calls to Mrs. Crabopple. At a proceeding to determine whether he is “delinquent,” an adverse finding on which could result in commitment to a state institution, and in the presence of his mother, Bart admits to having made some of the telephone calls in question. There is nothing on the record to indicate that his admissions were made while knowing that he did not have to respond and without knowing that he could not be penalized for failing to respond. Bart’s admissions cannot be used against him. See In re Gault, 387 U.S. 1 (1967).
In short, whether someone has waived her Fifth Amendment privilege to remain silent and have an attorney present will depend on the totality of the circumstances, bearing in mind the duration of custodial interrogation as well as the sophistication of the Defendant and any other relevant factors.
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