Facts: Defendant is taken into custody and read his rights. The defendant is asked to waive his rights but he declines. An investigator then sits down in the small interview room with the defendant in silence for five minutes, three to five feet away from him, until the defendant asks for some water. The investigator brings it to him, and then the defendant asks what is going on. The investigator responds that the defendant knows what is going on, and the defendant asks if the police want to talk about him ratting on a cocaine dealer. The investigator then brings up the fact that his colleagues want to talk to him, and the defendant then agrees to talk and waives his rights and confesses.
So does it come in? In the First Circuit, silence is golden. At least for the prosecution. The Court held that the police fastidiously honored the defendant’s right of silence, and gave him silence in return. Since the defendant, not the police, reinitiated communication, he could not hide behind Miranda.
To a lot of folks, this would seem to be police work at its finest. To others, this would be substituting brute psychological force for the good old rubber hose. Orin Kerr says that this decision set his BS detector off in a big way, but others questioned whether any rule could be crafted to do away with subtle psychological pressure. The latter point, however, reminds one of the “Christian burial speech” case, which didn’t let the desire for a bright line test get in the way of prohibiting what was clearly on the wrong side of the line.
The bottom line for practitioners is that defendants must be told to be silent, no matter how painful it may be to do or how awkward the situation feels. Of course, we know that few can actually follow instructions to begin with, and fewer still don’t try to out-think both the cops and their lawyers by mouthing something that seems brilliant to them at the moment but will later serve to cut them off at the knees on trial. And so we keep pounding it home: Remain silent. No matter what. Silent. Silent. Silent. And hope for the best.
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