The police have developed extraordinary means of overcoming good sense and persuading/manipulating people to say things to them that will inure to their great detriment. It’s perhaps the most significant tool that ever existed in obtaining convictions, whether the speaker is guilty or innocent. It’s one of the very few things that police do well, and they do it very well. But signing one’s name to a piece of paper is another matter entirely.
People have, thankfully, a fear of signing. Speaking aloud doesn’t seem to implicate the same level of permanency, of seriousness, as signing one’s name to a piece of paper. Whether that paper is a written statement or confession, or merely an acknowledgment of the Miranda warning, or a consent to interrogation or search, the act of signing causes some different mix of chemicals in the brain that hits the limit of what people will do impetuously.
It’s for this reason that the Second Circuit decision In US v. Plugh is so significant. By a 2-1 majority, the court held:
This appeal raises the question of whether a suspect in custody and informed of his rights in accordance with Miranda v. Arizona, 384 U.S. 436 (1966), is entitled to the prophylactic bar prohibiting police questioning established in Edwards v. Arizona, 451 U.S. 477 (1981) (right to counsel), and Michigan v. Mosley, 423 U.S. 96 (1975) (right to silence), when he expresses uncertainty with regard to asserting his Fifth Amendment rights while contemporaneously refusing to sign a waiver of rights form. We believe he is entitled to the prophylaxis and affirm the district court. By unequivocally refusing to sign the waiver form in response to a custodial agent’s instruction to sign the waiver form if defendant agreed with it, defendant in this case invoked his Fifth Amendment rights, and therefore his custodial agents were required to refrain from further interrogation.
Notwithstanding the equivocal nature of a defendant’s reaction to Miranda warning, a constant source of problems given that few defendants are bold enough to just say “no” or not speak at all, the refusal to execute a waiver of rights form has been held to constitute a sufficient invocation of the privilege against self-incrimination to stop further interrogation.
This has long been one of the most absurd fictions of criminal law, that a defendant’s failure to speak the magic words to terminate questioning reflects an equivocal position, allowing cops to use every manipulative weapon on their tool belt to get him to spill his guts and confess. Only a judge could believe that an inartful attempt to invoke one’s right, to refuse to speak, is really equivocal. People are scared to death to refuse to succumb to the demands of cops, and will do almost anything to avoid their wrath. An affirmative refusal to comply is like begging for a good beating. Nobody wants to be the recipient of a cop’s wrath.
But the refusal to sign the waiver form is a bright line test, and one that conforms to the will of most defendants, despite police pressure. They will talk, but they don’t want to sign.
Don’t sign, and that’s that. Let’s hope that this decision stands.
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A really important part of this decision is the holding that the clear invocation rule, set out in Davis v. U.S., does not apply at the initial waiver stage. Davis concerned a defendant who initially waived his rights, talked with investigators, and then later made an ambiguous reference to counsel. In this new case, Plugh, the majority says that Davis applies to subsequent invocations but not to initial waivers. The Ninth Circuit also reached that conclusion in U.S. v. Rodriguez, 518 F.3d 1072 (9th Cir. 2008).
A number of courts have mindlessly applied Davis to the initial waiver stage. Plugh may help stop this trend.
Of course, Plugh may also lead more officers to pursue implied and not express waivers.