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Waiving the Fifth Amendment Privileges

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A voluntary and intentional relinquishment of a known right. Waivers can be explicit (express waiver) or implicit (implied waiver). An express waiver requires a writing or a statement of waiver. An implied waiver can occur simply by some action, where such action indicates one’s intention to waive the rights. The act for an implied waiver must unequivocally indicate the desire to waive one’s rights. See Rosenthal v. New York Life Ins. Co., 99 F.2d 578 (8th Cir. 1938).

An intentional attempt to deceive or otherwise persuade a suspect through use of false promise or inducement so that he or she will waive or otherwise relinquish rights and respond to an interrogation.

Dissenting Opinion:
All appellate decisions, including Supreme Court decisions, are made by a panel of judges - three or more – rather than by a single judge. When some minority of the judges disagree with the decision reached by the majority, the disagreeing judges are said to “dissent,” and may choose to write a dissenting opinion, indicating the areas in which they disagree and the reasons for their disagreement. Similarly, judges agreeing with the conclusions of either the majority or the dissent but disagreeing with all or part of the rationale, may choose to write a concurring opinion in which they lay out their rationale. Dissenting opinions and concurring opinions are not binding law and do not automatically set precedent for future courts; although their logic may be used upon reconsideration of the issue.

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 that 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.

EXAMPLE (2): 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.

It is important to note here that Teterman’s actions in the previous example do not prevent him from later asserting his Fifth Amendment right to remain silent regarding any future questions asked of him. The Miranda court held that the privilege is not waived “if the individual answers some questions or gives some information on his own, prior to invoking his right to remain silent.” Miranda v. Arizona, 384 U.S. 436, 476 (1966).

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." -Carnley v. Cochran, 369 U.S. 506, 516 (1962).

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 naive 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.

Recently, in Berghuis v. Thompkins, 560 U.S. 370 (2010), the United States Supreme Court held that mere silence is insufficient to invoke the right to remain silent.  There, the suspect chose to not speak, but after hours of questioning eventually gave some response.  The lower court held that his hours of silence was enough for police to know that he had invoked his right to remain silent.  The Supreme Court disagreed and held that the defendant must specifically invoke the right to remain silent before police must stop questioning.  The Court further held that unless the suspect invokes his right to remain silent, any responses made to police would be deemed a waiver of that right. 

Take note that the Thompkins court also employed the standard of “knowing and voluntary” instead of “intelligently and understandingly” when determining whether a Fifth Amendment waiver had transpired.