Police Interrogations and Confessions in Massachusetts [2012 ed.] 1575897342

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Police Interrogations and Confessions in Massachusetts Hon. Peter W. Agnes, Jr.

NEW ENGLAND

Keep raising the bar.

®

2130366B01

2012 EDITION

MCL E

Massachusetts Continuing Legal Education, Inc. Ten Winter Place, Boston, MA 02108-4651 1-800-966-6253 | www.mcle.org

Police Interrogations and Confessions in Massachusetts 2012 EDITION Hon. Peter W. Agnes, Jr.

MCL E

NEW ENGLAND

Keep raising the bar.®

Police Interrogations and Confessions in Massachusetts 2012 EDITION

Hon. Peter W. Agnes, Jr.

2130366B01

© 2012, Peter W. Agnes, Jr. All rights reserved. To obtain permission to reprint this work, contact MCLE, Director of Publications. The cover photo is of a bas relief created by John Paramino of Boston whose work is well represented at the State House and throughout the city of Boston. It adorns the Suffolk County Courthouse at Pemberton Square. Photograph by Peter W. Agnes, Jr. Printed and distributed by Massachusetts Continuing Legal Education, Inc. Printed in the United States of America LCCN: 2012946214 ISBN: 1-57589-734-2 Massachusetts Continuing Legal Education, Inc. Ten Winter Place, Boston, MA 02108-4751 800-966-6253 | Fax 617-482-9498 | www.mcle.org

To my parents, Rita and Peter, who taught me by their example the values to live by. And for my wife Eileen, without whose love, patience, generosity, and trust this book would not have been completed.

PREFACE This book has occupied my time and energy for many years. But without the assistance of others, it could not have been completed. I have benefited from the work of my colleagues in the trial court whose care and attention in writing comprehensive opinions containing detailed findings of fact and rulings of law on pretrial motions to suppress has not only contributed to some of the leading appellate decisions, but has also independently advanced the development of the law. * I also owe a debt of gratitude to the talented and hard-working prosecutors and defense attorneys who have litigated thousands of pretrial motions to suppress evidence and trials before me in the courtrooms of the district and superior courts where I sat for twenty-one years. I hope this book will assist them in better understanding the rapidly changing law relating to confessions. I also have benefited from the observations I have made of thousands of police officers who testified in my courtrooms. I extend to those who try to follow the law, treat persons in their care with respect, and conduct interrogations with the goal of discovering the truth my respect and admiration. I also want to recognize and thank the many law students who worked for me as legal interns while attending the Massachusetts School of Law, Northeastern University School of Law, and other law schools and who contributed valuable For example, the decision by Justice Janet Kenton-Walker of the Superior Court in Commonwealth v. Nga Truong, 28 Mass. L. Rptr. 223, 2011 WL 1886500 (Worcester Superior Court) (2011), suppressing the confession of a juvenile charged with homicide, is a good example of the high quality and educational value of so many trial court opinions. Her decision was not appealed and led to the filing of a nolle prosequi by the district attorney which terminated the prosecution of the juvenile. It is a model opinion deserving of study by judges, lawyers, and police officers. This case, which became the focus of an award-winning series of radio reports by WBUR radio reporter David Boeri who posted the videotaped interrogation on the internet, offers a comprehensive guide to police interrogation tactics that previously have been criticized by the Supreme Judicial Court and have no place in the interrogation of persons suspected of a crime. Cases like Nga Truong and Commonwealth v. Baye, 462 Mass. 246 (2012) (also suppressing a confession that was video-recorded) also are powerful examples of the importance of audio or video recording of custodial police interrogations.

*

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research and editorial assistance to me over the years. In particular, I wish to acknowledge the tireless efforts of Ms. Nadia Klystov, Esq., a graduate of the Massachusetts School of Law and my current law clerk at the Appeals Court. She has provided invaluable assistance as an excellent researcher and gifted proof-reader over the course of several years. This book would not be possible without the support and encouragement of John M. (Jack) Reilly, Esq., Executive Director of Massachusetts Continuing Legal Education, Inc., (MCLE). Jack and his staff, including Annette Turcotte, Production Manager, Jason Curran, Production Coordinator, and Ian McPherson, Copy Editor, undertook this project with enthusiasm and the utmost degree of professionalism, and produced it in near record time. I also must thank Mr. Robert Brink, Esq., Executive Director of the Social Law Library and Executive VicePresident of the Flaschner Judicial Institute for his support in arranging for this book to be distributed to Massachusetts trial judges. I take full responsibility for any errors. I will do my utmost to correct any errors if readers are kind enough to bring them to my attention. Finally, I have endeavoured to be accurate about every citation and statement in this book. While it may be read as an expression of my views and opinions on a variety of issues, I reserve judgment, as I must, on any issue that may come before me as a judge and will decide any cases involving the subject matter of this book on the basis of the particular facts and the law independent of what may be contained in this book. Peter W. Agnes, Jr. September 2012

ABOUT THE AUTHOR HON. PETER W. AGNES, JR. was appointed as an Associate Justice of the Appeals Court in September, 2011. Prior to that, he served as an Associate Justice of the Superior Court (2000-2011) and as the First Justice of the Charlestown District Court (1991-2000). Judge Agnes is an adjunct professor of law at the Massachusetts School of Law. He has lectured often for MCLE, the Judicial Institute of the Trial Court, and the Flaschner Judicial Institute.

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TABLE OF CONTENTS Introduction Chapter 1

The Rights of a Person Who Is Arrested

Chapter 2

The Miranda Doctrine

Chapter 3

The Voluntariness Doctrine

Chapter 4

The Exclusionary Rule

Chapter 5

False Confessions

Appendix

Uniform Electronic Recordation of Custodial Interrogations Act Table of Cases Table of Statutes, Rules and References Index

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Introduction Hon. Peter W. Agnes, Jr. * Appeals Court, Commonwealth of Massachusetts § I.1

The Significance of the Debate over the Scope of the Miranda Doctrine .......................................... I–2

§ I.2

The Growing Divergence Between Federal and State Law ........................................................... I–6 § I.2.1 Moran v. Burbine (Supreme Court) ............. I–6 § I.2.2 Commonwealth v. Mavredakis (SJC) ............................................................ I–7

§ I.3

False Confessions...................................................... I–7

§ I.4

The Educational Needs of Police Officers, Lawyers, and Judges ................................................ I–8 § I.4.1 Miranda v. Arizona, 384 U.S. 436 (1966) (Excerpts)..................................................... I–9 (a) Opinion for the Majority (Warren, C.J.) ...................................... I–9 (b) Separate Opinion by Justice Clarke (Concurring in Part, Dissenting in Part) ............................................... I–13 (c) Separate Opinion by Justice Harlan (Dissenting) ....................................... I–14 (d) Separate Opinion by Justice White (Dissenting) ....................................... I–16

Over the course of more than two decades of service as a Massachusetts trial court judge before joining the Massachusetts Appeals Court in September, 2011, I conducted hundreds of hearings in criminal cases involving motions to suppress evidence in the form of confessions and admissions. In almost all the cases, the witnesses were exclusively police officers. Occasionally, a civilian witness was called; only rarely did the defendant take the stand. More recently, the evidence also included an audio tape or video tape of the interrogation session. I also conducted hundreds of trials in which incriminating statements made by the defendant, *

Copyright © 2012 Peter W. Agnes, Jr. All rights reserved.

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usually as a result of an interview or custodial interrogation by the police, were admitted into evidence. My experience in these cases is consistent with what lawyers and judges have reported for decades—confession evidence is the gold standard, and when admitted at trial almost always results in a conviction. 1 My reasons for writing this book are several.

§ I.1

THE SIGNIFICANCE OF THE DEBATE OVER THE SCOPE OF THE MIRANDA DOCTRINE

I first read the 1966 decision by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966) when I was in college. I gravitated to the views expressed by Justice Byron White in dissent: we should not presume that every stationhouse confession is the product of compulsion by the police, and the new regime of warnings and waiver will spell the end of confession evidence in most cases. See § I.4.1(d), infra. It was not until I worked with the police as a prosecutor and later evaluated custodial interrogations in many different settings as a trial judge that I began to understand the myriad of pressures and motives that contribute to confessions during custodial interrogations. Some pressures are reasonable and unavoidable, but some are clearly unreasonable and preventable. Likewise, there are many different motives that account for why people confess their responsibility for a crime to the police; some I believe are legitimate and ones that society accepts as reasonable, but others are the product of fear, confusion and a sense of hopelessness that are in conflict with the values that underlie the privilege against self-incrimination. With experience, I also realized that notwithstanding the requirements of Miranda, the vast, vast majority of people who are given Miranda warnings and questioned by the police unhesitatingly waive their rights. As time passed, I came to the conclusion that the rules and procedures developed by federal and state courts in the wake of the Miranda decision address some the most fundamental and important questions we confront in the administration of our criminal justice system. Miranda is a case that bears reading and rereading because it addresses the most fundamental questions of criminal justice—how to allocate the balance of power between the state and the individual suspected of or charged with a crime. In addition to adjudicating the rights of the parties in five separate but consolidated cases (each of which offers valuable insights into the nature of the psychological methods of police interrogation which began to emerge in the middle of the twentieth century), it contains a dialogue among the justices about the history and meaning of the Fifth Amendment—perhaps the most enigmatic provision of

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the federal Bill of Rights. 2 This dialogue is not only about history and methods of constitutional interpretation, but also about the role of the Supreme Court. One of the greatest challenges courts face in the modern era is to what extent it is permissible to regulate the discretion of Executive Branch law enforcement officials, particularly the police, when it trenches upon fundamental constitutional rights. The most important feature of the Miranda decision is its holding that the Fifth Amendment is applicable during custodial interrogation at the police station prior to any judicial proceedings. This was a radical departure from prior interpretations of the Fifth Amendment and is the foundation of the Miranda doctrine which I discuss in Chapter 2. 3 At one point in the Miranda decision, Chief Justice Warren describes the holding as follows: “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 4 But in the same paragraph immediately following this sentence, the opinion sets forth a guideline that reads much like a police department policy or legislative enactment: As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. 5 2012 Edition

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The tension between these differing statements in the Miranda decision is not simply an academic point. It lies at the heart of many post-Miranda decisions by the Supreme Court and the Supreme Judicial Court (SJC), and has special relevance to the growing concern expressed by the SJC about the manner in which some police officers conduct custodial interrogations. 6 The debate about whether the Miranda doctrine restricts the use by the police of certain methods of interrogation or is simply an exclusionary rule is clearly evidenced by the views expressed by various justices in Chavez v. Martinez, 538 U.S. 760, (2003) (plurality). In Chavez, the Supreme Court reversed the Ninth Circuit and decided that: • coercive questioning of a suspect in violation of Miranda did not violate the Self-Incrimination Clause of the Fifth Amendment unless the prosecution used the suspect’s compelled statements in the criminal case against him (opinion by Thomas, J.); • the police sergeant’s failure to inform the suspect of his Miranda warnings before custodial interrogation did not violate the suspect’s constitutional rights, and thus could not be grounds for a federal civil rights action against the police under 42 U.S.C. § 1983 (opinion by Thomas, J.); and • whether the interrogated suspect could pursue a claim of liability against the police for substantive due process violation was an issue to be addressed on remand (opinion of Souter, J.). In reaching this result, the justices revealed deep divisions of thought about the meaning of the Miranda decision. 7 The question of how to read Miranda has been addressed by the SJC as well. In at least one decision prior to Chavez, the SJC observed that the Miranda doctrine imposes a direct limitation on police discretion. See, e.g., Commonwealth v. Smith, 412 Mass. 823, 832 n.9 (1992) (Greaney, J.) (“However, because interrogation without benefit of the Miranda warnings is itself improper police conduct, the absence of a break in the stream of events, in some circumstances, may mandate the suppression of a post-Miranda statement, even where the suspect made no incriminating statement during the course of the illegal interrogation.”) (emphasis added). 8 The meaning of the Miranda doctrine played a pivotal role in Commonwealth v. Simon, 456 Mass. 280 (2010), in which the majority held that the presence of an attorney during police questioning of a suspect, when the suspect has had an opportunity to consult with counsel beforehand, was an adequate substitute for the giving of Miranda warnings. Writing for the majority in Simon, Justice Cowin described Miranda as a “‘prophylactic’ mechanism, see New York v. Quarles, 467 U.S. 649, 653, (1984), to safeguard the protections afforded by the Fifth Amendment during police interrogation.” Id. at 285. Justice Cowin later I–4

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stated in the majority opinion that “[t]he Miranda warnings are not an independent right, but serve as a safeguard of the underlying right against self-incrimination.” Id. at 289. 9 Although Massachusetts has not adopted the Miranda doctrine as a matter of state constitutional or common law, Massachusetts cases have described it as advancing the interests safeguarded by Article 12 of the Declaration of Rights. 10 The predominant view is that Miranda does not directly regulate the conduct of the police, and does not prescribe a guideline for how to properly conduct police interrogations, but rather establishes rules that must be observed by law enforcement in order to admit statements into evidence that are the product of custodial interrogation. Given the ease with which the Miranda rules have been modified and adjusted by the Supreme Court over the years it may be more accurate today to describe the Miranda doctrine at the federal level as simply, or at least primarily, a device to provide suspects with notice of their Fifth Amendment right to remain silent and right to counsel. 11 However, the rules in question that must be met to ensure that a confession is admissible at trial are not limited to those first announced in Miranda as revised in later decisions by the Supreme Court. 12 In this book, I use the phrase “Miranda doctrine” to refer to the totality of rules under federal and state law which includes, but is not limited to, the rules announced by the Supreme Court in Miranda. In recent years, the SJC has exhibited growing concern with certain interrogation tactics used by the police. 13 It remains to be seen whether the SJC will continue to rely primarily on a case by case application of the exclusionary rule to remedy violations of the Miranda doctrine and the requirement that statements must be voluntary, or whether it will enunciate new bright-lines differentiating between permissible and impermissible methods of interrogation based on state common or constitutional law. Apart from whether the SJC enunciates new guidelines regulating police interrogations, 14 I am persuaded that the legal community should give priority attention to research about interrogation practices used by local and state police. Although this topic is beyond the scope of this book, I hope consideration will be given to the formation of an expert panel of prosecutors, the police, defense counsel, and subject-matter experts from the academic and research community to study police interrogation practices currently in use and to prepare a report recommending the best practices to use and discouraging the use of high risk interrogation practices. 15 The growing availability of video recordings of police interrogations makes such a project much easier than it would have been a decade or more ago. This is not simply a matter of academic interest. While I have observed many examples of officers conducting custodial interrogations with fairness and respect for the subject under interrogation, 16 I also have observed or heard testimony about interrogations in which the officers were neither fair nor respectful. 17 The revelations in some recent cases in which the interrogations were videotaped are 2012 Edition

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disturbing. 18 The law enforcement community, the defense bar, and the scientific community have worked well together to integrate new learning about what contributes to mistaken identification into operations in the field in order to avoid or at least minimize the risk of mistaken identification. I think this experience may be useful in helping to conceptualize the most effective way in which to develop best practices relating to custodial police interrogations.

§ I.2

THE GROWING DIVERGENCE BETWEEN FEDERAL AND STATE LAW

This book also is prompted in part by the modern doctrine of judicial federalism in which state courts may rely on adequate and independent state law grounds such as the common law, statutes, the public policy of the state, and the state constitution to reach results that are more protective of individual rights than under federal law. In Massachusetts, the SJC has relied on state law to go beyond the requirements of federal law to safeguard individual rights, especially in cases involving searches and seizures, identification procedures, and confessions. 19 In some cases, the state law rule is simply based on an earlier federal doctrine that has been superseded by more restrictive interpretations of federal law by the U.S. Supreme Court. In other cases, as discussed infra, the state law rule is based on differences in the wording of the state and federal constitutions or different assessments of the factors involved in constitutional interpretation and the development of the common law. In recent years, the divergence between federal and state law in the area of police interrogations and confessions has grown significantly. These divergent state law decisions are discussed throughout the book (along with similar decisions from other state jurisdictions), but they are arranged as a whole in a concise format in Chapter 4. One of the principal differences between federal and state law is the far greater importance which state law attaches to the role of counsel in helping to ensure the effectiveness of the Miranda warnings. Consider the following two cases in particular.

§ I.2.1

Moran v. Burbine (Supreme Court)

“Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. . . .” Admissions of guilt are more than merely desirable they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law. On the other hand, the Court has recognized that the interrogation process is inherently coercive and that, as a I–6

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consequence, there exists a substantial risk that the police will inadvertently traverse the fine line between legitimate efforts to elicit admissions and constitutionally impermissible compulsion. Miranda attempted to reconcile these opposing concerns by giving the defendant the power to exert some control over the course of the interrogation. 20

§ I.2.2

Commonwealth v. Mavredakis (SJC)

Accordingly, art. 12 requires a higher standard of protection than that provided by Moran. The Moran analysis proceeds from the assumption that information regarding the immediate availability of an attorney has no bearing on a suspect’s ability knowingly and intelligently to waive Miranda rights. As other courts have mentioned, however, there is an important difference between the abstract right to speak with an attorney mentioned in the Miranda warnings, and a concrete opportunity to meet with an identified attorney actually able to provide at least initial assistance and advice. Faced with a concrete offer of assistance. . . a suspect may well decide to reclaim his or her continuing right to legal assistance. Essentially, the duty to inform a suspect of an attorney’s efforts to render assistance is necessary to actualize the abstract rights listed in Miranda v. Arizona, 384 U.S. 436 (1966). Accordingly, the duty to inform is only another way of saying that the rights listed in the Miranda case are substantively meaningful. Any other approach would lend tacit approval to affirmative police interference with the attorney-client relationship. We prefer to view the role of the lawyer. . . as an aid to the understanding and protection of constitutional rights, rather than as a nettlesome obstacle to the pursuit of wrongdoers. 21

§ I.3

FALSE CONFESSIONS

The third reason for writing this book is to shed some light on the phenomenon of false confessions by sharing some of the knowledge that has been gained about this phenomenon as a result of studies of cases involving persons who were wrongfully convicted and imprisoned due in part to the admission of false confessions, but who later were exonerated as a result of DNA test results. In a detailed analysis of the first 250 DNA exonerations, Professor Brandon Garrett found that 16 percent included a false confession. 22 “Astonishingly, out of the forty false confessions of DNA exoneration studied by Garrett, thirty-eight (ninety-five percent) contained detailed and persuasive incriminating facts that must either wittingly or unwittingly originated from the police.” 23 The problem is compounded by what Dr. Leo calls “the myth of psychological interrogation”—a well-documented phenomenon that consists of a firm (though false) belief by the vast majority of people that it is not possible for a person to confess 2012 Edition

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to a crime that he or she did not commit.” 24 A growing body of social science research is helping to identify factors which may contribute to false confessions. This topic is covered in Chapter 5.

§ I.4

THE EDUCATIONAL NEEDS OF POLICE OFFICERS, LAWYERS, AND JUDGES

The fourth reason for writing this book is purely educational. The volume of fairly new and significant decisional law addressing the Miranda doctrine and the voluntariness doctrine at the state and federal level is so great that it is time for a fresh analysis that drills down deeper than previous efforts and seeks to explicate the holdings of the cases by placing greater reliance on the actual words used by the courts. I have made every effort to be precise about what federal and state law requires or permits. Although the book is written primarily for practitioners and trial judges, I hope it will be of assistance to others, including criminal justice students, line police officers, those engaged in legal and judicial education and in the training and education of police officers. For the most part, the law is presented, as I think it should be, by quoting excerpts from the actual cases, as opposed to general statements about them. I also have tried to avoid lengthy string citations which simply lump cases into categories while ignoring important distinctions. I have used explanatory parentheticals for many of the cases cited. Where there is a bright-line rule that governs a situation, I have tried to identify it as such. 25 Finally, I have made every effort to suppress editorilizations or speculation about what the law should be, and to confine myself to authoritative statements about the law in reported decisions. 26 In a small number of instances, I have made reference to the views expressed in dissenting or concurring opinions. I also have tried to include references to decisions from other jurisdictions. While not binding on Massachusetts courts, they may supply useful secondary authority for the prosecution and the defense. Before searching for answers in this book or reading particular sections that may be pertinent to the issue at hand, I strongly encourage lawyers, judges, police officers, teachers, or any interested citizen who picks it up to find the time to read the decision in Miranda v. Arizona. At a minimum, I recommend that readers at least examine the following excerpts.

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§ I.4.1 (a)

§ I.4

Miranda v. Arizona, 384 U.S. 436 (1966) (Excerpts) Opinion for the Majority (Warren, C.J.) Even without employing brutality, the third degree or the specific stratagems described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals. This fact may be illustrated simply by referring to three confession cases decided by this Court in the Term immediately preceding our Escobedo decision. In Townsend v. Sain, 372 U.S. 293 (1963), the defendant was a 19-year-old heroin addict, described as a near mental defective. The defendant in Lynumn v. State of Illinois, 372 U.S. 528 (1963), was a woman who confessed to the arresting officer after being importuned to cooperate in order to prevent her children from being taken by relief authorities. This Court as in those cases reversed the conviction of a defendant in Haynes State of Washington, 373 U.S. 503 (1963), whose persistent request during his interrogation was to phone his wife or attorney. In other settings, these individuals might have exercised their constitutional rights. In the incommunicado police-dominated atmosphere, they succumbed. 27 It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. The current practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles—that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. 28 Thus we may view the historical development of the privilege as one which groped for the proper scope of

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governmental power over the citizen. As a noble principle often transcends its origins, the privilege has come rightfully to be recognized in part as an individual’s substantive right, a right to a private enclave where he may lead a private life. That right is the hallmark of our democracy. All these policies point to one overriding thought: the constitutional foundation underlying the privilege [against selfincrimination] is the respect a government—state or federal—must accord to the dignity and integrity of its citizens. To maintain a fair state-individual balance, to require the government to shoulder the entire load, . . . to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. 29 The question in these cases is whether the privilege is fully applicable during a period of custodial interrogation. In this Court, the privilege has consistently been accorded a liberal construction. We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during in-custody questioning. An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery. 30 Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of I–10

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persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against selfincrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored. 31 Once warnings have been given, the subsequent procedure is clear. 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. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. 32 Our decision is not intended to hamper the traditional function of police officers in investigating crime. When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the 2012 Edition

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compelling atmosphere inherent in the process of incustody interrogation is not necessarily present. 33 In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today. 34 A recurrent argument made in these cases is that society’s need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged. 35 In announcing these principles, we are not unmindful of the burdens which law enforcement officials must bear, often under trying circumstances. We also fully recognize the obligation of all citizens to aid in enforcing the criminal laws. This Court, while protecting individual rights, has always given ample latitude to law enforcement agencies in the legitimate exercise of their duties. The limits we have placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement. As we have noted, our decision does not in any way preclude police from carrying out their traditional investigatory functions. Although confessions may I–12

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play an important role in some convictions, the cases before us present graphic examples of the overstatement of the ‘need’ for confessions. In each case authorities conducted interrogations ranging up to five days in duration despite the presence, through standard investigating practices, of considerable evidence against each defendant. Further examples are chronicled in our prior cases. 36 It is also urged upon us that we withhold decision on this issue until state legislative bodies and advisory groups have had an opportunity to deal with these problems by rule making. We have already pointed out that the Constitution does not require any specific code of procedures for protecting the privilege against self-incrimination during custodial interrogation. Congress and the States are free to develop their own safeguards for the privilege, so long as they are fully as effective as those described above in informing accused persons of their right of silence and in affording a continuous opportunity to exercise it. In any event, however, the issues presented are of constitutional dimensions and must be determined by the courts. The admissibility of a statement in the face of a claim that it was obtained in violation of the defendant’s constitutional rights is an issue the resolution of which has long since been undertaken by this Court. Judicial solutions to problems of constitutional dimension have evolved decade by decade. As courts have been presented with the need to enforce constitutional rights, they have found means of doing so. That was our responsibility when Escobedo was before us and it is our responsibility today. Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. 37

(b)

Separate Opinion by Justice Clarke (Concurring in Part, Dissenting in Part) Rather than employing the arbitrary Fifth Amendment rule which the Court lays down I would follow the more pliable dictates of the Due Process Clauses of the Fifth and Fourteenth Amendments which we

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are accustomed to administering and which we know from our cases are effective instruments in protecting persons in police custody. In this way we would not be acting in the dark nor in one full sweep changing the traditional rules of custodial interrogation which this Court has for so long recognized as a justifiable and proper tool in balancing individual rights against the rights of society. It will be soon enough to go further when we are able to appraise with somewhat better accuracy the effect of such a holding. 38

(c)

Separate Opinion by Justice Harlan (Dissenting) While the fine points of this scheme are far less clear than the Court admits, the tenor is quite apparent. The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion. Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers. Rather, the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim in short is toward ‘voluntariness’ in a utopian sense, or to view it from a different angle, voluntariness with a vengeance. To incorporate this notion into the Constitution requires a strained reading of history and precedent and a disregard of the very pragmatic concerns that alone may on occasion justify such strains. I believe that reasoned examination will show that the Due Process Clauses provide an adequate tool for coping with confessions and that, even if the Fifth Amendment privilege against self-incrimination be invoked, its precedents taken as a whole do not sustain the present rules. Viewed as a choice based on pure policy, these new rules prove to be a highly debatable, if not one-sided, appraisal of the competing interests, imposed over widespread objection, at the very time when judicial restraint is most called for by the circumstances. 39 I turn now to the Court’s asserted reliance on the Fifth Amendment, an approach which I frankly regard as a

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trompe l’oeil. The Court’s opinion in my view reveals no adequate basis for extending the Fifth Amendment’s privilege against self-incrimination to the police station. Far more important, it fails to show that the Court’s new rules are well supported, let alone compelled, by Fifth Amendment precedents. Instead, the new rules actually derive from quotation and analogy drawn from precedents under the Sixth Amendment, which should properly have no bearing on police interrogation. The Court’s opening contention, that the Fifth Amendment governs police station confessions, is perhaps not an impermissible extension of the law but it has little to commend itself in the present circumstances. Historically, the privilege against self-incrimination did not bear at all on the use of extra-legal confessions, for which distinct standards evolved; indeed, ‘the history of the two principles is wide apart, differing by one hundred years in origin, and derived through separate lines of precedents. Practice under the two doctrines has also differed in a number of important respects. Even those who would readily enlarge the privilege must concede some linguistic difficulties since the Fifth Amendment in terms proscribes only compelling any person ‘in any criminal case to be a witness against himself. 40 Without at all subscribing to the generally black picture of police conduct painted by the Court, I think it must be frankly recognized at the outset that police questioning allowable under due process precedents may inherently entail some pressure on the suspect and may seek advantage in his ignorance or weaknesses. The atmosphere and questioning techniques, proper and fair though they be, can in themselves exert a tug on the suspect to confess, and in this light ‘[t]o speak of any confessions of crime made after arrest as being voluntary or ‘uncoerced’ is somewhat inaccurate, although traditional. A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser. Until today, the role of the Constitution has been only to sift out undue pressure, not to assure spontaneous confessions. 41 2012 Edition

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What the Court largely ignores is that its rules impair, if they will not eventually serve wholly to frustrate, an instrument of law enforcement that has long and quite reasonably been thought worth the price paid for it. There can be little doubt that the Court’s new code would markedly decrease the number of confessions. To warn the suspect that he may remain silent and remind him that his confession may be used in court are minor obstructions. To require also an express waiver by the suspect and an end to questioning whenever he demurs must heavily handicap questioning. And to suggest or provide counsel for the suspect simply invites the end of the interrogation. 42 While passing over the costs and risks of its experiment, the Court portrays the evils of normal police questioning in terms which I think are exaggerated. Albeit stringently confined by the due process standards interrogation is no doubt often inconvenient and unpleasant for the suspect. However, it is no less so for a man to be arrested and jailed, to have his house searched, or to stand trial in court, yet all this may properly happen to the most innocent given probable cause, a warrant, or an indictment. Society has always paid a stiff price for law and order, and peaceful interrogation is not one of the dark moments of the law. 43

(d)

Separate Opinion by Justice White (Dissenting) That the Court’s holding today is neither compelled nor even strongly suggested by the language of the Fifth Amendment, is at odds with American and English legal history, and involves a departure from a long line of precedent does not prove either that the Court has exceeded its powers or that the Court is wrong or unwise in its present reinterpretation of the Fifth Amendment. It does, however, underscore the obvious—that the Court has not discovered or found the law in making today’s decision, nor has it derived it from some irrefutable sources; what it has done is to make new law and new public policy in much the same way that it has in the course of interpreting other great clauses of the Constitution. This is what the

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Court historically has done. Indeed, it is what it must do and will continue to do until and unless there is some fundamental change in the constitutional distribution of governmental powers. 44 Today’s result would not follow even if it were agreed that to some extent custodial interrogation is inherently coercive. The test has been whether the totality of circumstances deprived the defendant of a free choice to admit, to deny, or to refuse to answer, and whether physical or psychological coercion was of such a degree that the defendant’s will was overborne at the time he confessed. The duration and nature of incommunicado custody, the presence or absence of advice concerning the defendant’s constitutional rights, and the granting or refusal of requests to communicate with lawyers, relatives or friends have all been rightly regarded as important data bearing on the basic inquiry. But it has never been suggested, until today, that such questioning was so coercive and accused persons so lacking in hardihood that the very first response to the very first question following the commencement of custody must be conclusively presumed to be the product of an overborne will. 45 If the rule announced today were truly based on a conclusion that all confessions resulting from custodial interrogation are coerced, then it would simply have no rational foundation. A fortiori that would be true of the extension of the rule to exculpatory statements, which the Court effects after a brief discussion of why, in the Court’s view, they must be deemed incriminatory but without any discussion of why they must be deemed coerced. Even if one were to postulate that the Court’s concern is not that all confessions induced by police interrogation are coerced but rather that some such confessions are coerced and present judicial procedures are believed to be inadequate to identify the confessions that are coerced and those that are not, it would still not be essential to impose the rule that the Court has now fashioned. Transcripts or observers could be required, specific time limits, tailored to fit the cause, could be imposed, 2012 Edition

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or other devices could be utilized to reduce the chances that otherwise indiscernible coercion will produce an inadmissible confession. 46 All of this makes very little sense in terms of the compulsion which the Fifth Amendment proscribes. That amendment deals with compelling the accused himself. It is his free will that is involved. Confessions and incriminating admissions, as such, are not forbidden evidence; only those which are compelled are banned. I doubt that the Court observes these distinctions today. By considering any answers to any interrogation to be compelled regardless of the content and course of examination and by escalating the requirements to prove waiver, the Court not only prevents the use of compelled confessions but for all practical purposes forbids interrogation except in the presence of counsel. That is, instead of confining itself to protection of the right against compelled selfincrimination the Court has created a limited Fifth Amendment right to counsel—or, as the Court expresses it, a ‘need for counsel to protect the Fifth Amendment privilege. The focus then is not on the will of the accused but on the will of counsel and how much influence he can have on the accused. Obviously there is no warrant in the Fifth Amendment for thus installing counsel as the arbiter of the privilege. 47 The obvious underpinning of the Court’s decision is a deep-seated distrust of all confessions. As the Court declares that the accused may not be interrogated without counsel present, absent a waiver of the right to counsel, and as the Court all but admonishes the lawyer to advise the accused to remain silent, the result adds up to a judicial judgment that evidence from the accused should not be used against him in any way, whether compelled or not. This is the not so subtle overtone of the opinion—that it is inherently wrong for the police to gather evidence from the accused himself. And this is precisely the nub of this dissent. I see nothing wrong or immoral, and certainly nothing unconstitutional, in the police’s asking a suspect whom they have reasonable cause to arrest I–18

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whether or not he killed his wife or in confronting him with the evidence on which the arrest was based, at least where he has been plainly advised that he may remain completely silent, Until today, the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence. Particularly when corroborated, as where the police have confirmed the accused’s disclosure of the hiding place of implements or fruits of the crime, such confessions have the highest reliability and significantly contribute to the certitude with which we may believe the accused is guilty. Moreover, it is by no means certain that the process of confessing is injurious to the accused. To the contrary it may provide psychological relief and enhance the prospects for rehabilitation. 48 The rule announced today will measurably weaken the ability of the criminal law to perform these tasks. It is a deliberate calculus to prevent interrogations, to reduce the incidence of confessions and pleas of guilty and to increase the number of trials. Criminal trials, no matter how efficient the police are, are not sure bets for the prosecution, nor should they be if the evidence is not forthcoming. Under the present law, the prosecution fails to prove its case in about 30% of the criminal cases actually tried in the federal courts. But it is something else again to remove from the ordinary criminal case all those confessions which heretofore have been held to be free and voluntary acts of the accused and to thus establish a new constitutional barrier to the ascertainment of truth by the judicial process. There is, in my view, every reason to believe that a good many criminal defendants who otherwise would have been convicted on what this Court has previously thought to be the most satisfactory kind of evidence will now under this new version of the Fifth Amendment, either not be tried at all or will be acquitted if the State’s evidence, minus the confession, is put to the test of litigation. 49 Forty-six years after the decision in Miranda v. Arizona, police officers, lawyers, and judges continue to struggle to do their jobs well within the framework of an 2012 Edition

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array of rules which are far more complex than when first announced in 1966, due in no small part to the number of changes and adjustments made by the Supreme Court and the number of further changes and adjustments by state courts acting under state law. But while the law is complex and calls upon the police to make difficult decisions without the benefit of the cool reflection that is the luxury of judges, we are all engaged in a great enterprise that demands that each of us—police officers, prosecutors, defense counsel, and judges—give our very best effort. As Dean and Solicitor General Erwin Griswold observed in his famous lectures on the Fifth Amendment, the privilege against self-incrimination is “an ever present reminder of our belief in the importance of the individual, a symbol of our highest aspirations. As such, it is a clear and eloquent expression of our basic opposition to collectivism, to the unlimited power of the state.” 50 Despite its shortcomings and limitations, Miranda is a bulwark against the evisceration of the privilege against self-incrimination, and a monument to the principle of justice for all. As Peter Baird wrote in a Wall Street Journal counterpoint editorial on the twenty-fifth anniversary of the decision in Miranda, “[m]ore than anything else, Miranda v. Arizona means that information about our constitutional rights is no longer rationed on the basis of wealth, experience, or education.” 51

NOTES 1

See Commonwealth v. Tavares, 385 Mass. 140, 152 (1982), quoting Clifton v. United States, 371 F.2d 354, 362 (D.C. Cir. 1966) (Leventhal, J., concurring).

2

“The self-incrimination clause of the Fifth Amendment is an unsolved riddle of vast proportions, a Gordian knot in the middle of our Bill of Rights.” Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles, 46 (Yale Univ. 1997).

3

See Jim Newton, Justice for All: Earl Warren and the Nation He Made, 466 (Riverhead Books 2006).

4

Miranda v. Arizona, 384 U.S. 436, 444 (1966).

5

Id. at 444–45.

6

See, e.g., Commonwealth v. Baye, 462 Mass. 246 (2012).

7

See, e.g., Chavez v. Martinez, 538 U.S. 760, 768 (2003) (Thomas, J.) (announcing judgment of the court) (“[M]ere coercion does not violate the text of the Self-Incrimination Clause absent use of the compelled statements in a criminal case against the witness.”); Id. at 770 (Thomas, J.) (“In the Fifth Amendment context, we have created prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause. . . .

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[T]he procedural safeguards required by Miranda not themselves rights protected by the Constitution but. . . measures to insure that the right against compulsory self-incrimination was protected to provide practical reinforcement for the right. The Miranda exclusionary rule. . . serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself.”) (citations and quotations omitted); Id. at 772 (Thomas, J.) (“Rules designed to safeguard a constitutional right, however, do not extend the scope of the constitutional right itself, just as violations of judicially crafted prophylactic rules do not violate the constitutional rights of any person.”); Id. at 773 (Thomas, J.) (“Our views on the proper scope of the Fifth Amendment’s Self-Incrimination Clause do not mean that police torture or other abuse that results in a confession is constitutionally permissible so long as the statements are not used at trial; it simply means that the Fourteenth Amendment’s Due Process Clause, rather than the Fifth Amendment’s Self–Incrimination Clause, would govern the inquiry in those cases and provide relief in appropriate circumstances.”); Id. at 788 (Stevens, J., concurring in part, dissenting in part) (“Justice Thomas’ opinion is fundamentally flawed in two respects. It incorrectly assumes that the claim it rejects is not a due process claim, and it incorrectly assumes that coercive interrogation is not unconstitutional when it occurs because it merely violates a judge-made ‘prophylactic’ rule. But the violation in this case is far more serious than a mere failure to advise respondent of his Miranda rights; moreover, the Court disavowed the ‘prophylactic’ characterization of Miranda in Dickerson v. United States, 530 U.S. 428, 437–439 (2000)); Id. at 789 (Kennedy, J., concurring in part, dissenting in part) (“I agree with Justice Thomas that failure to give a Miranda warning does not, without more, establish a completed violation when the unwarned interrogation ensues.”); Id. at 795–96 (Kennedy, J.) (“In my view the Self-Incrimination Clause is applicable at the time and place police use compulsion to extract a statement from a suspect. The Clause forbids that conduct. A majority of the Court has now concluded otherwise, but that should not end this case. It simply implicates the larger definition of liberty under the Due Process Clause of the Fourteenth Amendment.”); Id. at 801–02 (Ginsburg, J., concurring in part, dissenting in part) (She joins Justice Kennedy in stating that the Fifth Amendment is applicable at the time of the defendant’s interrogation and then adds the following: “In common with the Due Process Clause, the privilege against selfincrimination safeguards “the freedom of the individual from the arbitrary power of governmental authorities. Quoting E. Griswold, The Fifth Amendment Today 51 (1955)”). 8

This observation, of course, is dictum. Also, it is contradicted by the observation by Justice Cowin in Commonwealth v. Simon, 456 Mass. 280 (2010) (also dictum), which is discussed in the text.

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9

Justice Cowin elaborated on this point as follows: “Our holding today is consistent with the United States Supreme Court’s decision in Dickerson v. United States, 530 U.S. 428 (2000). In Dickerson, the Court reiterated what it had stated thirty-four years earlier in the Miranda decision itself: Miranda warnings are not required where a fully effective substitute is present. The Court explained in Dickerson that, although the Constitution does require a “procedure that is effective in securing [accused persons’] Fifth Amendment rights,” the “particular Miranda warnings” are not constitutionally required in all circumstances. Id. at 440 n.6. Additionally, the Dickerson Court expressly rejected the proposition set forth in the dissent in that case that “nothing else [other than Miranda warnings] will suffice to satisfy constitutional requirements.” Id. at 442. Nor did the Court, by invalidating a Federal statute allowing the admission of all voluntary confessions, suggest in any way that the presence of counsel is not an adequate effective substitute for Miranda warnings. See Id. at 435–36, 442–43. What the Court held in Dickerson was that a statute that directed courts to assess the voluntariness of confessions by using a totality of the circumstances test conflicted with Miranda because it revived an approach to the subject that the Court had already determined was inadequate to ensure that Fifth Amendment rights would be observed. Id., Dickerson addressed the acceptability of a totality of the circumstances test, not the existence or identity of other adequate safeguards of the Fifth Amendment privilege.” Simon, 456 Mass. at 290–91. In a vigorous dissent for two other justices, Justice Botsford stated that the Court should adopt the Miranda doctrine as a matter of state law. “This court has never had the occasion to consider requiring, as a separate matter of State law under art. 12, that Miranda warnings be given as a condition precedent to custodial police interrogation. This case presents such an occasion. I would adopt, as a matter of our common law in order to actualize the guarantees of art. 12, a true bright-line rule that in every custodial interrogation, police must first administer Miranda warnings and obtain the suspect’s own waiver of his right against selfincrimination, no matter whether counsel is also present, and no matter whether counsel and the suspect consulted beforehand. Unless the suspect has heard the warnings from the interrogator, no statement obtained as a result of the interrogation should be admitted in evidence.” Simon, 456 Mass. at 307 (Bostford J., dissenting) (citation omitted).

10

See Commonwealth v. Martin, 444 Mass. 213, 218 (2005) (noting that Miranda “protects both Fifth Amendment rights and rights guaranteed under art. 12.”). See also Commonwealth v. Snyder, 413 Mass. 521, 531 (1992). As noted infra in Chapters 2, 3, and 4, on numerous occasions the SJC has supplemented the federal Miranda doctrine with additional requirements based on state law. See, e.g., Commonwealth v. Clarke, 461 Mass. 326 (2012), and cases cited.

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11

George C. Thomas III and Richard A. Leo, Confessions of Guilt, 178–79 (Oxford Univ. Press (2012).

12

For example, in Commonwealth v. DiGiambattista, 442 Mass. 443 (2004) (holding that if police do not audio or video record a custodial interrogation at the police station the defendant is entitled to a special cautionary instruction informing them to view the confession with great caution and care).

13

For example, in Commonwealth v. Baye, the Court made this observation: “Here, the troopers employed multiple problematic tactics, many of which they used repeatedly throughout the nearly ten-hour interrogation. The troopers exaggerated the strength of the evidence against the defendant, while simultaneously minimizing the moral and legal gravity of his alleged crimes. They then suggested that if he did not confess then and there, he would be charged with crimes more serious than those of which they thought him guilty. They mischaracterized the law of murder, felony-murder, and accident, telling him that he would not be guilty of murder if he had intended the fire as a prank. Finally, when the defendant stated that he wished to consult with an attorney, the troopers dissuaded him from doing so by clearly implying that his statements would not be used to “accuse” him of or “charge” him with any serious felony, but would instead be presented to prosecutors as evidence of his good faith cooperation.” 462 Mass. 246, 257 (2010).

14

The SJC has already done so in a series of decisions requiring the police to notify a suspect in custody that her attorney is trying to reach her, and to inform the person of the attorney’s specific advice relating to the exercise of her Miranda rights. See Commonwealth v. McNulty, 458 Mass. 305 (2010); Commonwealth v. Mavredakis, 430 Mass. 848 (2000).

15

See Christian A. Meissner, Maria Hartwig, Melissa B. Russano, “The Need for a Positive Psychological Approach and Collaborative Effort for Improving Practice in the Interrogation Room,” Law and Human Behavior (2010) (“[W]e believe it is important to recognize that the responsibility to change interrogation practice lies not only with policy makers and practitioners, but also with the scientific community. Ultimately, the challenge for future research is to begin the development of evidence-based practices that might aid law enforcement in eliciting more diagnostic confession evidence, and thereby provide an alternative to the problematic methods that are currently employed.”); Saul M. Kassin, Steven A. Drizin, Thomas Grisso, Gisli H. Gudjonsson, Richard A. Leo, and Allison D. Redlich, “Police Induced Confessions: Risk Factors and Recommendations,” 34 Law and Human Behavior 3, 25 (2010) (scientific review paper of the American Psychology-Law Society (AP-LS), Division 41 of the American Psychological Association ) (offering a series of recommendations with the hope that they “will inspire a true collab-

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orative effort among law enforcement professionals, district attorneys, defense lawyers, judges, social scientists, and policy makers to scrutinize the systemic factors that put innocent people at risk and devise effective safeguards.”). 16

Without prejudging what the catalog of best practices should include, the following ten components may serve as a starting point toward development of a Model Custodial Interrogation Protocol: —(i) a commitment to record custodial interrogations in their entirety in all cases, including video and audio, without giving the suspect or witness the option to decline to be recorded; (ii) a set of objective criteria for use by police to determine when a juvenile or adult is not fit, on the basis of physical, medical or psychological condition or age, to be subjected to custodial interrogation; (iii) reviewing all relevant case facts, especially information from any forensic examinations that have been conducted, prior to the interrogation sessions; (iv) a careful reading of the Miranda warnings using a plain English version like the one recommended by the American Bar Association and discussed in Chapter Two, and, where appropriate, explaining the Miranda warnings to the suspect; (v) asking the suspect if he or she wishes to waive or give up the Miranda rights (the so-called “Fifth warning”); (vi) use of active listening techniques; (vii) avoiding monologues and greater use of open-ended questions; (viii) avoiding knowingly false statements about material facts or the law, and contamination which results from sharing case specific facts with the subject; (ix) avoiding actual or implied promises of leniency; and (x) observing a reasonable limit on the length of an interrogation. Such a protocol is at variance with the predominant guilt-presumptive method of police interrogation known as the “Reid Method,” currently in use throughout the United States. See, e.g., Fred E. Inbau, John E. Reid, Joseph P. Buckley, Brian C. Jayne, Criminal Interrogation and Confessions (5th ed. 2012) (discussed further in Chapters 2 and 3). Any such protocol should allow the police to make reasonable judgments about the criteria that will not be secondguessed by after-the-fact judicial review. Finally, such an undertaking should at least consider elements of the British approach to investigative interviewing as mandated by the Police and Criminal Evidence Act of 1984 (PACE) and the Codes of Practice for police officers. See Saul M. Kassin, Sara C. Appleby and Jennifer Torkildson Perillo, “Interviewing suspects: Practice, Science, and Future Directions,” 15 Legal and Criminological Psychology 39–55 (2010); Gisli H. Gudjonsson and John Pearse, “Suspect Interviews and False Confessions,” 20 Current Directions in Psychological Science 33 (2010). The folks at John Reid and Associates, who offer training in the “Reid method,” dismiss the British approach on grounds that its non-accusatory nature is not an effective technique to arrive at the truth, and that significant differences in the British criminal law and procedure makes their interrogation

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NOTES

practices inapplicable to American police interrogations. See http://www.reid.com/pdfs/peacearticle.pdf (last viewed July 15, 2012). These are issues that should be explored further. 17

The problem is not confined to the police. There is a large and growing number of private security officers who work side by side with the police (and, at times, as agents of the police). The interrogation practices of this group should also be examined.

18

See, e.g., Commonwealth v. Baye, 462 Mass. 246 (2012), and cases cited; Commonwealth v. Nga Truong, 28 Mass. L. Rptr. 223 (Worcester Superior Court), 2011 WL 1886500 (2011).

19

See generally Chapter 4, infra.

20

Moran v. Burbine, 475 U.S. 412, 426 (1986) (majority opinion by O’Connor, J.) (citations and quotations omitted).

21

Commonwealth v. Mavredakis, 430 Mass. 848, 860 (2000). See also Commonwealth v. McNulty, 458 Mass. 305, 318 (2010).

22

See Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, 181 (2011).

23

Gisli H. Gudjonsson, “False Confessions and Correcting Injustices,” 46 N.E.L. Rev. 689, 691 (2012).

24

Id. at 31.

25

See, e.g., Commonwealth v. Simon, 456 Mass. 280, 294 (2010).

26

One exception to this rule is the suggestion in Chapter 2 that the use of a simplified set of Miranda warnings like those developed and recommended by the American Bar Association would not only better serve the interests of law enforcement, but, in view of the solid and growing volume of evidence that some versions of the Miranda warnings in use around the country may not be understood by certain juvenile and adult offenders with mental health problems, developmental disabilities, and other impairments, or simply due to poor reading and comprehension skills, would advance the goals of the Miranda doctrine. A second exception is that there is now compelling evidence that audio or video recording all custodial interrogations should be a mandatory requirement as it is now in fifteen states and the District of Columbia. If a trial is truly a search for the truth, we short change our jurors and thus our capacity to achieve justice by not mandating that all custodial interrogations must be recorded. See Hendricks v. Swanson, 456 F. 2d. 503, 507 (1972), quoted in Thomas P. Sullivan, “The Department of Justice’s Misguided Resistance to Electronic Recording of Custodial Interviews, 59 Fed. Lawyer 62, 69 (July 2012). “[R]ecording is hardly a new recommendation. Perhaps

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one hundred other writers are on record recommending some form of recording. . . . [T]he future of ordinary police interrogation is intimately connected with recording. . . . [A]n accurate recording of an interrogation permits courts to put themselves in the position of the suspect and make a more informed decision about waiver and voluntariness.” George C. Thomas and Richard A. Leo, Confessions of Guilt, 221 (Oxford Univ. Press 2012). The Uniform Law Commission (ULC) has drafted and distributed to each state legislature a recommended uniform law on recording custodial interrogations known as the Uniform Electronic Recordation of Custodial Interrogations Act. The proposed law is contained in the appendix included with this book. According to Andrew E. Taslitz, Professor of Law at Howard University law School and the reporter for the project, “[t]he drafting committee and its many interest group (stakeholder) liaisons constituted a diverse lot, including judges, defense attorneys, police officers, prosecutors, victims' rights advocates, and a host of other interested parties. Each group offered different perspectives—indeed, perspectives often varying within each group. This diversity was intended by the ULC for several reasons. First, it built political support by educating members that stereotypes about groups' views were often wrong. Skeptical officers, for example, gave more credence to arguments from advocates who were fellow officers than from advocates who were defense attorneys. Second, the diversity ensured, as much as is possible in a politically charged debate, that the drafting committee had wide support among and within many stakeholder groups.” Taslitz, “High Expectations And Some Wounded Hopes: The Policy and Politics of a Uniform Statute On. . . 7,” Northwestern Journal of Law and Social Policy 400, 403 (2012). 27

Miranda v. Arizona, 384 Mass. 436, 455–56 (1966) (majority opinion by Warren, C.J.) (citations and quotations omitted).

28

Id. at 457–58.

29

Id. at 460 (citations and quotations omitted).

30

Id. at 460–61 (citations and quotations omitted).

31

Id. at 467.

32

Id. at 473–74.

33

Id. at 477–78 (citation omitted).

34

Id. at 478 (footnote omitted).

35

Id. at 479 (citation omitted).

36

Id. at 481 (footnote omitted).

37

Id. at 490–91 (citation omitted).

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38

Id. at 503 (footnote omitted) (Clarke, J., dissenting & concurring in the result).

39

Id. at 505 (Harlan, J. dissenting).

40

Id. at 510–11 (citations and footnote omitted).

41

Id. at 515 (quotation and footnote omitted).

42

Id. at 516 (footnote omitted).

43

Id. at 517.

44

Id. at 531 (White, J., dissenting) (footnote omitted).

45

Id. at 534–35 (citations omitted).

46

Id. at 535 (citations omitted).

47

Id. at 536–37.

48

Id. at 537–38 (citations and quotation omitted).

49

Id. at 541–42 (citations and footnote omitted). For an authoritative and comprehensive assessment of Miranda, see Confessions of Guilt, supra n.11.

50

Erwin N. Griswold, The Fifth Amendment Today, 81 (1955).

51

See Gary L. Stuart, Miranda: The Story of America’s Right to Remain Silent 101 (Univ. Ariz. Press 2004), (quoting Peter Baird, Wall Street Journal).

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CHAPTER 1

The Rights of a Person Who Is Arrested Hon. Peter W. Agnes, Jr. * Appeals Court, Commonwealth of Massachusetts

*

§ 1.1

The Privilege Against Self-Incrimination ............... 1–2

§ 1.2

Overview of the Miranda Doctrine ......................... 1–3 § 1.2.1 The Basic Framework .................................. 1–3 (a) Duty to Administer Miranda Warnings ............................................. 1–3 (b) The Administration of the Warnings Versus the Waiver of the Rights........... 1–4 (c) Right to Remain Silent ........................ 1–5 (d) Right to Counsel.................................. 1–5 § 1.2.2 The Evolving Nature of Massachusetts Law .............................................................. 1–7

§ 1.3

Notice of Crime Charged ......................................... 1–9

§ 1.4

Right to Counsel ....................................................... 1–9

§ 1.5

Admission to Bail ................................................... 1–10 § 1.5.1 The Purpose of Bail ................................... 1–10 § 1.5.2 Constitutional Rights ................................. 1–10 § 1.5.3 Standards for Admission to Bail ................ 1–11 § 1.5.4 In-Court Bail Hearing ................................ 1–11 § 1.5.5 Conditions of Release ................................ 1–12 § 1.5.6 Out-of-Court (“After Hours”) Bail............. 1–13 (a) The Persons Authorized to Set Bail or to Release Defendants on Personal Recognizance................. 1–13 (b) Fees ................................................... 1–13

Copyright © 2012 Peter W. Agnes, Jr. All rights reserved.

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(c) The Procedure Governing Out-of-Court Bail ............................. 1–14 § 1.5.7 Preventative Detention .............................. 1–14 § 1.5.8 Incompetent Defendant or Juvenile ........... 1–17 (a) Regular Bail Hearing ........................ 1–17 (b) Dangerousness Hearings................... 1–17 § 1.6

Rights of Foreign Nationals under the Vienna Convention ............................................................. 1–18

§ 1.7

The Booking Process ............................................. 1–22 § 1.7.1 General Rule ............................................. 1–22 § 1.7.2 Juveniles .................................................... 1–22

§ 1.8

The Right to Prompt Presentment to the Court ............................................................ 1–23 § 1.8.1 General Rule ............................................. 1–23 § 1.8.2 “Safe Harbor“ Rule ................................... 1–24 § 1.8.3 What Triggers the “Safe Harbor” Rule...... 1–25 § 1.8.4 Tolling the Running of the “Safe Harbor” Rule ................................... 1–26 § 1.8.5 Waiver of the “Safe Harbor” Rule ............. 1–26

§ 1.9

The Right to Use the Telephone ............................ 1–26

§ 1.10

The Right to an Independent Medical Examination ........................................................... 1–27

§ 1.1

THE PRIVILEGE AGAINST SELFINCRIMINATION

The privilege against self-incrimination under both the Fifth Amendment to the Constitution of the United States and Article 12 of the Massachusetts Declaration of Rights has deep roots which extend back to the twelfth century and the struggles between the English people and the Crown and the controversy over the powers of Ecclesiastical courts and the Court of Star Chamber to compel people to swear to the oath ex officio (obliging them to truthfully answer all questions put to them) and then submit to interrogation without knowing any details of the charge or the identity of the accuser. 1 1–2

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For purposes of this book, it is sufficient to note that “[l]ong before Miranda v. Arizona 2, was decided, it was held that a defendant who is in custody has a right to remain silent.” 3 “The postarrest silence of a defendant, such as a failure to deny an accusation, may not be used substantively to prove his guilt. The right of a defendant to remain silent in such a situation was established as a principle of the common law in this Commonwealth long before it became a matter of constitutional right.” 4 The privilege against self-incrimination under the Massachusetts Constitution is broader in scope than the corresponding privilege under the U.S. Constitution. 5 For example, in Massachusetts, a person’s refusal to perform a test or to turn over nontestimonial evidence is protected by the privilege. 6

§ 1.2

OVERVIEW OF THE MIRANDA DOCTRINE 7

§ 1.2.1

The Basic Framework

(a)

Duty to Administer Miranda Warnings

Police officers are not required to administer Miranda warnings to everyone whom they question nor simply because a person is arrested. 8 Miranda warnings are required when the police subject a person to “custodial interrogation.” 9 “Custodial interrogation” refers to any “questioning initiated by law enforcement officers after [an individual is] taken into custody.” 10 “For any statement made during custodial interrogation to be admissible against the defendant at trial, both the Federal and State constitutions require that the prosecution prove that the defendant waived these rights before making the statement.” 11 The “fundamental purpose of. . . Miranda [is] ‘to assure that the individual’s right to choose between speech and silence remains unfettered throughout the interrogation process.’” 12 Therefore, Miranda warnings are not required simply because a person is the focus of a police investigation, 13 or because the questioning takes place in a police station, 14 or a jail or a correctional institution. 15 A person is not entitled to Miranda warnings prior to or during preliminary police questioning associated with a motor vehicle stop, 16 prior to field sobriety tests, 17 or prior to or during a pat frisk during a street encounter. 18 Private parties, including school officials, are not required to advise persons of Miranda rights prior to questioning. 19

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(b)

POLICE INTERROGATIONS AND CONFESSIONS

The Administration of the Warnings Versus the Waiver of the Rights

To determine the admissibility of a defendant’s statement, it is necessary to distinguish between the administration of the Miranda warnings and a waiver of Miranda rights. 20 They are “entirely distinct inquiries” under state law but it remains to be seen whether this is true under federal law. 21 Custodial interrogation cannot take place until after there has been a valid waiver of Miranda. 22 A waiver must be made voluntarily, knowingly, and intelligently. 23 “The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.” 24 The validity of a waiver is assessed in light of the totality of the circumstances, which includes the defendant’s age, education, intelligence, and emotional stability. 25 One important factor that may affect the validity of a Miranda waiver is a language barrier. “Police must recite Miranda warnings in a language, and in a manner, an unlettered and unlearned defendant can understand. The use of a card containing the Miranda warnings is sufficient to advise a defendant of his rights, if it appears that the defendant has read the card and indicates an understanding of what he has read.” 26 As discussed in more detail in Chapter 2, a variety of other factors such as substance abuse, mental illness, cognitive deficiencies, physical illness, and the use by the police of physical violence, deception, or psychological ploys also may affect the validity of a waiver of Miranda rights. “A valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” 27 The validity of a waiver cannot be based on statements or conduct that occur after a person has asserted her right to remain silent or her right to counsel. 28 Merely because a person in police custody says he or she understands his or her Miranda rights does not establish a valid waiver. 29 When a person signs a written form containing a waiver of Miranda rights, this is an important factor in determining whether the waiver was knowing and voluntary, but it is not dispositive. 30 When at any point while a person is in police custody he or she makes a statement or engages in conduct which the police believe may amount to a request to remain silent or a request to consult with an attorney, even if it is unclear, it is “good police practice” to clarify the person’s position before custodial interrogation commences or continues. 31

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§ 1.2

Right to Remain Silent

Once a person in police custody has asserted his or her right to remain silent, the police have a duty to scrupulously honor it. 32 “The right to remain silent described in Miranda includes ‘not only the right to remain silent from the beginning [of questioning] but also a continuing right to cut off, at any time, any questioning that does take place.’” 33 “Absent such ‘scrupulous’ protection of the right to remain silent, statements made after invocation of the right are inadmissible in the prosecution’s case-in-chief.” 34 In the prewaiver setting, before there has been a valid waiver of Miranda rights, the U.S. Supreme Court has decided that there must be an “unambiguous” assertion of the right to remain silent before the police have a duty to suspend questioning. 35 However, Massachusetts law is less demanding than federal law in terms of what the defendant is required to do at the prewaiver stage to assert his or her Miranda rights. Once the defendant, by his or her words or actions, asserts his or her right to remain silent with “sufficient clarity,” the police have a duty to “scrupulously honor” that right and must suspend questioning. 36 In the postwaiver setting, Massachusetts law, like federal law, requires the defendant to demonstrate in an unambiguous manner that he or she wishes to assert the right to remain silent. 37 Once administered and waived, Miranda warnings are not required to be repeated at every stage of a police interrogation. 38 However, the police are required to make “every effort” to ensure that a person does not unknowingly give up basic rights such as the right to remain silent. 39

(d)

Right to Counsel

The right to counsel in connection with the Miranda doctrine is derived from the Fifth Amendment to ensure the availability of the privilege against selfincrimination in the setting of a custodial interrogation, usually, though not exclusively, in the police station. Generally, once the defendant asserts his or her right to counsel, all interrogation must cease until counsel is made available, unless the defendant initiates further communication with the police. 40 In the prewaiver setting, before there has been a valid waiver of Miranda rights, neither the U.S. Supreme Court nor the Supreme Judicial Court (SJC) has decided whether the “heightened clarity” standard used to measure whether there has been an assertion of the right to remain silent is applicable. 41 In the postwaiver setting, after there has been a valid waiver of Miranda rights, the federal and Massachusetts rule is that “law enforcement officers may continue 2012 Edition

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questioning until and unless the suspect clearly requests an attorney.” 42 “This post-waiver test requires that the invocation be a sufficiently clear statement such ‘that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.’” 43 In Commonwealth v. Hoyt, the SJC concluded that an exchange between the police and the defendant at the outset of the interrogation in which the officer stated, “This right here states that you understood everything I just read to you. Having these rights in mind, do you wish to speak to us now?,” followed by a response from the defendant as follows: “I’d like an attorney present. I mean but I can’t afford one. So I guess I’ll just speak to you now. I don’t have an attorney,” was an unambiguous assertion of the right to counsel that should have resulted in the termination of any further questioning. 44 “Where a suspect invokes his right to counsel but notes that he cannot afford counsel, the latter observation does not render the request for counsel equivocal. Because Miranda requires that a suspect who cannot afford an attorney will have one provided for him, indigence cannot be a ground on which to find equivocation.” 45 In Commonwealth v. Baye, 46 when, after forty-five minutes of police questioning during which the defendant said very little, he was asked if he agreed with the officer’s account, he shook his head from side to side and replied “Nope. If I’m being accused of anything, I want to talk to a lawyer.” The conversation continued as follows: The troopers did not then cease their questioning. Rather, they informed the defendant that while he had the right to speak to a lawyer, if he would instead just talk to them without counsel, “[W]e can clear this up.” Mazza told the defendant that he “still believe[d] that [he was] the kind of guy that meant just not to do” any harm by setting the fires, and almost begged the defendant to “please, please” agree to a continuation of the interrogation. The defendant responded that he’d “still wanna talk to a lawyer, just so I’m not accused of something.” Zipper told him, “we haven’t accused you of anything.” Mazza concurred, telling the defendant that if the defendant only wanted a lawyer “if we’re gonna accuse you of this,” then he need not get a lawyer at that time. In Mazza’s words, the troopers would “acquiesce to anything” if the defendant would speak to the troopers without a lawyer, because it would allow them to “work something on this case” that would 1–6

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ensure not only that the case would be put to rest, but, as Zipper put it, that the fires would not “jam [the defendant’s] life up.” 47 The SJC observed that on these facts the defendant had made an unequivocal assertion of his right to an attorney. 48 In Commonwealth v. Santos, 463 Mass. 273 (2012), when after forty-five minutes of custodial interrogation about a motor vehicle that may have played a role in the homicide under investigation, the defendant stated “You ask Lou that. I’m not going on with this conversation. I want a lawyer, because you keep--ask Lou that.” The SJC held that this was a clear invocation of the right to remain silent and the right to counsel. However, in a case of first impression, the SJC explained that the effect of the defendant’s decision to continue speaking without any intervening comment or question by the police and to qualify that he only wanted a lawyer if the police continued to question him about the car, was to leave a reasonable interrogating officer “uncertain whether defendant had invoked his Miranda rights, as the officers’ interactions with the observing officer demonstrates.” In Santos, the SJC announced a new rule to guide the police in such a situation: “In such circumstances, an interrogating officer must cease the interrogation, but is entitled to ask a question to clarify the defendant’s intent. The question—for example, in a form such as ‘I just want to be sure—do you want an attorney?—should be brief, worded only to elicit an affirmative or negative response concerning whether the suspect wants an attorney, and should not be designed to keep the suspect talking. After such an inquiry to clarify whether a suspect has indeed requested, nothing further should be asked unless the suspect responds to the question in the negative.”

§ 1.2.2

The Evolving Nature of Massachusetts Law

In numerous cases since the 1966 decision in Miranda, the SJC has determined that federal law is not adequate “to protect rights guaranteed under art. 12,” and has responded by promulgating “separate rules under State law as ‘adjuncts to the Miranda rule.’” 49 Although the SJC has not explicitly adopted the Miranda doctrine under state law, recent decisions indicate a trend whereby aspects of the Miranda doctrine jettisoned by the U.S. Supreme Court are adopted as a matter of state common or constitutional law. For example, in Commonwealth v. Clarke, 50 the SJC specifically rejected the U.S, Supreme Court’s enhanced implied waiver doctrine which was enunciated in Berghuis v. Thompkins: 51 We decline also to adopt the Thompkins approach to waiver, i.e., that when Miranda warnings have been given and understood, “an accused’s uncoerced 2012 Edition

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statement establishes an implied waiver of the right to remain silent.” Thompkins, above at 2262. In effect, the court in Thompkins reversed the burden of proof applicable to waiver: under Federal law, waiver will now be presumed from the very fact that the defendant made any uncoerced statements, but the defendant cannot invoke his right to remain silent unless he does so with the utmost clarity. As a matter of State law, we continue to impose a “heavy burden” on the Commonwealth in proving waiver. Indeed, the ambiguity of a defendant’s invocation, if not then clarified, may itself hamper the Commonwealth in establishing, beyond a reasonable doubt, the validity of any subsequent waiver. 52 The following chapters contain a detailed discussion of the sharp differences between Massachusetts law and federal law on many aspects of the Miranda doctrine. Among the many differences are these three: • First, in Massachusetts the Commonwealth has the burden of proving a valid waiver of Miranda rights by a standard of proof beyond a reasonable doubt. 53 • Second, in Massachusetts there is a strong preference for the electronic recording of police interrogations. The SJC has held that unless the police “preserve an accurate and complete recording of the interrogation. . . by means of a complete electronic recording,” the defendant is entitled, on request, to a cautionary instruction concerning the use of such evidence which advises that the state’s highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautions the jury that because of the absence of any recording of the interrogation in the case before them, they should weigh the evidence of the defendant’s statement with great caution and care. 54 • Finally, the SJC, unlike the U.S. Supreme Court, requires the police to notify a person in custody that his or her lawyer is trying to contact him or her and to communicate advice relating to the representation to the defendant. 55 See Chapters 2 and 4, below, for a detailed analysis of the Miranda doctrine, including a thorough explanation of the differences between Massachusetts law and federal law.

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§ 1.3

§ 1.3

NOTICE OF CRIME CHARGED

Every person has a right to be informed of the crime for which he or she is arrested by the person who makes the arrest or is responsible for the detention. 56

§ 1.4

RIGHT TO COUNSEL

“[T]he right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty.” 57 In Massachusetts, the beginning of adversary judicial proceedings for purposes of fixing the point when the right to counsel attaches is usually the arraignment stage. 58 “Apart from the defendant’s right to counsel in exercise of his Miranda rights, he had no other constitutional right to counsel at the [interrogation].” 59 Nevertheless, over the years, the SJC has placed a high priority on insuring that the defendant has access to an attorney who is trying to contact him or her and to important information and advice that the attorney wishes to impart to his or her client. 60 The SJC has determined that the requirements of Article 12 of the Declaration of Rights exceed those under the federal constitution and require the police, when they learn that an attorney representing a suspect held in custody is trying to reach his or her client to provide legal advice, “to inform the suspect immediately of the attorney’s efforts.” 61 The duty arises whether or not the attorney has formally been appointed to represent the defendant. 62 If the police fail to honor this duty, suppression of any statements made by the defendant following the attorney’s request is usually required. 63 In order to ensure that the defendant is in the best position to make informed choices about whether to cooperate and submit to police questioning, the SJC also held that the duty of the police when contacted by an attorney representing the defendant is “to apprise the defendant of a specific communication from his attorney that bore directly on the right to counsel.” 64 Subsequently, the SJC further explained this obligation in Commonwealth v. McNulty. 65 In McNulty, the SJC noted that there were four separate points made to the Salem police by defendant’s counsel which “bore directly on the right to counsel,” and which should have been transmitted by the police to the defendant: “(1) that the attorney represented the defendant; (2) that he wanted to speak to the defendant; (3) that the police were to tell the defendant that [attorney] Buso said not to talk to the police; and (4) that [attorney] Buso would be at the station shortly.” The SJC added that “the statements that [attorney] Buso had expressly requested to speak to the defendant and would be at the station ‘shortly’—the second and fourth points—could be of critical importance in ‘actualizing’ the abstract promise of 2012 Edition

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§ 1.4

POLICE INTERROGATIONS AND CONFESSIONS

an attorney provided by the Miranda warning into concrete reality; there is a significant difference between being told that one can stop questioning and speak to an appointed attorney, and hearing that the appointed attorney has already stated that he or she wants to meet and speak, and is in fact due to arrive at one’s side ‘shortly.’” In McNulty, the SJC stressed that although the police are not required “to deliver verbatim to a defendant the message given by his attorney,” 66 an attorney’s message that his or her client should not talk to the police or submit to a test or an examination bears directly on the right to counsel and must be passed on to the client. 67 The Massachusetts rule is strict. The police must communicate the message relating to the right to counsel from counsel to the defendant without delay. 68 When the police memorialize a defendant’s statement in such a way that it is not possible to tell whether certain statements were made by the defendant before or after his or her attorney contacted the police, all such statements must be suppressed. 69

§ 1.5

ADMISSION TO BAIL

§ 1.5.1

The Purpose of Bail

“The essential purpose of bail is to secure the presence of a defendant at trial to ensure that, if the defendant is guilty, justice will be served.” 70

§ 1.5.2

Constitutional Rights

A person who is charged with a crime does not have a constitutional right to pretrial release or to be admitted to bail. 71 Instead, the federal and state constitutions protect individuals against the imposition of excessive bail. 72 Capital cases, i.e., cases in which the defendant is charged with murder in the first degree, are sui generis in that the court has discretion to order the defendant to be held without bail without the need to make any findings. 73 Bail decisions, however, are governed by principles of substantive and procedural due process to require that judicial decisions must be based on ascertainable standards, and the defendant must be given a right to be heard and be afforded the right to counsel. 74 A person on probation who is charged with a violation of probation does not have a right to be admitted to bail if there is a judicial finding of probable cause and an order that the defendant be held in custody. 75 “Thus, at a preliminary probation revocation hearing when a judge determines probable cause exists and makes the decision to detain the probationer, the judge shall not consider bail or other terms of pretrial release as a substitute for custody. The judge may, however, 1–10

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consider bail and other issues relating to any newly alleged crime or the underlying crime for the probation violation.” 76

§ 1.5.3

Standards for Admission to Bail

Admission to bail in the District Court, Boston Municipal Court (BMC), and Juvenile Court departments is governed by G.L. c. 276, § 58. This statute has several important features. First, it includes a presumption favoring release on personal recognizance applicable in all cases except murder in the first degree. Second, it contains a specific list of the factors that may be considered in deciding whether to set bail and in what amount. 77 Third, it contains a provision for the revocation of bail for sixty days if there is probable cause to believe the defendant has committed a new offense while on bail or other release and that “the release of said person will seriously endanger any person or the community.” 78 Fourth, there is a provision for de novo review before the Superior Court. 79 General Laws c. 276, § 58 “was not intended to give the courts discretion to deny bail but rather to establish the right of the accused, in most circumstances, to be admitted to bail.” 80 In a case that arises under G.L. c. 276, § 58 involving a juvenile, the hearing before the Superior Court must be closed. Admission to bail in cases before the Superior Court after indictment or waiver of indictment is governed by G.L. c. 276, § 57 which does not contain a presumption in favor of release on personal recognizance, but rather makes the issue of release on bail a matter of discretion. 81 Thus, in a Superior Court case, the defendant may be admitted to bail only if the judge “determines that such release will reasonably assure the appearance of the person before the court and will not endanger the safety of any other person or the community. . . .” G.L. c. 276, § 57. The factors set forth in G.L. c. 276, § 58, para. 1 are appropriate to consider in making a determination under G.L. c. 276, § 57. 82 The SJC has noted that the language contained in G.L. c. 276, § 57 that refers to detention because of the offender’s dangerousness is not a substitute for the more elaborate scheme for preventative detention of dangerous persons set forth in G.L. c. 276, § 58A. 83

§ 1.5.4

In-Court Bail Hearing

Bail hearings in court do not usually involve live witnesses. The SJC has provided guidance about the nature of a bail hearing conducted in court under G.L. c. 276, § 57 or § 58. These hearings can, and usually are, based on a consideration of documents such as police reports, letters, probation records, etc. 84 “Of course, 2012 Edition

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the evidence must be sufficiently reliable to avoid any significant risk of an erroneous deprivation of liberty. A bail proceeding under Section 57 is not intended to be a mini-trial, and the rules of evidence do not apply. A full-blown evidentiary hearing that includes the right to present and cross-examine witnesses is not needed or required. However, such a hearing, or some variation, may be held in the discretion of the judge when the circumstances of a particular case warrant.” 85 Under G.L. c. 276, §§ 57 and 58, the Commonwealth must establish the grounds to support a judicial finding that bail and not release on personal recognizance is necessary by a preponderance of the evidence. 86 However, the amount of bail set by the trial judge is not tied to the evidence presented at the hearing, and involves a different question than whether to set a bail. “Once a decision to admit a defendant to bail has been reached, the amount of bail imposed is a matter of discretion, 87 subject to the constitutional prohibitions against excessive bail.” 88

§ 1.5.5

Conditions of Release

As noted earlier, bail exists to ensure the appearance of the defendant at court events. “The preferred disposition under the bail statute [G.L. c. 276, § 58] is release on personal recognizance.” 89 A court lacks implied power under the bail law or inherent judicial authority to impose conditions of release. 90 However, under modern criminal practice, in certain circumstances courts are authorized to impose conditions of release that will contribute to the defendant’s appearance at court events without the need for preventative detention, and that will simultaneously protect individuals and the community from the risk of further criminal acts by the defendant. 91 First, pretrial conditions of release that require the defendant to participate in rehabilitative programs may be ordered, with the consent of the defendant, as part of pretrial probation under G.L. c. 276, § 87 and 87A. 92 A violation of lawful conditions of release may lead to a temporary detention of the defendant. 93 Second, if there is a Section 58A dangerousness hearing and the court determines that personal recognizance will not assure the presence of the defendant in court or will endanger the safety of another or the community, but that detention without bail is not necessary, the court may, in addition to an order of bail, impose conditions of release. 94 Third, in the District and BMC departments, when a person is arraigned on charges involving assault and battery, trespass, threats, or a crime involving the imminent threat of harm to another member of the defendant’s household as defined in G.L. c. 209A, the court may, “after a hearing and findings, impose 1–12

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such terms 95 as will insure the safety of the person allegedly suffering the physical abuse or threat thereof, and will prevent its recurrence.”

§ 1.5.6 (a)

Out-of-Court (“After Hours”) Bail The Persons Authorized to Set Bail or to Release Defendants on Personal Recognizance

Out-of-court bails are governed by The Superior Court Rules Governing Persons Authorized to Take Bail (2005). 96 These rules require persons authorized to take bails (including clerk-magistrates and assistant clerks of the Superior Court, District Court, and the Boston Municipal Court departments; masters in chancery; and bail commissioners) to know the governing law and to strictly comply with it. 97 Persons who take bails must register with the Superior Court. 98 Under the rules, clerk-magistrates and assistant clerks of the Superior Court are allowed to set bail or release persons on personal recognizance for any defendant who is within the territorial jurisdiction of the county in which the clerkmagistrate or assistant clerk has authority to act even though the charges against the defendant are pending in another county. 99 Likewise, clerk-magistrates and assistant clerks of the District and Boston Municipal Court department are allowed to set bail or release persons on personal recognizance for any defendant who is within the district or division in which the clerk-magistrate or assistant clerk has authority to act even though the criminal charges against the defendant are pending in a court outside that district or division. Masters in chancery have bail authority within the county for which they are appointed. 100 Bail commissioners have authority to set bail to the extent specified in their letters of appointment. 101 The territorial authority of persons authorized to take bail may be expanded. 102

(b)

Fees

In any case involving a misdemeanor or felony, the person authorized to admit the defendant to bail or to release him or her on personal recognizance may charge a fee of forty dollars “regardless of the number of offenses” in order to bind the defendant to her recognizance. 103 The person who admits the defendant to bail or releases the defendant on personal recognizance is not permitted to receive anything of value in excess of the statutory fee. 104

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§ 1.5

(c)

POLICE INTERROGATIONS AND CONFESSIONS

The Procedure Governing Out-of-Court Bail

The Superior Court rules limit the persons who may make a request for an outof-court bail to “defendants, defendants’ families, defendants’ attorneys and the authorities holding the defendant in custody.” 105 The oath or affirmation that must be administered to the defendant by the bailing authority must be done “in the physical presence of the affiant,” and may not be done by telephone. 106 The rules also prohibit the bailing authority from delegating decision-making authority “to a police officer, jail official, bondsman or anyone else.” 107 Out-of-court bail hearings usually take place at the police station where the defendant is taken for booking following his arrest. When conducting bail hearings at such locations, the bailing authority must “perform that function impartially and in a dignified manner as befits the performance of a judicial act.” 108 No one may be admitted to bail out of court or released on his or her own recognizance unless they take an oath and affirm that they perform the requirements of their recognizance. 109 Such oaths shall be administered “with solemnity and dignity commensurate with the performance of a judicial function.” 110 The Superior Court Rules address the role and qualifications of a surety, 111 and require that the bailing authority “shall take all necessary steps” to ensure that both the principal and the surety “understand fully the nature of the obligation into which they seek to enter.” 112 The bailing authority cannot be or become a creditor of the defendant or the surety. 113 The bailing authority is prohibited from advising the defendant “as to any matter concerning the conduct of his case.” 114 Likewise, the bailing authority cannot act if he or she has acted or expects to act as counsel, “nor shall he [or she] act as counsel in any proceeding in which he has at any time taken bail or released a person on personal recognizance.” 115

§ 1.5.7

Preventative Detention

Preventative detention may be ordered in place of or in addition to bail in certain cases before the District Court, BMC, Juvenile Court, and Superior Court which involve the use, attempted use, a substantial risk of the use of physical force, or firearm offenses and in which a motion is filed by the Commonwealth at arraignment or the defendant’s first appearance. 116 “[General Laws] c. 276, § 58A, does not give a judge discretion to release a defendant pending a dangerousness hearing once there is a determination that probable cause to arrest existed and that there is good cause to continue the hear1–14

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ing.” 117 “[A]t the continuance phase the defendant does not have the right to an evidentiary hearing, but rather, his interests are adequately protected by a hearing at which counsel for both sides can argue and make representations to a judge who has discretion to expand the scope of the hearing.” 118 General Laws c. 276, § 58A allows the court to order (1) to admit the defendant to bail or to release the defendant on personal recognizance with or without conditions of release, or (2) to order the detention of the defendant without bail for up to ninety days. Whether the Superior Court judge is conducting a Section 58A hearing in a Superior Court case or on review from a District Court, BMC, or Juvenile Court case, the procedural requirements are the same. General Laws c. 276, § 58A includes the following elements: First, the motion for relief under Section 58A must be filed by the Commonwealth upon the first appearance of the defendant which usually is arraignment. Second, the Commonwealth must demonstrate that the defendant is charged with one or more of the specifically enumerated offenses that are subject to Section 58A. These are felonies involving the use, attempted use, or threatened use of physical force; felonies involving a substantial risk that physical force will be used against another; violations of restraining orders; and misdemeanors or felonies involving abuse allegedly committed while a restraining order is in effect. Firearm offenses are now also among the predicate offenses that may trigger a Section 58A hearing. 119 Third, if a motion is filed and the case qualifies for a Section 58A order, the court must conduct a hearing. Any decision on the Commonwealth’s motion must conform to the terms of the statute. Fourth, except for good cause, a continuance on motion of the person may not exceed seven days, and a continuance on motion of the attorney for the Commonwealth may not exceed three business days. If a request for a continuance is granted, “the individual shall be detained upon a showing that there existed probable cause to arrest the person.” The defendant is not entitled to present evidence or cross-examine witnesses in connection with the court’s decision on a motion by the Commonwealth for a continuance, but instead is limited to making representations and argument. 120 Fifth, at the hearing, the defendant has the right to counsel and “shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing and to present information. The rules concerning admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing.”

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Sixth, if after the hearing the court determines, “by clear and convincing evidence,” that “no conditions of release will reasonably assure the safety of any other person or the community said justice shall order the detention of the person prior to trial.” If detention of the defendant is ordered, “the judge shall (a) include written findings of fact and a written statement of the reasons for the detention. . . .” The defendant “may be detained pending completion of the hearing.” The ninety-day period of detention is exclusive of any delay attributable to the defendant. If an order of conditional release or detention is made under Section 58A by a judge of the District or BMC departments and it is followed by a superseding indictment, the Section 58A order does not automatically carry over to the Superior Court. Instead, there must be a new hearing. 121 Seventh, in determining whether there are conditions of release (instead of detention) “that will reasonably assure the safety of any other individual or the community,” the court “shall on the basis of any information which he can reasonably obtain,” consider the factors that are set forth in G.L. c. 276, § 58 and that guide ordinary bail decisions. Eighth, if personal recognizance will not assure the defendant’s appearance or will endanger the safety of anyone, the court is authorized to order pretrial release conditioned on observance of all laws and “the least restrictive further condition, or combination of conditions” that will ensure the defendant’s appearance and individual safety. The statute lists fourteen specific conditions, including conditions relating to employment, education, avoiding contact with named individuals, reporting, curfews, restrictions on the use of alcohol or drugs, mandatory treatment, and cash bail that may be imposed as part of an order of conditional release in lieu of personal recognizance. Condition fourteen is open-ended—”satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community.” 122 Ninth, the court which makes an order under Section 58A has continuing jurisdiction over the defendant: “The judicial officer may at any time amend the order to impose additional or different conditions of release.” Tenth, when the Superior Court is asked to review a Section 58A order entered by a judge of the District, BMC, or Juvenile Court departments, the hearing should take place “within five business days of the filing of the petition.” The hearing before the Superior Court may be based on “the record below which the Commonwealth and the person may supplement.” The Superior Court judge in such cases has all the options available to the judge who heard the petition in the first instance, i.e., release on personal recognizance, cash bail, conditional release, or detention. “Thus, the Commonwealth may, if it chooses, submit the transcript and record of the District Court proceedings without supplementation, 1–16

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and the Superior Court judge may consider these materials and give them whatever weight that judge deems appropriate. The defendant has the right to present new information. The Superior Court judge has the discretion to take testimony and so long as he makes his own independent determination of the facts based on the record as presented to him, the hearing requirement is satisfied.” 123

§ 1.5.8 (a)

Incompetent Defendant or Juvenile Regular Bail Hearing

The due process clause requires the court to consider several factors in determining whether it may proceed with a pretrial hearing relating to bail or preventative detention when the defendant or juvenile is incompetent—the interest of the private party and the Commonwealth in the outcome of the proceeding, and the risk of a loss of liberty resulting from that due to the defendant’s or juvenile’s incompetency. 124 In view of the fact that at most bail proceedings, the evidence is “undisputed, a matter of public record, or readily explained,“ the SJC concluded that the risk of factual error arising from a defendant’s inability fully to assist his counsel is low, and thus determined that it is not a per se violation of an incompetent defendant’s due process rights to conduct a bail hearing. 125 However, the SJC recognized that “each case may require some assessment by the hearing judge of whether the defendant’s mental condition prevents any meaningful communication with counsel, such that the court will be unable to obtain the information necessary to set a proper bail.” 126

(b)

Dangerousness Hearings

Although there is a risk of a loss of liberty when an incompetent defendant or juvenile participates in a regular bail hearing, the individual’s interest is greater in the outcome of a dangerousness hearing. “A judge’s finding at a bail hearing that substantial bail is reasonably necessary to assure the defendant’s or juvenile’s appearance at trial may result in his pretrial detention if he is unable to obtain the funds to make bail, but a judge’s finding at a dangerousness hearing that ‘no conditions of release will reasonably assure the safety of any other person or the community’ requires his pretrial detention. Compare G.L. c. 276, § 58, with G.L. c. 276, § 58A(3).” 127 However, in balancing the competing interests in and risks associated with a dangerousness hearing, the SJC concluded that due process does not prohibit conducting a dangerousness hearing when the defendant or juvenile is incompetent. 128 The SJC reasoned that the risk of factual error in such proceedings does not violate due process because the burden of proof is by “clear and convincing evidence,” and the rights afforded the defendant (“to the assistance of counsel, to present evidence and witnesses, and to 2012 Edition

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cross-examine adverse witnesses”), “allow him to defend adequately against the allegations of dangerousness and to diminish the risk of factual mistake.” 129 “While an incompetent defendant or juvenile cannot exercise these rights himself, his attorney may exercise them on his behalf.” 130 Ultimately, whether a dangerousness hearing can be conducted in the case of an incompetent defendant or juvenile without violating due process will depend on the degree of impairment. 131

§ 1.6

RIGHTS OF FOREIGN NATIONALS UNDER THE VIENNA CONVENTION

“The Vienna Convention [On Consular Affairs] [Convention] was ratified by the United States in 1969. Once ratified, the Vienna Convention became the ‘supreme Law of the Land’ and binding on the States of the United States. U.S. Const. art. VI, cl. 2. The United States also signed the Optional Protocol to the Vienna Convention Concerning the Compulsory Settlement of Disputes, 132 which established that the International Court of Justice (ICJ) would have jurisdiction over disputes regarding compliance by the signatory States with the provisions of the Vienna Convention, and made its decisions binding on the parties before it.” 133 Article 36 of the Convention sets out the procedure to be followed when a foreign national is arrested or detained. 134 “It provides in pertinent part that a foreign national shall be notified ‘without delay’ of ‘his rights,’ including his right to have authorities of the detaining State notify his consulate of his detention. 135 Once requested to do so, such authorities shall inform the detainee’s consulate of his detention ‘without delay.’” 136 Thereafter, consular officers shall be free to communicate with and have access to the detainee and to arrange for his legal representation. Art. 36(1)(c). It also sets forth the doctrine of consular immunity: “[C]onsular officers who are nationals of or permanently resident in the receiving State shall enjoy only immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their functions.” 137 In Commonwealth v. Gautreaux, 138 the defendant, a twenty-eight year old citizen of the Dominican Republic whose primary language was Spanish, was on probation when he was charged with new offenses. The defendant received an order of deportation from the United States Department of Homeland Security. The defendant filed a motion pursuant to Mass. R. Crim. P. 30(b) to vacate his guilty plea and for a new trial. The defendant maintained (and the Commonwealth did not dispute), that at no time following his three arrests in 2003 was he notified of his right to have the consulate of the Dominican Republic notified of his arrest in 1–18

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accordance with Article 36 of the Vienna Convention on Consular Relations. The defendant’s claim was that he did not have an interpreter present at his change of plea hearing in 2003, that he did not understand the waivers of rights, but that he answered the judge’s questions about his rights and pled guilty because his attorney assured him it would enable him to avoid deportation. However, he made no specific claim of prejudice relating to the deprivation of his rights under the Vienna Convention. In Gautreaux, the SJC explained the background of Article 36 of the Vienna Convention and the obligation of the detaining State [to] notify his [arrestee’s] consulate of his detention. Once requested to do so, such authorities shall inform the detainee’s consulate of his detention without delay. Thereafter, consular officers shall be free to communicate with and have access to the detainee and to arrange for his legal representation. The Vienna Convention further provides that the rights and obligations it contains shall be exercised in conformity with the laws and regulations of the receiving State, and that these laws and regulations must enable full effect to be given to the intended purposes of art. 36. In order to enable the full effect to be given to art. 36, we conclude that the notifications it requires must be incorporated into the protocols of the State and local law enforcement agencies of Massachusetts. 139 The U.S. Department of Justice has approved uniform procedures that are followed by federal law enforcement officials in accordance with Article 36 whenever a foreign national is arrested. (1) In every case in which a foreign national is arrested the arresting officer shall inform the foreign national that his consul will be advised of his arrest unless he does not wish such notification to be given. If the foreign national does not wish to have his consul notified, the arresting officer shall also inform him that in the event there is a treaty in force between the United States and his country which requires such notification, his consul must be notified regardless of his wishes and, if such is the case, he will be advised of such notification by the U.S. Attorney.

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(2) In all cases (including those where the foreign national has stated that he does not wish his consul to be notified) the local office of the Federal Bureau of Investigation or the local Marshal’s office, as the case may be, shall inform the nearest U.S. Attorney of the arrest and of the arrested person’s wishes regarding consular notification. (3) The U.S. Attorney shall then notify the appropriate consul except where he has been informed that the foreign national does not desire such notification to be made. However, if there is a treaty provision in effect which requires notification of consul, without reference to a demand or request of the arrested national, the consul shall be notified even if the arrested person has asked that he not be notified. In such case, the U.S. Attorney shall advise the foreign national that his consul has been notified and inform him that notification was necessary because of the treaty obligation. 140 Although the U.S. Supreme Court has not resolved the question whether the Vienna Convention confers individual rights to consular assistance, the majority view among the courts that have considered the question is that it does not. 141 Nonetheless, “it is unquestioned that an enforceable right exists for signatory States.” 142 The SJC explained that by raising the claim for the first time in a postconviction proceeding, the defendant bore the burden of establishing a substantial risk of a miscarriage of justice. 143 The court noted that [i]n support of his claim, the defendant asserts that had he ‘known of his right to consular notification and assistance he would have sought that assistance and presumably, at least, have been advised of the necessity of taking great care in seeking to understand his attorney, the proceedings against him and ways in which he might accomplish this (i.e. his right to an interpreter, etc.).’ He has, however, produced no evidence of the practices and protocols of the Dominican Republic Consulate (consulate), or of the advice and assistance it would have provided on notification of the detention of one of its citizens. An assumption with respect to such matters is not evidence, and is woefully insufficient to demonstrate that the outcome 1–20

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of the defendant’s case—his pleading guilty to a significantly reduced set of charges with no sentence of incarceration—likely would have been different, had he been informed of his right to have his consulate so notified. Even if we assume that the consulate would have (on such notice) provided the defendant some assistance in defending his case, the principal type of assistance envisioned by the Vienna Convention was afforded to him by virtue of the laws of the Commonwealth and the United States applicable to all persons charged with crimes. Consular officials, it is postulated, will likely have better knowledge of the detaining country’s legal system and can therefore help the citizen navigate the law principally through assisting the detainee in retaining counsel. Foreign nationals arrested and detained in the United States are provided with the same constitutional protections as United States citizens, including, in the defendant’s circumstances, the right to the prompt appointment of an attorney to represent him throughout the proceedings. See Sanchez-Llamas v. Oregon, 548 U.S. 331, 350 (2006) (noting constitutional and statutory requirements safeguard interests served by art. 36, including right to an attorney and right against self-incrimination). That was done in this case. Indeed, the defendant met with his counsel on several occasions, and with his assistance negotiated a most favorable plea agreement. 144 Furthermore, the SJC observed that insofar as the defendant’s claim is based on the ineffectiveness of his counsel, “[t]hat remedy—a new trial based on the ineffectiveness of counsel—is also appropriately sought in a Rule 30(b) motion.” 145 Thus, in Gautreaux, although the SJC reasoned that the notifications required by art. 36 of the Vienna Convention on Consular Relations must be provided to foreign nationals on their arrest, including the requirement that authorities of the detaining state notify the foreign national’s consulate of his or her detention, 146 in any case involving a challenge to a conviction due to the failure of the police to comply with the treaty, the foreign national bears the burden of establishing that the failure to comply with Article 36 gave rise to a substantial risk of a miscarriage of justice. 147

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§ 1.7

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§ 1.7

THE BOOKING PROCESS

§ 1.7.1

General Rule

Following an arrest, the police have the right to take a reasonable amount of time to process the arrested person and to collect basic biographical information before the individual is either released on personal recognizance or bail, or held for court. 148 Usually this is accomplished by bringing the arrested person in custody to a police station or state police barracks for “booking.” The police are not required to administer Miranda warnings prior to routine booking questions. 149 Such questions are within an exception to Miranda which allows the police to obtain from the defendant biographical data necessary to complete booking or pretrial services. 150 This exception does not apply to questions designed to elicit an incriminating response. 151 Routine booking questions can be asked even after a person asserts his right to remain silent or his right to counsel as long as they do not relate to the crime under investigation. 152 The police are required to fingerprint and may photograph persons under arrest and charged with a felony level offense, i.e., a crime punishable by imprisonment in state prison, “according to the system of the bureau of investigation and intelligence in the department of state police . . . .” 153 This obligation extends to juveniles who if adults would be charged with a felony grade offense. 154 The defendant’s silence during the booking procedure cannot be admitted and used as evidence against him at trial. 155 “A defendant’s refusal to answer a booking question may be nothing more than an attempt to invoke a Miranda right, even where Miranda v. Arizona, 384 U.S. 436, 475-76 (1966), would not technically exclude an answer.” 156 However, statements made by the defendant during the booking process are available for use by the Commonwealth. 157

§ 1.7.2

Juveniles

When the police arrest a juvenile, i.e., a person under the age of seventeen years, they have a special statutory responsibility to contact the juvenile’s parents or guardians “immediately.” General Laws c. 119, § 67 provides, in part, as follows: [W]henever a child between seven and seventeen years of age is arrested with or without a warrant, as provided by law, the officer in charge of the police station . . . to which the child has been taken shall immediately notify . . . at least one of the child’s parents, or, if there is no parent, the guardian or person 1–22

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with whom it is stated that such child resides, and shall inquire into the case. In order to comply with this statutory obligation, the police may be required to begin the booking process without the presence of an adult. “It would seem only reasonable that a booking officer, in order to satisfy the statutory responsibilities and in order to complete the administrative booking process, would have to ask a juvenile who had been arrested and taken into custody, where he or she lived.” 158 As discussed in more detail in Chapter 2, Massachusetts follows a common law “interested adult” rule whereby the Commonwealth must demonstrate, in most cases, that a parent or other interested adult was present, understood the Miranda warnings, and had the opportunity to explain them to the juvenile before custodial interrogation in order to establish a knowing, voluntary, and intelligent waiver of the juvenile’s rights. 159

§ 1.8

THE RIGHT TO PROMPT PRESENTMENT TO THE COURT

§ 1.8.1

General Rule

Once an arrest has been completed, the arresting officer or agency has a duty to bring the arrested person before the court as soon as reasonably possible. 160 This common law duty is embodied in Mass. R. Crim. P. 7(a)(1), which provides as follows: Upon the arrest of a juvenile, the arresting officer shall notify the parent or guardian of the juvenile and the probation office. A defendant who has been arrested shall be brought before a court if then in session, and if not, at its next session. At that time the defendant shall be interviewed by the probation department; the probation department shall make a report to the court of the pertinent information reasonably necessary to determination of the issues of bail and indigency. If the judge or special magistrate finds that the defendant is indigent or indigent but able to contribute and has not knowingly waived the right to counsel under the procedures established in Supreme Judicial Court Rule 3:10, the Committee for Public Counsel Services shall be assigned to provide representation 2012 Edition

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for the defendant. The judge or special magistrate shall then arraign the defendant or shall set a time for arraignment. The judge or special magistrate shall determine the conditions of the defendant’s release, if any. “This requirement [of prompt presentment] is primarily intended to prevent both unlawful detentions and unlawfully obtained statements.” 161 The SJC has held that when a person is arrested at 4:00 p.m. and not brought to court for arraignment until the following mo rning at 11:30 a.m. there is no violation of the prompt presentment requirement. 162

§ 1.8.2

“Safe Harbor” Rule

In Commonwealth v. Rosario, 422 Mass. 48 (1996), the SJC reviewed the case law dealing with delays in the defendant’s right to prompt presentment to the court following arrest. The court expressed concern over a practice followed by the police in which arrested persons who had been booked were not taken to the court even when court was open and in session until after the police had an opportunity to interrogate the defendant without the assistance of counsel. 163 This led the SJC to abandon the earlier standard it had followed whereby the reasonableness of any delay in the arraignment would be determined on a case by case basis. “[T]rial court judges have different views on the reasonableness of a delay in arraignment knowingly undertaken in order to question a defendant. The reasonableness standard involves a measure of uncertainty and the likelihood of uneven application in practice.” 164 After considering the law from other jurisdictions, 165 especially the rule in the federal system known as the McNabb-Mallory rule, 166 the SJC established a bright-line rule that provides that if the police take a statement from the defendant within six hours of the arrest that is otherwise admissible, i.e., it was taken after a valid waiver of Miranda rights and is voluntary, it will not be excluded on grounds that the defendant was not brought to court as soon as possible as required by Mass. R. Crim. P. 7(a)(1) even if the court was in session at the time the statement was taken. 167 In particular, the rule adopted by the SJC provides as follows: An otherwise admissible statement is not to be excluded on the ground of unreasonable delay in arraignment, if the statement is made within six hours of the arrest (day or night), or if (at any time) the defendant made an informed and voluntary written or

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recorded waiver of his right to be arraigned without unreasonable delay. This rule will (a) largely eliminate debate over the reasonableness of any delay, (b) bar admission of a statement made after the six-hour period unless there is a waiver of prompt arraignment, and (c) apply without regard to when either the court is in session or the arrest made. We will depend on the requirements of Miranda warnings, voluntariness, and the requirements of G.L. c. 276, 33A, to protect against unfair or coercive questioning during the six hours after arrest. The sixhour period itself will place an outside limit on any incentive to question an unwilling arrestee. If, when arrested, the person is incapacitated because of a selfinduced disability, such as by the consumption of drugs, the six-hour period should commence only when the disability terminates. Commonwealth v. Rosario, 422 Mass. 48 (1996). 168 Thus, under the Rosario rule, even voluntary confessions are inadmissible if obtained after the six-hour period unless the defendant waives his right to prompt presentment or there are reasons for the delay beyond the control of the police. Correspondingly, a voluntary confession is not rendered inadmissible simply because a court was open at the time the police interrogated the defendant. 169 The rule is not triggered until the defendant is arrested even though he or she is at the police station undergoing questioning for a period of time before his or her arrest. 170

§ 1.8.3

What Triggers the “Safe Harbor” Rule

The six-hour safe harbor rule does not apply until a defendant is arrested. 171 “An arrest occurs where there is “[1] ‘an actual or constructive seizure or detention of the person [2] performed with the intention to effect an arrest and [3] so understood by the person detained.’” 172 “[T]he initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” 173 Thus, the safe harbor period does not commence when the defendant is in the police station for more than six hours answering police questions and is told he or she was free to leave, but volunteers to continue answering questions. 174 2012 Edition

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The safe harbor rule applies “only to persons arrested in Massachusetts who could be arraigned in Massachusetts; it was not intended to apply to persons arrested in other States on warrants issued in Massachusetts, whose arraignment would need to await their rendition to Massachusetts.” 175

§ 1.8.4

Tolling the Running of the “Safe Harbor” Rule

In Commonwealth v. Rosario, the SJC acknowledged that in exceptional circumstances the time within which questioning must occur (unless the defendant waives the safe harbor rule) may be tolled. “[I]f for reasons not attributable to the police, such as a natural disaster or emergency, interrogation during the sixhour period is not possible or must be suspended, the six-hour period should be tolled appropriately. It is most important to recognize that, but for the exceptions just noted, the period of safe harbor questioning commences on arrest and concludes six hours later without regard to when court is in session.” 176 One illustration of exceptional circumstances that tolled the safe harbor rule was the arrest of a person late on a Friday night following an overseas flight in which the police allowed the defendant to sleep and delayed the interrogation until the following morning. 177

§ 1.8.5

Waiver of the “Safe Harbor” Rule

The defendant may make a knowing, intelligent, and voluntary waiver of the safe harbor rule. 178 A waiver of the safe harbor rule is separate and distinct from a waiver of Miranda, and a waiver of Miranda does not necessarily lead to the conclusion that the defendant waived his or her “safe harbor” rights. 179 In subsequent cases, courts have acknowledged the validity of waivers of the defendant’s safe harbor rights. 180 However, just as with Miranda warnings, police must inform suspects of the safe harbor rights “in a language, and in a manner, an unlettered and unlearned defendant can understand.” 181

§ 1.9

THE RIGHT TO USE THE TELEPHONE

General Laws c. 276, § 33A provides as follows: The police official in charge of the station or other place of detention having a telephone wherein a person is held in custody, shall permit the use of the telephone, at the expense of the arrested person, for the 1–26

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purpose of allowing the arrested person to communicate with his family or friends, or to arrange for release on bail, or to engage the services of an attorney. Any such person shall be informed forthwith upon his arrival at such station or place of detention, of his right to so use the telephone, and such use shall be permitted within one hour thereafter. The statutory right to use the telephone arises when an individual has been “formally arrested.” 182 Thus, even though a person is at the police station for an interview and in custody for purposes of the Miranda doctrine, but not under arrest, Section 33A does not require the police to inform the person of the right to use a telephone until a formal arrest occurs. 183 “There is no requirement that a defendant be permitted a private telephone call, and a defendant does not have an expectation of privacy in making such a telephone call.” 184 Thus, the police who are responsible for the defendant safety and security while under arrest in their custody, have the right to require the defendant to use a police line or phone and to record the number dialed by the defendant, 185 and to require the defendant to exercise his or her right to use the telephone in their presence. 186 When the evidence indicates that law enforcement officers intentionally withheld the telephone right in violation of Section 33A, the appropriate remedy is suppression of any evidence obtained as a result of the violation. 187 The defendant bears the burden of establishing an intentional violation of the statute. 188 An intentional violation of G.L. c. 276, § 33A does not require the dismissal of the criminal charges. 189

§ 1.10

THE RIGHT TO AN INDEPENDENT MEDICAL EXAMINATION

A person who is held in custody at a police station or other place of detention and charged with operating a motor vehicle while under the influence of alcohol, has a statutory right “at his [or her] request and at his [or her] expense to be examined immediately by a physician selected by him [or her]. The police official in charge of such station or place of detention, or his [or her] designee, shall inform him [or her] of such right immediately upon being booked . . . .” 190 The law also requires the police to either give the person a copy of the law unless it is posted in a conspicuous place where the person in custody has access. The statutory right is satisfied by notice to the person in custody. “[O]nce the police have 2012 Edition

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fulfilled their duty to inform a defendant of his right under § 5A, they have no obligation to help him in exercising that right.” 191 In particular, the SJC has held that the police are “not, for example, required to transport him to the hospital for administration of a blood alcohol test or to arrange for a physician to travel to the police station.” 192 However, the law does require the police “to afford the defendant a ‘reasonable opportunity’ to exercise his right to an independent medical examination,” and forbids the police “from impeding his exercise of that right.” 193 This does not mean that once the defendant has been booked, released on personal recognizance, or admitted to bail, he or she has the unfettered right to walk out the door. “[N]othing in § 5A requires the police to give [the defendant] the keys to his vehicle and allow him to drive off if he is not in a fit condition to do so.” 194 In Commonwealth v. King, 195 the SJC recognized the “intersection” between the right to a prompt bail hearing 196 and the right to an independent medical examination because unless a person who has been arrested and is in police custody is able to secure a prompt bail hearing, he or she will not be able to travel to a hospital or medical facility to obtain an independent medical exam (usually consisting of a blood test) in a timely manner. 197 In the King case, the record established that the clerk assigned to conduct out of court bail hearings was following a policy in which he or she refused to hold a bail hearing for certain defendants promptly on being notified of the defendant’s arrest. He declined to come to the barracks to conduct a bail hearing according to a “policy” of his own, pursuant to which he asked the police whether a detainee had submitted to a breathalyzer test and, if not, what was the officer’s opinion of the detainee’s state of intoxication. He would then instruct the police to hold until morning those detainees who had refused to take the breathalyzer test. In an affidavit submitted by the clerk-magistrate to the motion judge, he stated that his reasons for ordering such detainees to be held until morning were the “safety of the public as well as . . . avoid[ance of] personal liability for actions of the defendant post-release.” 198 The SJC found this policy was unlawful. The court explained that the bail law, G.L. c. 276, § 58, does not allow judges, clerks, or bail commissioners to use public safety concerns as a proxy for the determination of whether to admit the defendant to bail. “Rather, the only permissible consideration is whether the defendant is reasonably likely to reappear before the court.” 199 The court also

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held that the defendant’s intoxication at the time the clerk is notified is not a valid reason to refuse to conduct a bail hearing. Nor can the clerk-magistrate’s actions be justified on the basis of Rule 28 of the Rules Governing Persons Authorized to Take Bail (1998), which requires that persons admitted to bail understand the nature of bail and any conditions of release. Where an individual is so intoxicated that he cannot be expected to understand the nature of the bail proceedings, intoxication is a “justifiable basis for extending the reasonable time delay” before which the bail hearing must be held. There has been no allegation in this case that the clerk-magistrate’s delay in conducting the bail hearing was based on his belief that the defendant could not understand the proceedings, and the evidence does not suggest that the defendant was unable to do so. 200 Based on the violation of the defendant’s right to a prompt bail hearing, the SJC reasoned that although the police had not violated the defendant’s rights, those rights, as provided for in G.L. c. 263, § 5A, were nonetheless violated. In order to assist police officers and clerks in carrying out their responsibilities in the future, the court offered these guidelines: For the right to an independent examination to mean anything, it must include the opportunity to have the examination conducted as promptly as possible. The opportunity to collect potentially exculpatory medical evidence is destroyed if the defendant is made to wait seven hours before obtaining it. Therefore, because a defendant ordinarily must be released on bail before he is able to obtain an independent medical examination, the bail hearing must be conducted promptly if § 5A is to have any force. . . . [F]or G.L. c. 263, § 5A, to have its intended force and effect, it must be read as requiring the police to telephone a bail commissioner in order to facilitate a defendant’s release in a timely fashion. This requirement, addressed specifically to police conduct, would mean nothing if it were not assumed that the bail commissioner would then hold a bail hearing and release the defendant in a timely fashion.

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§ 1.10

POLICE INTERROGATIONS AND CONFESSIONS

In a case in which the defendant has asserted his § 5A right, it will not do to define timeliness by the sixhour guideline for promptness applicable to bail hearings in general. Because of the fleeting nature of the evidence that might be obtained as a result of the medical examination, the bail hearing in such a case must be held as promptly as possible. Therefore, when the bail commissioner is notified that an individual has been arrested and wishes to exercise his right to an independent medical examination under § 5A, the bail commissioner must respond as promptly as he is able. The clerk-magistrate’s delay of more than seven hours in this case does not meet this standard of timeliness. In cases where the defendant has not asserted his § 5A right, the general rule of promptness, loosely delimited by the six-hour guideline, still holds. Therefore, to ensure that the clerk-magistrate responds as promptly as possible, it is crucial that he be aware when a defendant has asserted the § 5A right. When it is the police who notify the clerk-magistrate that an individual who has asserted the right has been arrested, the police must also inform the magistrate that the defendant wishes to exercise the right. The police may, of course, leave it to the defendant to call the clerk-magistrate after informing the defendant of this possibility and permitting him to use the telephone. In that case, it will be up to the defendant to tell the clerk-magistrate that he wishes to exercise his § 5A right. In the instant case, where the trooper called the clerk-magistrate, he should have informed him that the defendant had expressed a desire to obtain an independent medical examination. If the arrested person expresses a desire for an independent medical examination after an officer has called the bail commissioner, he must call again or allow the arrested person to do so. To avoid this complication, it would be better to make the § 5A statement before the clerk-magistrate is called. 201 In fashioning a remedy, the court followed an empirical approach as it so often has in other contexts. “Where a defendant’s right under § 5A has been violated, 1–30

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the violation itself is prima facie evidence that the defendant has been prejudiced in that his opportunity to obtain and present potentially exculpatory evidence has been restricted or destroyed. This presumption of prejudice, however, may be overcome by overwhelming evidence of intoxication, 202 as discussed above, or by other evidence indicating that the omission was not prejudicial in the circumstances.” 203 There is at least one trial court decision which addresses the intersection between the defendant’s statutory right to an independent medical examination and the discretion enjoyed by the police to hold a severely intoxicated person in protective custody pursuant to G.L. c. 111B, § 8, and which concludes that a person’s right to an independent examination is not violated if the person is held in protective custody. 204 This statutory right is not applicable in cases involving operation of a motor vehicle while under the influence of drugs or in other cases involving operation of a motor vehicle while under the influence of alcohol. 205

NOTES 1

2 3

4

See generally George C. Thomas III and Richard A. Leo, Confessions of Guilt (Oxford Univ. Press 2012) (hereafter “Confessions of Guilt”); Leonard W. Levy, Origins of the Fifth Amendment (1968); Lawrence Herman, “The Unexplored Relationship Between The Privilege Against Self-Incrimination and the Involuntary Confession Rule (Part One),” 53 Ohio St. L.J. 101 (1992); Laurence A. Benner, “Requiem for Miranda: The Rhenquist Court’s Voluntariness Doctrine in Historical Perspective,” 67 Wash. U. L.Q. 59 (1989). 384 U.S. 436 (1966). Commonwealth v. Ewing, 67 Mass. App. Ct. 531, 544 (2006), citing Commonwealth v. Kenney, 12 Met. 235, 237–38 (1847). Commonwealth v. Nickerson, 386 Mass. 54, 59 n.5 (1982) (court holds that even though federal law permits a defendant to be impeached by his prearrest silence, in the circumstances of this case under the Massachusetts common law of evidence the judge erred in instructing the jury that they could consider that the defendant did not come forward to identify the person who at trial he said did the stabbing because it improperly suggested the defendant had a duty to speak). See also Commonwealth v. Cob, 374 Mass. 514, 521 (1978) (If it is fundamentally unfair and a deprivation of due process to allow an arrested person’s silence to be used to impeach an explanation subsequently offered at trial, id. at 618, then, a fortiori, it is a violation of due process to allow

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7 8 9

10

11 12

13 14 15

16

17

18

19

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such silence, or the invocation of the right to remain silent, to be used as evidence of guilt.). See Attorney General v. Colleton, 387 Mass. 790, 796 n.6 (1982). See Commonwealth v. Conkey, 430 Mass. 139, 142 (1999), citing Opinion of the Justices, 412 Mass. 1201, 1211, under the Fifth Amendment. See South Dakota v. Neville, 459 U.S. 553, 563–64 (1983). This topic is covered in detail in Chapter 2. Oregon v. Mathiason, 429 U.S. 492, 495 (1977). See Miranda v. Arizona, 384 U.S. 436, 478 (1966); Commonwealth v. Becla, 74 Mass. App. Ct. 142, 145 (2009). Miranda, supra, 384 U.S. at 444, quoted by Commonwealth v. Clarke, 461 Mass. 336, 342 n.4. (2012). Commonwealth v. Hoyt, 461 Mass. 143, 152 (2011) (citations omitted). Connecticut v. Barrett, 479 U.S. 523, 528 (1987), quoting Miranda, 384 U.S. at 469. See Commonwealth v. Sneed, 440 Mass. 216, 220–22 (2003). See Commonwealth v. Murphy, 442 Mass. 485, 492–93 (2004). See Oregon v. Mathiason, 429 U.S. at 495; Commonwealth v. Larkin, 429 Mass. 426, 432–33 (1999). Berkemer v. McCarty, 468 U.S. 420, 440 (1984); Commonwealth v. Ka, 70 Mass. App. Ct. 137, 140 (2007) (including the question whether the driver was drinking). See Vanhouton v. Commonwealth, 424 Mass. 327, 331 (1997) (rescript); Commonwealth v. Cameron, 44 Mass. App. Ct. 912, 914 (1998). See Commonwealth v. DePeiza, 449 Mass. 367, 375–76 (2007); Commonwealth v. Gordon, 47 Mass. App. Ct. 825, 827 (1999). See also Commonwealth v. Ira I., 439 Mass. 805 (2003) (assistant school principal was not acting as an agent of the police at the time he questioned a student and was not therefore required to administer Miranda warnings). See Commonwealth v. Snyder, 413 Mass. 521, 530–31 (1992); Commonwealth v. Miller, 68 Mass. App. Ct. 835, 844 (2007). See also Commonwealth v. Snyder, 413 Mass. at 532 n.9 (“Perhaps as a matter of policy, however, where incriminating contraband has already been seized and where, pursuant to established practice, the evidence is to be turned over to the police, a school official about to question a student should warn that any statement the student makes could be used as evidence against the student.”). See Smith v. Illinois, 469 U.S. 91, 98 (1984) (“Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together.”). See also United States v. Christian, 571 F.2d 64, 68 (1st Cir. 1978);

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25 26

27 28 29

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Commonwealth v. Lopes, 455 Mass. 147, 166–67 (2009); Commonwealth v. Dustin, 373 Mass. 612, 615 (1977), cert. denied, 435 U.S. 943 (1978). Commonwealth v. Clarke, 461 Mass. 336, 342 (2012), quoting Smith v. Illinois, 469 U.S. 91, 98 (1984). It is an open question whether the distinction remains after Berghuis v. Thompkins, 130 S. Ct. 2250 (2010). One view of Berghuis is that a person who hears the Miranda warnings is presumed to understand them and any subsequent answers to police questions are the product of a valid waiver unless the individual makes it unmistakably clear that he wishes to remain silent or to have access to an attorney. See George C. Thomas III and Richard A. Leo, Confessions of Guilt, 180–81 (Oxford Univ. Press 2012). Miranda, 384 U.S. at 476, 478–79. See Commonwealth v. Hoyt, 461 Mass. 143, 153 (2011), quoting Commonwealth v. Edwards, 420 Mass. 666, 670 (1995). Commonwealth v. Hoyt, supra, 461 Mass. at 153, quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979) (emphasis added). See Miranda, 386 U.S. at 475, 476. “The warnings guarantee that the accused knows what his rights are. But Miranda requires the interrogating officer to go further and make sure that the accused, knowing his rights, voluntarily relinquishes them.” United States v. Christian, 571 F.2d 64, 68 (1st Cir. 1978). Commonwealth v. Hilton, 443 Mass. 597, 605 (2005) (quotation omitted). Commonwealth v. Siny Van Tran, 460 Mass. 535, 559 (2011) (citation and quotation omitted). Miranda, 384 U.S. at 475. See Commonwealth v. Hoyt, 461 Mass. 143, 152 (2011). See United States v. Porter, 764 F.2d 1, 7 (1st Cir.1985), rehearing denied, 776 F.2d 370 (1st Cir. 1985), cert. denied, 481 U.S. 1048 (1987), cited with approval in Commonwealth v. DiMuro, 28 Mass. App. Ct. 223, 227 (1990) (Miranda requires the officer to go further than just asking accused if he understand his rights; the officer must make sure that the accused, knowing his rights, voluntarily relinquishes them). See Commonwealth v. Magee, 423 Mass. 381, 387 n.8 (1996). Under Massachusetts law, ambiguity about whether a person wishes to waive his or her rights and speak to the police or not, at the outset of a custodial interrogation, is incompatible with a valid waiver of Miranda rights. See Commonwealth v. Clarke, supra, 461 Mass. at 351.Massachusetts law and federal law are in agreement that once a person in police custody has knowingly and voluntarily waived his or her Miranda rights, the police may continue to question the individual until the person clearly requests an attorney. See

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37 38 39 40

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Commonwealth v. Santos, 463 Mass. 273, __ (2012), quoting Davis v. United States, 512 U.S. 452, 461 (1994). Commonwealth v. Clarke, supra, 461 Mass. at 343, quoting Michigan v. Mosley, 423 U.S. 96, 104 (1975). See Commonwealth v. Brant, 380 Mass. 876, 882, cert. denied, 449 U.S. 1004 (1980). Commonwealth v. Clarke, supra, 461 Mass. at 343, quoting Commonwealth v. Bradshaw, 385 Mass. 244, 265 (1982). Commonwealth v. Clarke, 461 Mass. at 343, citing Harris v. New York, 401 U.S. 222, 224–26 (1971). See also Commonwealth v. Woodbine, 461 Mass. 720, 729–30 (2012) (police scrupulously honored defendant’s rights when after he asked the interview to end the police waited seventeen hours before advising the defendant of his Miranda rights again and resuming the interview). See Berghius v. Thompkins, 130 S. Ct. 2250, 2260, 2263 (2010). Clarke, 461 Mass. at 337. “We have never placed a ‘burden of clarity’ on individuals in such circumstances, and we decline to do so today. Our holding is not a departure from our prior jurisprudence and, unlike the Court in Thompkins, does not establish a new standard for prewaiver invocations of the right to silence. Instead, we continue to adhere to the standard set forth in Mosley: The suspect’s right to cut off questioning must be scrupulously honored. . . . As always, to avoid the difficulties inherent in the application of a fact-specific standard, ‘[i]f a suspect makes an ambiguous statement or engages in conduct that creates uncertainty about his intent to invoke his right, police can simply ask for clarification.’ Thomkins (Sotomayor, J., dissenting).” Clarke, 461 Mass. at 351 (quotations omitted). Clarke, 461 Mass. at 467–68. See Commonwealth v. Edwards, 420 Mass. 666, 671 (1995). See Commonwealth v. Hosey, 368 Mass. 571, 578 (1975). Commonwealth v. Hoyt, 461 Mass. 143, 149 (2011), citing Edwards v. Arizona, 451 U.S. 477, 484–485 (1981). Commonwealth v. Hoyt, 461 Mass. 143 (2011). Hoyt, supra, 461 Mass. at 150, quoting Davis v. United States, 512 U.S. 452, 461 (1994). Hoyt, supra, 461 Mass. at 150, quoting Davis v. United States, 512 U.S. at 459. Hoyt, supra, 461 Mass. at 151 (“Here, because the officers initiated further questioning of the defendant after his unambiguous invocation of the right to counsel, the defendant’s subsequent statements must be suppressed.”). The rest of the interview was as follows: Eason: “Okay. If you want to speak to us later, that’s fine as well. I mean but we’re not, you know, we don’t get you an attorney, we can let you use a phone book and stuff like that, but it’s up to you.”

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49

50 51 52

53

54 55

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Defendant: “I’ll just talk to you now.” Eason: “Okay.” Strout: “Roy, I just want to make it clear. You want to talk to us now, and you don’t want an attorney? Defendant: “Uh, I’d have to wait here until an attorney came right?” Strout: “You can . . . we can let you use the phone and the phone book to call an attorney. I can’t tell you if they’re gonna come here, I don’t know what they would do.” Defendant: “I’ll just talk to you without an attorney.” Hoyt, supra, 461 Mass. at 151. 462 Mass. 246 (2012). Id. at 249–50. In Baye, the SJC noted that whether the defendant was in police custody at the time of his statements was a close question which it did not have to resolve. Id. at 252–53. Commonwealth v. Clarke, 461 Mass. 336, 346 n.8 (2012), quoting Commonwealth v. Ghee, 414 Mass. 313, 318 n.5 (1993). In Clarke, the SJC added that “[i]n determining whether the art. 12 privilege against self-incrimination is more protective in this regard than that of the Fifth Amendment, ‘we look to the text, history, and our prior interpretations of art. 12, as well as the jurisprudence existing in the Commonwealth before [Thompkins] was decided.’” Id. at 346, quoting Commonwealth v. Mavredakis, 430 Mass. 848, 858 (2000). 461 Mass. 336 (2012). 130 S. Ct. 2250 (2010). Clarke, 461 Mass. at 351 n.12. “Berghuis did more to undermine Miranda’s wide waiver rule than make plain that no express waiver is required.” Confessions of Guilt, supra note 1, at 180. See Commonwealth v. Hoyt, 461 Mass. 43, 149 (2011), citing Commonwealth v. Day, 387 Mass. 915, 920–21 (1983). See Commonwealth v. DiGiambattista, 442 Mass. 423, 424–25 (2004). See Commonwealth v. McNulty, 458 Mass. 305, 317–18 (2010), where the SJC held that, “[w]hile the police are not required to deliver verbatim to a defendant the message given by his attorney, an attorney’s particular message— not to talk to the police—fell within the duty to inform because it bore directly on the right to counsel” (citations and quotations omitted). G.L. c. 263, § 1. However, the Miranda doctrine does not require that a defendant be given the details surrounding the crime he has allegedly committed before he can be deemed to make an intelligent waiver of his rights. “Our cases do not require that a defendant must have information regarding the

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59 60

61

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crime about which he will be questioned or about police suspicions before making a valid waiver of his Miranda rights.” Commonwealth v. Raymond, 424 Mass. 382, 393 (1997) (court found unpersuasive defendant’s argument that he did not make a knowing and intelligent waiver of his rights because the police had not informed him that he was a central suspect of the crime or that [a codefendant] had confessed so that he did not understand the implications of the waiver), citing Commonwealth v. Amazeen, 375 Mass. 73, 78 (1978). Rothgery v. Gillespie County, Tex., 554 U.S. 191, 194 (2008). See Commonwealth v. Beland, 436 Mass. 273, 285–86 (2002); Commonwealth v. Jones, 403 Mass. 279, 286 (1988). Commonwealth v. Stirk, 392 Mass. 909, 913 (1984) See, e.g., Commonwealth v. Mencobini, 28 Mass. App. Ct. 504 (1990), and cases cited. In Mavredakis, the SJC declined to follow the U.S. Supreme Court in Moran v. Burbine, 475 U.S. 412 (1986), which held that the police have no duty to inform a suspect in custody that his or her attorney is trying to contact her. See also Commonwealth v. McKenna, 355 Mass. 313, 324–25 (1969) (defendant’s waiver of rights was invalid where the defendant’s attorney was at the police station and the police failed to advise the defendant of his counsel’s immediate availability). “In essence, a suspect cannot make an informed waiver of his Miranda rights if he is kept ignorant by police of an attorney’s attempts to provide him with assistance and advice. If the waiver is not informed, it is not valid.” Commonwealth v. Collins, 440 Mass. 475, 479 (2003). Commonwealth v. Vao Sok, 435 Mass. 743, 753 (2002). In Commonwealth v. Sherman, 389 Mass. 287, 295–96 (1983), the SJC held that where (1) an attorney represents a defendant as to one charge and learns that the police are planning to interrogate the defendant on a second and unrelated charge as to which the attorney does not represent the defendant; (2) the attorney informs the police of the attorney’s desire to be present at the interrogation of the defendant; (3) the police, nevertheless, within a few hours after the attorney’s request inform the defendant of his Miranda rights but do not inform him of the attorney’s request to be present; and, (4) the police then interrogate the defendant, who makes a statement inculpating himself as to the second and unrelated charge, we conclude that the statement of the defendant must be suppressed because, under principles of construction of Miranda, the failure of

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67 68

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the police to inform the defendant of the attorney’s request vitiated the defendant’s waiver of his Miranda rights. Mavredakis, 430 Mass. at 861, quoting State v. Stoddard, 206 Conn. 157, 169, 537 A.2d 446 (1988). 458 Mass. 305, 316–17 (2010). 458 Mass. at 317, quoting Commonwealth v. Vao Sok, 435 Mass. 743, 752 (2002). See McNulty, supra, 458 Mass. at 317. See Commonwealth v. Vao Sok, 435 Mass. 743, 753 (2002) (it was a violation of the Massachusetts rule for the police officer to contact the prosecutor about the telephone call from defendant’s counsel before informing the defendant). In Commonwealth v. McNulty, 458 Mass. 305 (2002), two justices expressed reservations about the implication of the majority opinion that the police have a constitutional obligation to communicate legal advice from an attorney to a defendant. See id. 458 Mass. at 331 (Cordy, J., concurring); 458 Mass. at 331–32. (Gants, J., dissenting). In his dissenting opinion, Justice Gants, who believes the constitutional obligation of the police extends only to informing the defendant that an attorney is trying to contact him, observed that [t]he duty to inform was meant to be a straightforward “bright-line rule,” Mavredakis, supra at 860, requiring only that the police inform a suspect of an attorney’s availability, but its bright line will be dulled if it includes a duty to inform a suspect of the attorney’s legal advice. Once we open that door, we cannot be assured that the legal advice an attorney will ask to be forwarded will always be as simple as “don’t speak to the police.” It potentially could include advice as to what the client should do or say if he intended to disregard the attorney’s advice to remain silent, or what subjects the client should not discuss. Do the police owe a duty to inform a suspect of all legal advice provided by the attorney? What if the police incorrectly relayed some of that legal advice? We have not before needed to address these questions because of the limited scope of the duty to inform; we will soon need to now that we have expanded that scope to include a duty to communicate legal advice.

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The majority of the court addressed this concern by suggesting that only communications from counsel relating to the defendant’s Miranda warnings must be conveyed to him by the police. 458 Mass. at 316 n.12. See Commonwealth v. McNulty, 458 Mass. 305, 315–16 (2010). Querubin v. Commonwealth, 440 Mass. 108, 113 (2003). See also Commonwealth v. Stuyvesant Ins. Co., 366 Mass. 611, 614 (1975). Accord, Rule 2 of the Rules Governing Persons Authorized to Take Bail (2005). Querubin v. Commonwealth, 440 Mass. 108, 112–13 & 113 n.4 (2003), and cases cited. The amount of bail is not excessive merely because the defendant is unable to post it. Rather, the question is whether the amount of the bail is reasonably necessary to ensure the defendant’s appearance at trial. See Leo v. Commonwealth, 442 Mass. 1025, 1026 (2004) (rescript), and cases cited. See Commonwealth v. Baker, 343 Mass. 162, 168 (1961) (SJC orders rehearing of bail because trial judge failed to make clear whether denial was based on exercise of discretion or belief that there was no discretion to admit the defendant to bail). Accord, Mendonza v. Commonwealth, 423 Mass. 771, 782 n.4 (1996). See generally Querubin v. Commonwealth, 440 Mass. at 112–20. The SJC has considered the question of whether a bail hearing may be conducted when the defendant is not competent. In Commonwealth v. Torres, 441 Mass. 499 (2004), the SJC held that it was not a violation of due process for Superior Court to conduct a bail hearing involving a defendant who had been found incompetent to stand trial. The SJC observed that the Commonwealth has a substantial interest in securing presence of defendant at trial, inquiry at bail hearing was of a limited and fact-specific nature, counsel would be able to ascertain and present information regarding bail factors with little difficulty, and the defendant was able to understand general nature of court proceedings and would take advice of his counsel as a person in a position of authority. If the degree of the defendant’s impairment or limitations renders the defendant unable to assist his counsel at a bail hearing, it may not be possible to proceed with a bail hearing, in which case the Commonwealth would be left with the remedies set forth in G.L. c. 123. Commonwealth v. Puleio, 433 Mass. 39, 40–42 & n.4 (2000). Id. at 42. G.L. c. 276, § 58, para. 1. G.L. c. 276, § 58, para. 3. The standard is probable cause to arrest which may be met by proof of a complaint issued in accordance with court rules or, alternatively, by means of a police report. Commonwealth v. Lester L., 445 Mass. 250, 261 (2005).

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G.L. c. 276, § 58, para. 3, 4. In a case that comes before a Superior Court judge under G.L. c. 276, § 58 for a so-called bail review, the amount of the bail set by the lower court may be replaced by personal recognizance, lowered or increased. 80 Commonwealth v. Finelli, 422 Mass. 860, 863 (1996) (quotation omitted). Sometimes, a juvenile case will come before the court in which a cash bail was imposed but the order reads “mother only,” or “Dept. Children and Families only.” These conditions are not authorized by G.L. c. 276, § 58, and may violate the spirit of the bail law. See R. Ireland, Juvenile Law § 1.22 (44 Mass. Prac. 2006). 81 Querubin v. Commonwealth, 440 Mass. 108, 111 (2004). See also Serna v. Commonwealth, 437 Mass. 1003 (2002) (rescript) (explaining that G.L. c. 276, § 57 applies to cases after indictment or waiver of indictment before the Superior Court while Section 58 applies to cases before the District Court). In Querubin, the SJC observed that Rule 2 of the Rules Governing Persons Authorized to Take Bail (1996) contains a list of the factors that must be considered by a Superior Court judge in deciding whether to admit a person to bail under Section 57: The purpose of setting terms for any pretrial release is to assure the presence at court of the person released. Any person charged with an offense, other than an offense punishable by death [sic], is required by law to be released on his personal recognizance pending trial unless the person setting the terms of release determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required. In making a determination as to what form of release to set, the following factors shall be considered: (1) the nature and circumstances of the offense charged, (2) the accused’s family ties, (3) his financial resources, (4) his length of residence in the community, (5) his character and mental condition, (6) his record of convictions and appearances at court proceedings or of any previous flight to avoid prosecution or (7) any failure to appear at any court proceedings. See Querubin, 440 Mass. at 116 n.6. 82 See Commonwealth v. Torres, 441 Mass. 499, 504 (2004) (listing factors). In Querubin, the SJC reviewed a decision by a Superior Court judge to hold the defendant without bail in a drug trafficking case. At the bail hearing the government argued that “given the strength of the case against him, the seriousness 79

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of the charges, the defendant’s initial flight from his apartment building, his subsequent effort to flee the country, and his lengthy default, the judge could not be reasonably assured that the defendant would appear to face the charge against him if bail were set.” Querubin, 440 Mass. at 538. The SJC upheld the trial judge’s decision to order the defendant held without bail on grounds that Section 57 codified the “inherent authority of a Superior Court judge, under common law, to deny bail where, as here, the defendant poses a serious flight risk.” Id. at 113. See Leo v. Commonwealth, 442 Mass. 1025 (2004) (rescript). (SJC assumes that evidence that the defendant is at risk for suicide is evidence that the defendant is a flight risk). In Querubin, the SJC noted that “[t]he language in G.L. c. 276, § 57, that permits a judge in the Superior Court to consider dangerousness authorizes preventative detention and is a legislative enhancement of the common-law powers of a judge to set bail. The issue of dangerousness, as noted, is not involved in this appeal.” Querubin, 440 Mass. at 113 n.5. It is unclear whether an order of detention based on dangerousness could be made under Section 57 without complying with the requirements of G.L. c. 276, § 58A. See Aime v. Commonwealth, 414 Mass. 667, 682 (1993) (declaring unconstitutional the 1992 amendments to G.L. c. 276, § 58 which created a broad preventive detention scheme that created a significant potential for abuse). The SJC has noted that the revocation of bail under Section 58, para. third is not a substitute for preventative detention under Section 58A. See Paquette v. Commonwealth, 440 Mass. 121, 130 (2003). Querubin, 440 Mass. at 118. Querubin, 440 Mass. at 118. See also Mass. G. Evid. § 1103(c)(3) (2012 ed.). See Querubin, 440 Mass. at 119–20. See Matter of Troy, 364 Mass. 15, 39 (1973). Querubin, 440 Mass. at 120 n.10. Commonwealth v. Dodge, 428 Mass. 860, 865 (1999). Commonwealth v. Dodge, 428 Mass. at 865–66. See also Commonwealth v. Raposo, 453 Mass. 739, 740 (2009) (explaining that G.L. c. 265, § 47, which requires the use of a global positioning system device in certain cases as a condition of probation, does not apply to persons placed on pretrial probation). Accord, Emelio E. v. Commonwealth, 453 Mass. 10–24 (2009) (same in cases involving a juvenile). But see LaVallee v. Justices in the Hampden Superior Court, 442 Mass. 228, 248 (2004) (recognizing an emergency exception to the rule in Commonwealth v. Dodge, supra). See G.L. c. 276, § 42A [giving district and BMC departments authority to impose conditions in domestic abuse related crimes], Section 58A [giving courts authority to impose pretrial detention or conditions of release based on the defendant’s dangerousness], and Sections 87 and 87A [giving courts authority

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to impose conditions on pretrial release when defendant consents and is placed on probation], as discussed in Commonwealth v. Dodge, 428 Mass. 860, 864–65 (1999). See Jake J. v. Commonwealth, 433 Mass. 70, 78–79 (2000) (the procedure for revocation proceeding under Section 58B provides guidance for revocation proceedings under § 87). Under G.L. c. 276, § 58B, a person who has been released after a hearing pursuant to Sections 58 or 58A and who has violated his condition of release, may be subject to a revocation of release and an order of detention up to ninety days. The court must conduct a hearing and if it is established by a preponderance of the evidence that the person has committed a crime while on release, or by clear and convincing evidence that the person has violated a condition of release, and (2) there are no conditions of release that will reasonably assure the person will not pose a danger to the safety of any other person or the community or that the person is unlikely to abide by any condition or combination of conditions of release, the person’s bail and/or conditions of release may be revoked and the person may be held without bail for up to ninety days. The statute also provides that there is a “rebuttable presumption” that the commission of a federal felony or a state crime means that no condition or combination of conditions of release will ensure that the person will not pose a danger to the safety of any other person or the community. A hearing under this section shall be held “immediately” upon the defendant’s first appearance before the court that will conduct the revocation proceedings unless a continuance is sought by the defendant or the Commonwealth. A continuance may be granted for the Commonwealth for no more than three days or for the defendant for no more than seven days unless “good cause” requires otherwise. The defendant “shall be detained” during the period of such a continuance unless the court finds there are conditions of release that will ensure that the person will not pose a danger to the safety of any other person or the community, and that the defendant will abide by the conditions of release. Commonwealth v. Dodge, 428 Mass. 860, 864 n.7 (1999) (“Conditional release, pursuant to G.L. c. 276, § 58A, may be ordered, on a motion by the prosecutor, for certain categories of defendants who have been charged with felonies that have as an element of the crime “the use, attempted use, or threatened use of physical force against the person of another, or any other felony that by its nature involves a substantial risk that physical force against the person of another may result” and specifically includes charges that could result in a third or subsequent conviction for operating while under the influence of liquor. See G.L. c. 276, § 58A (1).”).

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104 105 106 107 108 109 110 111 112

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G.L. c. 276, § 42A. Rule 3 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 4 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 5 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 7 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 8 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 11 of the Rules Governing Persons Authorized to Take Bail (2005). Rules 9 and 10 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 12 of the Rules Governing Persons Authorized to Take Bail (2005). If the defendant is required to recognize for offenses outside the territorial jurisdiction of the person setting the bail or releasing defendants on personal recognizance, an additional fee of up to ten dollars may be charged. Clerkmagistrates and assistant clerk-magistrates are not allowed to receive any fee or compensation for their conduct in setting bail or releasing defendants on personal recognizance “during the hours when their offices are required to be open.” Rule 12 of the Rules Governing Persons Authorized to Take Bails (2005). “If a prisoner is being held under circumstances justifying a release and is not able to provide the fee, the magistrate shall authorize the release without charge.” Rule 12 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 13 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 15 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 16 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 17 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 18 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 19 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 19 of the Rules Governing Persons Authorized to Take Bail (2005). Rules 21–27 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 28 of the Rules Governing Persons Authorized to Take Bail (2005). This duty may require the bailing authority to obtain the services of an interpreter who must be sworn “to do his work faithfully, impartially and with the best of his skill and ability.” Rule 28 of the Rules Governing Persons Authorized to Take Bails (2005). Rule 29 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 30 of the Rules Governing Persons Authorized to Take Bail (2005). Rule 31 of the Rules Governing Persons Authorized o Take Bail (2005). See G.L. c. 276, § 58A. In Mendonza v. Commonwealth, 423 Mass. 771, 782 n.4 (1996), the Supreme Judicial Court upheld the constitutionality of the

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Massachusetts preventative detention statute, G.L. c. 276, § 58A, after a comprehensive review of the federal and state constitutional issues. In Schall v. Martin, 467 U.S. 253, 269–71 (1984), the Supreme Court held that the preventative detention of juveniles in accordance with G.L. c. 276, § 58A does not violate the federal constitution. This result was followed by the Supreme Judicial Court in Victor V. v. Commonwealth, 423 Mass. 793 (1996) (holding that G.L. c. 276, § 58A can constitutionally be applied to juveniles). Commonwealth v. Lester L., 445 Mass. 250, 252 (2005). Neither does the court have discretion as to whether to conduct a dangerousness hearing if a motion is filed. See G.L. c. 276, § 58, last paragraph (stating that in such a case the judge “shall hold a hearing” under Section 58A(4)); G.L. c. 276, § 58A (stating that in such a case the judicial officer “shall hold a hearing” under Section 58A(4)). Commonwealth v. Lester L., 445 Mass. 250, 261 (2005). G.L. c. 276, § 58A, as amended, now includes violations of G.L. c. 269, §§ 10(a), 10(c), and 10(m) as predicate offenses. See Commonwealth v. Lester L., 445 Mass. 250, 257 (2005). See Commonwealth v. Murchison, 428 Mass. 303, 307 (1998). See Commonwealth v. Power, 420 Mass. 410, 413–14 (1995), cert. denied, 516 U.S. 1042 (1996). But see Commonwealth v. Pike, 428 Mass. 393, 402 (1998) (“The condition of the defendant’s probation banishing him from the Commonwealth is invalid and his sentence must be revised accordingly.”), and cases cited. “A probation condition that infringes on constitutional rights must, however, be ‘reasonably related’ to the goals of sentencing and probation.” Id. at 414. Commonwealth v. Murchison, 428 Mass. 303, 308 (1998). See Abbott A. v. Commonwealth, 458 Mass. 24, 28 (2010). Commonwealth v.Torres, 449 Mass. 502, 505 (2004). Torres, 449 Mass. at 502–03. Abbott A. v. Commonwealth, 458 Mass. 24, 30 (2010). The court acknowledged that the Commonwealth’s interest also is greater at a dangerousness hearing than at a regular bail hearing because “its interest is not only to secure the presence of the defendant or juvenile at trial, but to also protect the safety of persons who may be endangered by the defendant’s or juvenile’s release. See G.L. c. 276, § 58A(2) (dangerousness hearing triggered by motion of Commonwealth).” Abbott A. supra, 458 Mass. at 30–31. Id. at 31 (“A dangerous defendant’s or juvenile’s incompetency makes him no less of a threat to the safety of others than a defendant or juvenile who is dangerous but competent.”). Id. at 32.

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Id. In Abbott A. v. Commonwealth, the SJC observed that [w]e leave open the possibility of a different conclusion if a judge were to conclude that, because of the person’s incompetency, the judge is unable to obtain adequate information to make a reliable dangerousness determination. See Torres, supra at 507. We also leave open the possibility that a judge may consider a juvenile’s age in coming to such a conclusion. We need not reach these questions here because the judge made no such finding as to the juvenile’s incompetency, and the record does not support such a finding.” 458 Mass. at 33 n.11. April 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487 (Optional Protocol), quoted in Commonwealth v. Gautreaux, 458 Mass. 741, 745–46 (2011). Commonwealth v. Gautreaux, 458 Mass. 741, 745–46 (2011). In Gautreaux, the SJC also noted that “[i]n a 2005 letter from the United States Secretary of State to the Secretary-General of the United Nations, the United States gave notice of its withdrawal from the Optional Protocol in which it agreed to be bound by the decisions of the International Court of Justice (ICJ). Optional Protocol to the Vienna Convention Concerning the Compulsory Settlement of Disputes, April 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487 (Optional Protocol).” Id. at 746 n.12. Article 36 of The Vienna Convention on Consular Relations reads as follows: Article 36 Communication and contact with nationals of the sending State 1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse

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and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. 2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” Vienna Convention on Consular Affairs, Art. 36(1)(b), quoted in Commonwealth v. Gautreaux, 458 Mass. 741, 747 (2011). Id. Vienna Convention on Consular Relations art. 71, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (the “Vienna Convention”). Further, honorary consuls are not “amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.” Id. art 43 (applied to honorary consuls through article 58(1)). Consular officers are defined as “any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions.” Id. art. 1(1)(d). Consular Officers are subdivided into two categoriescareer consular officers and honorary consular officers. Id. art. 1(2). Both categories of consular officers, however, are covered by consular immunity in the exercise of their official acts. See id. Art. 71. Consular immunity pertains to consular officials, while sovereign immunity applies to states. The Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602–11, is the basis for sovereign immunity, but it does not apply to individual immunities— ”Congress did not intend the FSIA to address position-based individual immunities such as diplomatic and consular immunity.” Samantar v. Yousuf, 130 S. Ct. 2278, 2289, n.12 (2010).” 458 Mass. 741 (2011). Gautreaux, 458 Mass. at 745–46 (footnotes omitted). In Gautreaux, the SJC reproduced the “Uniform procedures were established for officials of the United States Department of Justice to follow when a foreign national is arrested or detained.” They are as follows: Gautreaux, 458 Mass. 745 n.14, quoting 28 C.F.R. § 50.5(a)(1)–(3). In Gautreaux, the SJC noted that the attorney general of the Commonwealth reported that her office had notified state and local law enforcement officials of their responsibilities under Article 36 of the Vienna Convention, that the Massachusetts State Police had adopted a “Procedural Directive,” and that

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training is provided to state and local police. The SJC explicitly avoided any judgment about the adequacy of these measures. See Gautreaux, 458 Mass. at 745 n.14. See Gordon v. City of New York, 2012 WL 1067964 (E.D.N.Y 2012) (collecting cases) (“Adhering to the guidance provided in Mora and other circuit opinions results in the conclusion that Article 36’s directive that detaining officials shall notify a consular office upon an alien’s request cannot, when violated, be vindicated by a private action for damages filed in our courts.) See also Gautreaux, 458 Mass. at 749–50 & nn.17–18, and cases cited. But see Jogi v. Voges, 480 F.3d 822, 834–35 (7th Cir. 2007) (concluding that “Article 36 confers individual rights on detained nationals”). Gautreaux, 458 Mass. at 749–50. Id. at 751 n.21. Gautreaux, supra, 458 Mass. at 752. See Commonwealth v. Zinser, 446 Mass. 807, 810 (2006) (claim of ineffectivness of counsel most appropriately raised in motion for new trial). See also Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010) (“when the deportation consequence is truly clear, . . . the duty [of a criminal defense attorney] to give correct advice is equally clear”). In Gautreaux, the defendant did not make such a claim. The court did conclude that the defendant failed to meet his burden to establish that he was not provided with an interpreter at his change of plea hearing. Id. at 753–55. Gautreaux, 458 Mass. at 745–46 Id. at 747–48. In view of the safeguards under both Massachusetts and federal law that require that a plea of guilty must be accompanied by a knowing and voluntary waiver of rights and that there must be a factual basis for the charge, and that every defendant is entitled to the effective assistance of counsel, see Mass. R. Crim. P. 12, it would seem that in order to succeed on a motion to vacate a guilty plea under Mass. R. Crim. P. 30(b) based on a violation of art. 36 of the Vienna Convention, the defendant would have to demonstrate that something specific in the practices and protocols of the consulate, or of the advice and assistance it would have provided on notification of the detention of one of its citizens would have led the defendant to choose not to plead guilty. See Commonwealth v. Ramirez, 55 Mass. App. Ct. 224, 226 (2002). See also G.L. c. 263, § 1A (police duty to fingerprint and photograph certain arrested persons.). After a person has been convicted, the SJC has recognized there are important public policy reasons for “[t]he maintenance of fingerprint, photograph and arrest records” of both adults and juveniles. See Police Comm’r of Boston v. Dorchester Division, District Court, 374 Mass. 640, 655–56 (1978). “The State has an established and indisputable interest in preserving

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a permanent identification record of convicted persons for resolving past and future crimes and uses fingerprints, and now will use DNA identification, for these purposes.” Landry v. Attorney General, 429 Mass. 336, 347 (1999) (upholding constitutionality of so-called DNA registry under G.L. c. 22E). 149 See Ramirez, supra, 55 Mass. App. Ct. at 226. 150 Pennsylvania v. Muniz, 496 U.S. 582, 601(1990) (plurality opinion). For example, a statement made by the defendant during the booking process at the police station after his arrest, but prior to receiving Miranda warnings, that he resided at a specific address was not “designed or reasonably likely to elicit an incriminating response and is admissible. Commonwealth v. Rise, 50 Mass. App. Ct. 836, 842 (2001). On the other hand, even though department’s booking procedure called for the booking officer to answer a question during booking for crimes of violence about whether a weapon was used, the defendant’s response when the question was read aloud (“The dude hit us”) was the product of interrogation, even though the question was directed at another officer. Commonwealth v. Dixon, 79 Mass. App. Ct. 701, 701, 708–09 (2011) (“In the future, it is preferable, unless a subject has waived his Miranda rights, to eliminate questions about weapons from the litany of questions asked at booking.”). 151 See Commonwealth v. Woods, 419 Mass. 366, 373 (1995). See also Commonwealth v. Sheriff, 425 Mass. 186, 199 (1997) (ordering hearing incident to new trial to assess whether questions asked to ascertain whether defendant’s understanding Miranda warnings were actually designed to elicit incriminating response). 152 See Commonwealth v. Chadwick, 40 Mass. App. Ct. 425, 427 (1996). 153 G.L. c. 263, § 1A. 154 See Commonwealth v. Shipps, 399 Mass. 820, 832 (1987). 155 See, e.g., Commonwealth v. Adams, 434 Mass. 805 811–12 (2001) (introduction of defendant’s refusal to answer booking questions, among other references to his silence, “would be impermissible . . . as evidence of guilt”); Commonwealth v. Ayre, 31 Mass. App. Ct. 17, 23 (1991) (testimony and closing statement directly referencing defendant’s refusal to cooperate during booking was “improper”). 156 Commonwealth v. Gonsalves, 74 Mass. App. Ct. 910, 911 (2009). 157 See Commonwealth v. Charlton, 81 Mass. App. Ct. 294, 303 n.5 (2012) (booking sheet containing defendant’s residential address admitted as an adoptive admission). 158 Commonwealth v. Rise, 50 Mass. App. Ct. 836, 842 n.12 (2001). 159 See Commonwealth v. A Juvenile, 402 Mass. 275, 279 (1988). See also Commonwealth v. A Juvenile, 389 Mass. 128 (1983). 2012 Edition

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Commonwealth v. Banuchi, 335 Mass. 649, 656 (1957) (“Our law clearly requires that a defendant be brought into court as soon as reasonably possible after arrest.”). Accord Commonwealth v. Perito, 417 Mass. 674, 680 (1994); Commonwealth v. Dubois, 353 Mass. 223, 226 (1967). See also Corley v. United States, 556 U.S. 303 (2009). Mass. R. Crim. P. 7(a)(1), Reporter’s Notes (rev. 2004), citing Commonwealth v. Cote, 386 Mass. 354, 361 n.11 (1982). See also Commonwealth v. Rosario, 422 Mass. 48, 51 (1996) (“The purpose of the rule [Mass. R. Crim. P. 7(a)(1)] is to prevent unlawful detention and to eliminate the opportunity and incentive for application of improper police pressure.”). See Commonwealth v. Beland, 436 Mass. 273, 283 (2002). Id. at 52–53, and cases cited. Just because the police bring an arrested person before the court promptly after arrest does not mean that any statements made by that person while in police custody will be admissible in evidence. “Of course, if the defendant did not receive and waive his Miranda rights, or if the defendant did not make the statements freely, intelligently, and voluntarily or, if the statements were obtained before he was advised of his right to use a telephone (see G.L. c. 276, § 33A), the statements must be suppressed.” Rosario, 422 Mass. at 53. Id. at 53–54. In Rosario, the SJC relied in part on decisions from the Commonwealth of Pennsylvania, which has since abandoned its rule that statements obtained after a delay exceeding six hours are per se inadmissible. Commonwealth v. Perez, 845 A.2d 779 (Pa. 2004). In Pennsylvania, the six-hour rule has been replaced by a totality of the circumstances analysis, whereby delay in arraignment is one factor to be considered in determining whether the challenged evidence was the product of coercion. Id. at 787. “[I]n making this determination, courts should consider factors such as the attitude exhibited by the police during the interrogation, whether the defendant was advised of his constitutional rights, whether he was injured, ill, drugged or intoxicated when he confessed, and whether he was deprived of food, sleep, or medical attention during the detention.” Commonwealth v. Sepulveda, 579 Pa. 217, 855 A.2d 783, 793 (Pa. 2004). A strict rule of exclusion like the one enunciated in Rosario represents the minority view among the states. See People v. Willis, 215 Ill.2d 517, 831 N.E.2d 531 (2005); People v. Manning, 243 Mich. App. 615, 624 N.W.2d 746 (2001). The McNabb-Mallory rule takes its name from two decisions of the U.S. Supreme Court, McNabb v. United States, 318 U.S. 332, 344–45 (1943) (defendants were held in custody and interrogated for several days before they were brought to court) and Mallory v. United States, 354 Mass. 449, 455 (1957) (relying on Fed. R. Crim. P. 5(a) and holding that a confession obtained

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seven hours after arrest was inadmissible because the police had ready access to federal magistrates). The rule was based on an exercise by the Supreme Court of its supervisory powers over federal courts and provides that otherwise voluntary confessions must be excluded from evidence when the arrested person is not brought to court “without unnecessary delay” as required by Fed. R. Crim. P. 5(a). In Corley v. United States, 556 U.S. 303 (2009), the Supreme Court considered the effect of 18 U.S.C. § 3501 which was enacted by Congress in 1968 following the decision in Miranda v. Arizona, 384 U.S. 436 (1966). The Supreme Court observed that § 3501(a) and (b) were designed to eliminate the Miranda decision. This issue finally reached the Supreme Court in Dickerson v. United States, 530 U.S. 428 (2000), in which the Court held that Miranda had a constitutional basis and could not be replaced by Congressional enactment. See Corley, 556 U.S. at 309 & n.1. However, § 3501(c), addressed the McNabb-Mallory rule. It provides that a confession made by a person under arrest will not be inadmissible due to delay in bringing the defendant to court so long as it is voluntary and made within six hours of the arrest. In Corley, the Court held that this portion of the statute provides merely that the McNabb-Mallory rule does not render an otherwise voluntary confession involuntary if it is obtained within six hours of arrest. We hold that § 3501 modified McNabb-Mallory without supplanting it. Under the rule as revised by § 3501(c), a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was “reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate]”). If the confession came within that period, it is admissible, subject to the other Rules of Evidence, so long as it was “made voluntarily and . . . the weight to be given [it] is left to the jury. Ibid. If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed. Corley, 556 U.S. at 322 (alternations in original). Thus, the federal courts, unlike Massachusetts, do not follow a bright-line test that renders an otherwise voluntary confession involuntary if it was obtained outside the six-hour safe harbor.

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In Commonwealth v. Christolini, 422 Mass. 854, 856 (1996), the SJC inferred from its reasoning in Rosario that out-of-court bail hearings under G.L. c. 276, §§ 57 and 58 should also take place within six hours. 422 Mass. at 56–57. In Rosario, the defendant was arrested on warrants during the midafternoon hours, held overnight at the police station, and then brought to court in the early afternoon of the following day. He was not questioned about the charges for which he was arrested, but rather, after waiving his Miranda rights, he was questioned the following morning over the course of several hours about his role in a series of burglaries. The defendant admitted his guilt in these other cases. The SJC saw no reason to apply the exclusionary rule and thus reversed the trial judge’s suppression order because the police did not have time to bring the defendant to court on the afternoon of his arrest, the police complied fully with Miranda, the police made no threats against the defendant, the questioning did not relate to the charges that were the subject of the warrants, the police questioning did not extend for more than six hours, there had been a judicial determination of probable cause before the questioning (see Mass. R. Crim. P. 3.1), and the police were not aware that their conduct violated Mass. R. Crim. P. 7(a)(1). See Rosario, 422 Mass. at 55 & n.4 (like the McNabb-Mallory rule, the Rosario rule is not constitutionally based). Commonwealth v. Morales, 461 Mass. 765, 778 (2012) (“Although the judge did not address the issue in his decision, his findings as well as the record make clear that the defendant executed a written waiver of his Rosario rights after he was arrested and just before making his second statement at about 10 a.m. on Sunday, December 9, and again prior to making his third statement on Monday, December 10, at about 9 a.m. The defendant’s argument is predicated on his claim that he did not waive his Rosario rights when he first voluntarily went to the police station for questioning on Saturday evening, December 8. The six-hour safe harbor period announced in Rosario, however, applies when a defendant is arrested, not in circumstances where a person voluntarily goes to a police station for questioning.”). Commonwealth v. Obershaw, 435 Mass. 794, 802 (2002). Commonwealth v. Cook, 419 Mass. 192, 198 (1994), quoting Massachusetts Gen. Hosp. v. Revere, 385 Mass. 772, 778 (1982), rev’d on other grounds, 463 U.S. 239 (1983). Commonwealth v. Morse, 427 Mass. 117, 124 (1998), quoting Stansbury v. California, 511 U.S. 318, 323 (1994). See also Commonwealth v. Martinez, 458 Mass. 684, 694–97 (2011). Commonwealth v. Morganti, 455 Mass. 388, 399 (2009). Rosario, 422 Mass. at 57.

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See Commonwealth v. Siny Van Tran, 458 Mass. 535, 562 (2011), quoting Morganti, supra (“While not strictly a ‘natural disaster or emergency,’ there were exceptional circumstances at play here, ‘not attributable to the police,’ that rendered it extremely impractical, if not impossible, to conduct an interrogation within six hours of arrest.”). In Siny Van Tran, the SJC added: “It can only be described as the rarest of occasions that police would arrest a defendant at 11 p.m. on a Friday night on arrival at the airport after a long overseas flight from Asia that included uninterrupted layovers in San Francisco and Washington, D.C. Due process considerations would properly require that the police refrain from interrogating a defendant, in custody, whose will might be overborne by his exhaustion or incapacity at that late hour, and at the end of such an extended journey. The delay in interrogation was proper in the circumstances. It was also not “attributable to the police,” that Federal law enforcement agencies negotiating the complicated details of an international prisoner transfer and extradition arranged for Tran to arrive in Boston late on a Friday evening when he could not be arraigned until court was in session the following Monday.” Id. at 562–63. Rosario, 422 Mass. at 56. See Commonwealth v. Siny Van Tran, 458 Mass. 535, 561 (2011). See, e.g., Commonwealth v. Santiago, 54 Mass. App. Ct. 656, 659 (2002). Commonwealth v. Siny Van Tran, 460 Mass. 535, 558 (2011) (citation and quotation omitted). Commonwealth v. Novo, 442 Mass. 262, 272 (2004), citing Commonwealth v. Rivera, 441 Mass. 358, 374 (2004). “We decline the defendant’s invitation to interpret the statute to require that the right to a telephone call be given to every person who is in custody. The statute was enacted in 1945, and most recently amended in 1963, before the Supreme Court had developed the concept of custodial interrogation and attendant rights in cases such as Escobedo v. Illinois, 378 U.S. 478, 490–91 (1964), and Miranda v. Arizona, 384 U.S. 436, 444 (1966). In these circumstances, we cannot attribute to the Legislature an intention that the statute was to have the meaning the defendant desires.” Commonwealth v. Rivera, 441 Mass. 358, 375 (2004). See also Commonwealth v. Pileeki, 62 Mas. App. Ct. 505, 510 (2004). The defendant’s right is triggered by “formal arrest, not by the custodial nature of any prearrest interrogation.” Accord Commonwealth v. Hampton, 457 Mass. 152, 155 (2010), citing Commonwealth v. Rivera, 441 Mass. 358, 374–75 (2004). Commonwealth v. Williams, 456 Mass. 857, 866 (2010). See Commonwealth v. Garcia, 409 Mass. 675, 686 (1991) (defendant who chooses to make telephone call pursuant to G.L. c. 276, § 33A, within obvious earshot of police officers enjoys no expectation of privacy).

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See Commonwealth v. White, 422 Mass. 487, 500 (1996), Commonwealth v. Dixon, 79 Mass. App. Ct. 701, 708 n.9 (2011). See Commonwealth v. LeBeau, 451 Mass. 244, 257 (2008); Commonwealth v. Jones, 362 Mass. 497, 502–03 (1972). Id. at 258, citing Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003). In Commonwealth v. Haith, 452 Mass. 409, 413–14 (2008), the SJC found it unnecessary to decide whether G.L. c. 276, § 33A applied to cases in which a person was held in another jurisdiction for transport back to Massachusetts. However, even assuming that it did, the SJC concluded that the defendant failed to satisfy his burden to establish that “law enforcement officers intentionally withheld the defendant’s telephone right in order to coerce the defendant or to gain an advantage in the investigation.” Commonwealth v. Maylott, 43 Mass. App. Ct. 516, 519 (1997). G.L. c. 263, § 5A. Commonwealth v. King, 429 Mass. 169, 172 (1999). Id. Id. at 743. The police do not violate the statute when following a prompt bail hearing they require that someone come to the police station to give the defendant a ride due to his intoxication. King, 458 Mass. at 175 n.4 (citation and quotation omitted). See also Commonwealth v. O’Brien, 434 Mass. 615, 618–19 (2001) (“Here, the officers were of the view that the defendant was not in a fit condition to drive, nor was he in condition to navigate his way home to the next town on foot, alone, at 3:30 A.M. The police gave the defendant the telephone to make alternative arrangements three times (during booking, after bail had been posted, and again prior to placing him in protective custody). The defendant makes no claim that the police interfered in any way with his attempts to contact friends or relatives to arrange for some form of safe transportation. His lack of success in making such arrangements was through no fault of the officers.”). 429 Mass. 169 (1999). Promptness, in this context, is not defined by statute or court rule. The SJC determined that “bail hearings should be held within roughly six hours of booking.” Id. at 175 (“Where the clerk-magistrate waited for over seven hours to conduct the bail hearing, he failed to respond with the promptness required and, therefore, violated the defendant’s right to a prompt bail hearing.”). See Commonwealth v. Christolini, 422 Mass. 854, 856 (1996) (finding that, under the circumstances, a six-hour and six-minute delay did not violate right to a prompt bail hearing). The right to prompt bail is distinguished from the right to a prompt postarrest probable cause determination. In Jenkins v. Chief Justice of the District

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Court, 416 Mass. 221 (1993), the SJC recognized that article 14 of the Massachusetts Declaration of Rights (Article 14) “guarantees that a warrantless arrest must be followed by a judicial determination of probable cause no later than reasonably necessary to process the arrest and to reach a magistrate.” Id. at 232. The Jenkins court held that the probable cause determination should generally occur within twenty-four hours of arrest. Id. at 238. The court also stated that “in order to accommodate unforeseeable circumstances, we shall treat this time period as a presumption: where it is exceeded the police must bear the burden of demonstrating that an extraordinary circumstance caused the delay.” Id. at 238. When an arrestee is promptly bailed, a probable cause determination is no longer required. Id. Id. at 173. The court observed: “Normally, a defendant must go to a hospital if he wishes an independent medical examination because of the difficulty of finding medical personnel willing to come to a police station to draw blood for a blood test. And this usually means that the defendant will have to be released from custody, as the police have no obligation to transport him to the hospital for the blood test, and normally refuse to do so. Because the evidence that may be obtained through the blood test is fleeting, such a test must be conducted promptly; thus, the bail hearing must be conducted promptly. Where the clerk-magistrate refuses to conduct a prompt bail hearing, the arrestee’s right to an independent medical examination is necessarily frustrated.” Id. (citations omitted). Id. at 174 (citation omitted). Id. The SJC added that “[t]he only reference in § 58 to public safety, which permits the court to consider whether the release of an individual will seriously endanger any person or the community where the individual has been arrested for committing an offense while on release pending adjudication of a prior charge, is inapplicable in the present case.” Thus, in a case in which the defendant is on release pending another charge, and is also charged with offenses involving conduct which suggests he is a serious danger to another person or to the community, the clerk may be justified in declining to release the defendant. However, even in such a case, this judgment should be made on the basis of a hearing conducted by the clerk or bail commissioner. Id. at 174–75 (citations omitted). Id. at 176–77 (citations and quotations omitted). See Commonwealth v. Priestly, 419 Mass. 678, 682 (1995) (finding overwhelming evidence of intoxication when the defendant’s inculpatory admissions “independently corroborated the police testimony” [emphasis added]); Commonwealth v. Andrade, 389 Mass. 874, 882 (1983) (overwhelming evidence of intoxication requires “persuasive evidence . . . apart from the officers’ testimony”). See also Commonwealth v. Coppollo, 75 Mass. App. Ct.

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1112 (2009) (Rule 1:28 opinion) (“The police report states that the defendant had difficulty producing his wallet and license after being stopped for speeding, the officer detected an overpowering odor of alcohol coming from the defendant, the defendant attempted to hide this odor from the officer, had difficulty handling his wallet and turning off the lights and ignition of his vehicle, failed to perform three field sobriety tests, stated that he had had too much to drink, and the officer discovered wine bottles and freshly spilled wine in the vehicle. There is no error in the judge’s finding that this evidence overwhelmingly demonstrates that the defendant was intoxicated.”). Id. at 180–81. The court remanded the case to the trial court for findings and rulings on the issue of whether the deprivation of the defendant’s statutory right was prejudicial. See Commonwealth v. Hall, 1999 WL 1324225 (Superior Court No. 98669) (Cowin, J.). See Commonwealth v. Mandell, 61 Mass. App. Ct. 526, 527–29 (2004).

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CHAPTER 2

The Miranda Doctrine Hon. Peter W. Agnes, Jr. * Appeals Court, Commonwealth of Massachusetts § 2.1

*

Introduction to the Miranda Doctrine.................. 2–10 § 2.1.1 The Miranda Doctrine in a Nutshell .......... 2–10 § 2.1.2 The Historical, Constitutional, and Political Debate over the Validity of the Miranda Doctrine ................................. 2–10 § 2.1.3 The Origin of Miranda .............................. 2–17 § 2.1.4 The Holding in Miranda ............................ 2–19 § 2.1.5 There Is an Alternative Procedure that Satisfies the Miranda Doctrine ................... 2–21 § 2.1.6 The Waiver of Rights Is the Linchpin of the Miranda Doctrine............................. 2–22 § 2.1.7 The Miranda Doctrine Is Triggered by Custodial Interrogation ......................... 2–24 § 2.1.8 Definition of “Custodial Interrogation” ..... 2–25 § 2.1.9 Testimony Given in a Judicial Proceeding Is Not Custodial ......................................... 2–25 § 2.1.10 Questioning a Subject Who Is the Focus of the Investigation Is Not Necessarily Custodial Interrogation .............................. 2–26 § 2.1.11 Miranda Warnings Are Not Required Simply Because a Person Is Arrested......... 2–26 § 2.1.12 A Noncustodial Interrogation May Evolve into a Custodial Interrogation .................... 2–26 § 2.1.13 Questioning at Police Station not Always Custodial .................................................... 2–27 § 2.1.14 Defendant Must Waive Miranda Rights Before Custodial Interrogation .................. 2–27 § 2.1.15 Special Rules for Juveniles ........................ 2–27

Copyright © 2012 Peter W. Agnes, Jr. All rights reserved.

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§ 2.1.16 Cases Involving Evidence of Alcohol or Drug Use Must Be Closely Scrutinized .... 2–27 § 2.1.17 Police Should Never Discourage Consultation with Counsel ........................ 2–28 § 2.1.18 Miranda Doctrine Is Not Applicable to Questioning by Non-Law Enforcement Personnel ................................................... 2–28 § 2.1.19 Sixth Amendment Right to Counsel Does Not Attach at the Investigative Stage......... 2–28 § 2.2

2–2

The Meaning of “Custody” for Purposes of Miranda.............................................................. 2–29 § 2.2.1 Definition .................................................. 2–29 § 2.2.2 Burden of Proof ......................................... 2–30 § 2.2.3 Custody Is Determined by an Objective Test ............................................................ 2–30 § 2.2.4 Custody Includes Formal Arrest ................ 2–32 § 2.2.5 Preliminary Questioning During Street Encounters, Motor Vehicle Stops, and the Execution of Search Warrants ............. 2–32 § 2.2.6 Custody Does Not Turn on Whether the Defendant Is the Focus of the Police Investigation .............................................. 2–34 § 2.2.7 Mere Existence of Probable Cause Does Not Mean the Person Is in Custody ........... 2–34 § 2.2.8 Mere Existence of a Warrant or Complaint Does Not Mean the Subject Is in Custody ..................................................... 2–34 § 2.2.9 Custody Does Not Depend on the Subjective View of the Police .................... 2–35 § 2.2.10 Custody Is Not Limited to the Environment of the Police Station .................................. 2–35 § 2.2.11 Miranda Warnings May Be Given as a Precaution .......................................... 2–35 § 2.2.12 An Incriminating Response Does Not Establish that the Setting Is Custodial ....... 2–35 § 2.2.13 Questioning at the Police Station .............. 2–36 (a) Police Station Questioning that Is Custodial ........................................... 2–36 2012 Edition

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(b) Police Station Questioning that Is Not Custodial .................................... 2–36 (c) Analytical Framework for Determining the Custody Question in the Setting of a Police Station ............................. 2–37 § 2.2.14 Questioning a Person at Locations Other than the Police Station ............................... 2–40 (a) Home ................................................. 2–40 (b) Hospital ............................................. 2–41 (c) Interviews of Persons Confined in Correctional Institutions ................ 2–45 (d) School ............................................... 2–47 (e) Courthouse ........................................ 2–47 (f) Lawyer’s Office ................................. 2–47 (g) Police Cruiser .................................... 2–48 (h) Public Place ....................................... 2–48 § 2.3

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The Meaning of “Interrogation” for Miranda Purposes .................................................................. 2–48 § 2.3.1 Definition—Express Questioning or Its Functional Equivalent ................................ 2–48 § 2.3.2 Determination of Interrogation Is Based on an Objective Test ................................... 2–50 § 2.3.3 Spontaneous and Volunteered Statements .................................................. 2–51 § 2.3.4 Police Questions and Statements that Are Not Interrogation................................. 2–52 (a) Questions or Statements Required to Be Asked or Made by State Law ....... 2–52 (b) Conversation About Matters Unrelated to Crime ............................ 2–53 (c) Clarifying Remarks by the Police ..... 2–54 (d) Questions Designed to Test Defendant’s Competency .................. 2–54 (e) Recording Information Relating to Defendant’s Telephone Calls ............. 2–55 § 2.3.5 False Statements, Trickery, and Psychological Ploys May Constitute Interrogation .............................................. 2–55 2–3

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§ 2.3.6 Remarks Overheard by the Police ............. 2–56 § 2.3.7 Questioning by the Police Motivated by Humanitarian Concerns ........................ 2–56 § 2.3.8 Statements Made While in Protective Custody ..................................................... 2–56 § 2.3.9 Public Safety Exception to Miranda.......... 2–57 § 2.3.10 Police Booking Exception to Miranda ...... 2–58 § 2.3.11 Questions Asked by Persons Other than Police or Their Agents ............................... 2–59 (a) Applicability of the Miranda Doctrine ............................................ 2–59 (b) Voluntariness Doctrine...................... 2–61 § 2.3.12 Court Ordered Psychological Examinations ............................................. 2–61 (a) Court-Ordered Mental Health Examinations and the Privilege Against Self-Incrimination ............... 2–61 (b) Warnings Required by Commonwealth v. Lamb.................... 2–64

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§ 2.4

Form of the Miranda Warnings............................ 2–64 § 2.4.1 Introduction ............................................... 2–64 § 2.4.2 Oral Versus Written Administration of Warnings ............................................... 2–66 § 2.4.3 Better Practice to Use So-Called “Fifth Warning” (Right to Stop Questioning) ...... 2–67 § 2.4.4 Better Practice to Inform Defendant of Right to have Counsel Present at All Stages ....... 2–67 § 2.4.5 The Better practice Is to Use the “Waiver” Question .................................... 2–68 § 2.4.6 Warnings used for Non-English Speaking Defendant .................................................. 2–68

§ 2.5

Waiver of Miranda Rights .................................... 2–68 § 2.5.1 Introduction ............................................... 2–68 (a) Federal Law ...................................... 2–69 (b) Massachusetts Law ........................... 2–69 § 2.5.2 The Framework of the Waive Doctrine ..... 2–69 § 2.5.3 There Is a Presumption Against Waiver .... 2–70 2012 Edition

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§ 2.5.4 Waiver Is a Question of Law ...................... 2–71 § 2.5.5 A Valid Waiver May Be Express or Implied ... 2–71 § 2.5.6 Differences Between Implied Waiver Under Federal and Massachusetts Law................. 2–71 § 2.5.7 A Valid Waiver Does Not Require a Showing that the Defendant Appreciated the Consequences of Speaking or Remaining Silent ....................................... 2–73 § 2.5.8 Waiver of Miranda Is Not OffenseSpecific ...................................................... 2–73 § 2.5.9 Commonwealth’s Burden of Proof ............ 2–73 § 2.5.10 A Defendant’s Waiver May Be Selective or Partial .................................................... 2–73 § 2.5.11 Duration of Waiver of Miranda Rights....... 2–74 § 2.5.12 Under Massachusetts Law, Miranda Waiver Does Not Operate Retroactively (Doctrine of “Presumptive Taint”) ............. 2–75 § 2.5.13 Defendant’s Right to Be Notified of Availability of Counsel .............................. 2–75 (a) Police Obligation when Counsel Seeks to Contact Custodial Client ..... 2–75 (b) The Defendant Remains Responsible for the Decision Whether to Speak with the Police or to Assert His Miranda Rights .................................. 2–76 § 2.5.14 Inaccurate or Incomplete Miranda Warnings .................................................... 2–77 § 2.6

Should the Miranda Warnings Be Simplified? .... 2–78 § 2.6.1 Comprehensibility Problems—An Overview.................................................... 2–78 § 2.6.2 The American Bar Association Recommendation ....................................... 2–83 § 2.6.3 Special Juvenile Warnings in New Hampshire .................................................. 2–83 § 2.6.4 Miranda Warnings in Use in Massachusetts ............................................ 2–86

§ 2.7

Waiver of Miranda Rights by Juveniles ............... 2–86 § 2.7.1 Introduction ............................................... 2–86

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§ 2.7.2 Massachusetts Follows the “Interested Adult” Rule ............................................... 2–87 § 2.7.3 The Juvenile Must Be Given an “Actual Opportunity” to Consult with the “Interested Adult”...................................... 2–89 § 2.7.4 Application of the “Interested Adult” Rule ........................................................... 2–90 (a) The “Interested Adult” Must Have the Independence and the Capacity to Assist the Juvenile ........................ 2–90 (b) Language Barriers............................. 2–91 (c) The Requirement of an Actual Opportunity for Consultation ............ 2–91 § 2.7.5 Failure to Comply with “Interested Adult” Rule ........................................................... 2–92 § 2.7.6 Massachusetts Does Not Require Use of Any Special Form of Miranda Warnings for Juveniles .............................................. 2–92 § 2.7.7 Additional Advice to Juveniles.................. 2–93

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§ 2.8

Responsibility of the Motion Judge or Trial Judge ....................................................................... 2–93

§ 2.9

Factors Affecting Whether There Is a Valid Waiver of Miranda or Whether a Statement Is Voluntary ............................................................ 2–96 § 2.9.1 Alcohol or Drug Use ................................. 2–96 § 2.9.2 Mental Illness ............................................ 2–99 § 2.9.3 Mentally Challenged Subjects ................. 2–102 § 2.9.4 Physical Abuse or Threats ....................... 2–103 § 2.9.5 Other Medical, Emotional, or Physical Impairments ............................................ 2–103 § 2.9.6 Language Barriers ................................... 2–106 § 2.9.7 Deception and Misrepresentation ............ 2–107 § 2.9.8 Age .......................................................... 2–107 (a) Special Rule Governs Miranda Waivers by Juvenile ........................ 2–107 (b) Age as a Factor in Determining Validity of a Waiver ........................ 2–108 2012 Edition

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§ 2.9.9 Limited Education ................................... 2–108 § 2.9.10 Promises of Leniency............................... 2–108 § 2.9.11 Encouraging the Defendant to Tell the Truth................................................... 2–108 § 2.9.12 Defendant’s Prior Experience with Law Enforcement..................................... 2–108 § 2.10

Expert Witness Testimony on Waiver of Miranda Rights and/or Voluntariness ............ 2–109 § 2.10.1 Foundation Requirements ........................ 2–109 § 2.10.2 Assessing the Credibility of Expert Witnesses ................................................. 2–109 § 2.10.3 Permissible Scope of Expert Witness Testimony ................................................ 2–110 (a) Credibility of Witnesses .................. 2–110 (b) Interrogation Practices .................... 2–110 (c) Defendant’s Intoxication or Impaired Cognitive Functioning ..................... 2–112

§ 2.11

The Defendant’s Silence, Assertion of Rights, or Denial of Guilt Is Generally Not Admissible at Trial (Doyle v. Ohio Issues) .............................. 2–114 § 2.11.1 The Defendant’s Silence, Inquiry About His or Her Rights, or Assertion of His or Her Rights Following Arrest Is Not Admissible at Trial ................................... 2–114 § 2.11.2 The Doyle Doctrine Does Not Affect Admissibility of Defendant’s Volunteered Statements Following Arrest or Receipt of Miranda Warnings ............................... 2–118 § 2.11.3 The Defendant‘s Prearrest, Pre-Miranda Silence Is Generally Not Admissible Under Massachusetts Law ....................... 2–119 § 2.11.4 The Defendant’s Assertion of the Right to Remain Silent, or a Request for Counsel Prior to Arrest, but in the Course of Police Interrogation, Is Not Admissible at Trial Under Massachusetts Law ....................... 2–122 § 2.11.5 The Defendant’s Post-Miranda Denial of Guilt, Like His Silence, Is Not Admissible Under Massachusetts Law ....................... 2–123

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§ 2.11.6 Evidence of Differences Between the Defendant’s Voluntary Prearrest or Postarrest Statements Obtained in Compliance with Miranda Is Admissible to Contradict the Defendant’s Testimony at Trial ..................................................... 2–124 § 2.11.7 Limited Admissibility of Postarrest Silence or Assertion of Rights ................. 2–124 § 2.12

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Asserting Miranda Rights ................................... 2–125 § 2.12.1 Defendant Must Be in Police Custody .... 2–125 § 2.12.2 The Right to Remain Silent ..................... 2–126 (a) The Right Belongs to the Defendant... 2–126 (b) Timing and Form ............................ 2–126 (c) Exercising the Right to Remain Silent Prior to a Valid Waiver of Miranda Rights ........................... 2–126 (d) In the Postwaiver Setting, a Heightened Standard of Clarity Is Used to Determine Whether the Defendant Invoked the Right to Remain Silent ................................. 2–128 (e) Uncertainty About Whether the Right to Remain Silent Has Been Exercised ........................................ 2–129 (f) Mere Silence During Questioning .. 2–129 § 2.12.3 The Duty to “Scrupulously Honor” the Exercise of the Right to Silence .............. 2–134 § 2.12.4 Exercising the Right to Counsel Under Miranda ................................................... 2–137 (a) Police Interrogation Following Assertion of the Right to Counsel— The Edwards v. Arizona Rule ......... 2–137 (b) What Constitutes the Assertion of Miranda’s Right to Counsel ........ 2–138 (c) The Better Practice Is that Police Should Always Clarify Ambiguous References to Counsel .................... 2–142 (d) Providing Information After Defendant Invokes Right to Counsel ...2–143 2012 Edition

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(e) Assertion of the Right to Counsel Is Not Offense Specific ................... 2–145 (f) Defendant Can Initiate Conversation and Waive Protection of the Edwards Rule ................................................. 2–145 (g) Limitations on the Edwards Rule .... 2–145 (h) Assertion of the Right to Counsel May Be Selective ............................ 2–147 (i) Whether the Defendant Initiated a Resumption of the Interrogation ..... 2–148 (j) Statements Obtained in Violation of Miranda’s Right to Counsel Are Presumed Involuntary...................... 2–149 § 2.13

Consent to Search................................................. 2–149 § 2.13.1 A Request for Consent Does Not Require Reasonable Suspicion or Probable Cause ........................................ 2–149 § 2.13.2 Request for Consent Is Not Custodial Interrogation ............................................ 2–149 § 2.13.3 Assessing a Claim of Consent ................. 2–150 (a) Burden of Establishing Consent Rests with the Commonwealth ........ 2–150 (b) Reviewing Court Must Assess Two Factors—Actual Consent and Voluntariness ................................... 2–150 (c) No Warnings Are Required Before Consent Is Obtained ........................ 2–151 (d) Scope of Valid Consent ................... 2–151

§ 2.14

Audio or Video Recording of Confessions .......... 2–151 § 2.14.1 Introduction ............................................. 2–151 § 2.14.2 Special Jury Instruction Required in Most Cases if No Audio or Video Record ......... 2–152 § 2.14.3 Special Procedures Requiring Preparation of Transcripts of Recorded Custodial Interrogations ........................................... 2–154

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§ 2.1

INTRODUCTION TO THE MIRANDA DOCTRINE

§ 2.1.1

The Miranda Doctrine in a Nutshell

In Miranda v. Arizona, 1 the Supreme Court, for the first time, expressly declared (i) that the Self-Incrimination Clause of the Fifth Amendment 2, made applicable to the states by the Fourteenth Amendment 3, was applicable to police interrogations of persons in custody in a place of detention or elsewhere, (ii) that the Fifth Amendment was self-executing in a limited way by requiring the police to inform the defendant of his rights and by requiring a waiver of those rights before the police could undertake custodial interrogation, and (iii) that a defendant’s statements might be excluded at trial even though they would be admissible under the traditional due process test for voluntariness. 4 “[W]ithout proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” 5 By declaring that custodial interrogation 6 was “compulsion” within the meaning of the Fifth Amendment, the Supreme Court established the basis for a uniform, national rule that “a statement made during a custodial interrogation may be introduced as proof of a defendant’s guilt only if the prosecution demonstrates that the defendant knowingly and intelligently waived his constitutional rights before making the statement.” 7

§ 2.1.2

The Historical, Constitutional, and Political Debate over the Validity of the Miranda Doctrine

There is perhaps no provision in the Constitution of the United States whose history is more difficult to chart and whose meaning is more obscure than the privilege against self-incrimination. Yale Professor Akhil Reed Amar has written that it is “an unsolved riddle of vast proportions, a Gordian knot in the middle of our Bill of Rights. From the beginning, it lacked an easily identifiable rationale; in 1789, the words of the clause were more a slogan than a clearly defined legal rule and in the preceding four centuries the slogan had stood for at least four different ideas. Today, things are no better: the clause continues to confound and confuse.” 8 Professor Amar’s reading of the Fifth Amendment diverges sharply from the reading given to it by the Supreme Court in Miranda. 9 Other scholars of the Fifth Amendment are more supportive of the view taken by the Miranda court. 2–10

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For example, Leonard Levy, author of the 1969 Pulitzer Prize-winning book entitled Origins of the Fifth Amendment, agrees that “[h]istory is ambiguous on the controversial issue whether the right against self-incrimination extends to the police station,” 10 but is supportive of the approach taken by the Supreme Court in Miranda because it is consistent with the historical evidence that the right against self-incrimination grew out of a protest against incriminating interrogation prior to formal accusation. That is, the maxim nemo tentur seipsum prodere (no one is bound to accuse himself) originally meant that no one is obligated to supply the evidence that could be used to indict him. Thus, from the very inception of the right, a suspect could invoke it at the earliest stages of his interrogation. In Miranda, the Supreme Court expanded the right beyond all judicial precedent, yet not beyond its historical spirit. Miranda’s purpose was to eliminate the inherently coercive and inquisitorial atmosphere of the interrogation room and to ensure that any incriminating admissions are made voluntarily. That purpose was the historical heart of the Fifth Amendment, the basis of its policy. 11 Professor Levy readily acknowledges that the warnings devised by the Supreme Court were an “invention” and that there is no historical support for a right to be warned before making an incriminating statement because the historical right or privilege against self-incrimination was not self-executing. He also cautioned against the erection of procedural obstacles to voluntary confessions. Nonetheless, Professor Levy viewed Miranda as consistent with the purpose of the Fifth Amendment. History surely exalts the right if precedence be our guide. It won acceptance earlier than did the freedoms of speech, press, and religion. It preceded a cluster of procedural rights such as benefit of counsel. It is older, too, than immunities against bills of attainder, ex post facto laws, and unreasonable searches and seizures. History also exalts the origins of the right against self-incrimination, for they are related to the development of the accusatorial system of criminal justice, to due process of law, and to the concept of fair trial; the origins of the right are related also to the principle that fundamental law limits government—the very foundation of constitutionalism; and 2012 Edition

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they are related to the heroic struggles for freedoms of the First Amendment. Although history does not exalt the right against the claims of justice, those claims and the right are entwined. The right reflects the view that society profits by seeking the defendant’s conviction without the aid of his involuntary admissions. Forcing self-incrimination brutalizes the system of justice and can produce untrustworthy evidence. The Fifth Amendment is surely one provision of the Constitution of which it is peculiarly true that a little history is worth far more than reams of logic. 12 Professor Alan M. Dershowitz offers another view. Unlike some other provisions of the Constitution, he says, the Fifth Amendment cannot be interpreted; it must be, instead construed. Some constitutional provisions can be interpreted, in the sense that the singular intention of the framers can be discovered by historical research. It is impossible, however, to interpret the relevant words of the Fifth Amendment, in the sense of discovering the singular understanding behind them, because there was no such understanding. Nor can such an understanding be discerned by parsing the words, since the words appear to conflict with each other. The courts therefore have construed—or in the words of Marshall, ‘expounded’—the provision to try to make sense of the garble left by our imperfect framers and to make their imprecise words applicable to changing conditions. 13 For purposes of this book, it is sufficient to note that “[l]ong before Miranda v. Arizona 14, was decided, it was held that a defendant who is in custody has a right to remain silent.” 15 “The postarrest silence of a defendant, such as a failure to deny an accusation, may not be used substantively to prove his guilt. The right of a defendant to remain silent in such a situation was established as a principle of the common law in this Commonwealth long before it became a matter of constitutional right.” 16 In Miranda, the Supreme Court decided that the common law right to remain silent was secured by the Fifth Amendment and that it was available at the earliest stages of a criminal case such as during the police investigation and any custodial interrogation. The Supreme Court also decided that this right should be available for a person to exercise as readily in the atmosphere of a police station 2–12

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as it is in the atmosphere of a courtroom. Finally, the Court made a judgment that the equality of opportunity to exercise the right to remain silent that it believed was guaranteed by the Fifth Amendment required the police to observe special procedures namely, the administration of warnings and the duty to obtain a waiver of rights before interrogation and to scrupulously observe those rights during a custodial interrogation. Recent scholorship about the relationship between Miranda and the Fifth Amendment concludes that whatever the intent of the Warren court might have been, decisions by the U.S. Supreme Court since the 1970’s have “separated Miranda from the Fifth Amendment. . . . [T]he court’s current view of the privilege requires only that suspects receive adequate notice of Fifth Amendment rights.” 17 However, the Miranda doctrine at the state level (as I hope this book illustrates) is much closer to the Warren court’s ideal that a suspect in police custody should have a free choice about whether to speak or not at all stages of a custodial interrogation. 18 The Miranda case was controversial from the start and remains controversial to this day. 19 “Although there were many contentious issues in the 1968 campaign (Vietnam, welfare, inflation, taxes, President Johnson’s War on Poverty, Social Security) the issue that stood out, its theme in every speech at every airport and on every makeshift stage, the one that was remembered most vividly years later was [Nixon’s] appeal for ‘law and order.’” Focusing specifically on Miranda, Nixon said in Ohio two weeks before the election: I was in Philadelphia the other day. I found that a cab driver who had been cruelly murdered and robbed, and the man who murdered and robbed him had confessed the crime, was set free because of a Supreme Court decision. An old woman, who had been brutally robbed and then murdered—the man who confessed the crime was set free in Las Vegas because of a Supreme Court decision. My friends, that’s happening in thousands of cases all over America. I say this. Some of our courts have gone too far in their decisions weakening the peace forces against the criminal forces in the United States of America. And we’re going to change that. 20 Congress responded by enacting legislation which many observers regarded as an effort to overrule Miranda and replace it with a “totality of the circumstances” test, and to reestablish voluntariness as the touchstone for the admissibility of confessions. 21 Despite a concerted effort during the administration of President 2012 Edition

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Reagan by Attorney General Edward Meese to eradicate the Miranda decision, 22 and a myriad of scholarly articles questioning its constitutionality, 23 the Miranda decision has survived albeit in a fundamentally diminished form (at least at the federal level.). 24 In fact, it was Chief Justice William Rehnquist, one of the most severe critics of Miranda, who authored the decision for the Court in Dickerson v. United States, 25 which finally put the constitutional debate to rest by holding that “Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts.” 26 Justice Scalia, Miranda’s most acerbic judicial critic, wrote a scathing dissent in Dickerson in which he not only questioned Miranda’s historical and constitutional foundation, but reprised earlier attacks that it was unsound on policy grounds. Moreover, history and precedent aside, the decision in Miranda, if read as an explication of what the Constitution requires, is preposterous. There is, for example, simply no basis in reason for concluding that a response to the very first question asked, by a suspect who already knows all of the rights described in the Miranda warning, is anything other than a volitional act. See Miranda, supra, at 533–34 (White, J., dissenting). And even if one assumes that the elimination of compulsion absolutely requires informing even the most knowledgeable suspect of his right to remain silent, it cannot conceivably require the right to have counsel present. There is a world of difference, which the Court recognized under the traditional voluntariness test but ignored in Miranda, between compelling a suspect to incriminate himself and preventing him from foolishly doing so of his own accord. Only the latter (which is not required by the Constitution) could explain the Court’s inclusion of a right to counsel and the requirement that it, too, be knowingly and intelligently waived. Counsel’s presence is not required to tell the suspect that he need not speak; the interrogators can do that. The only good reason for having counsel there is that he can be counted on to advise the suspect that he should not speak. 27

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§ 2.1

While the Miranda decision has survived, to say that the doctrine enunciated by the Supreme Court in 1966 has been substantially reformed is an understatement. 28 One view of the Miranda doctrine is that is that it has been so eviscerated by exceptions and qualifications established by the Supreme Court since 1966 that it remains nothing more than a hollow shell. What does Miranda do today? A decade ago, in turning aside a direct attack on Miranda, Chief Justice Rehnquist wrote that Miranda’s warnings “have become part of our national culture.” Dickerson v. United States, 530 U.S. 428, 443 (2000). True enough. Miranda remains a potent symbol for the American people. But symbolism aside, as a practical matter Miranda functions largely as a safe-harbor rule for police. Officers know that if they comply with Miranda’s formal strictures, a challenge to the voluntariness of a statement is likely to fail. It may be too difficult politically for the Court to overturn Miranda even if the majority rejects its central premise. So, instead, like physicians who prescribe a placebo because they disbelieve a patient’s earlier diagnosis, the justices have given us ineffective procedures to address a problem that they do not think exists. One could wish they had addressed the diagnosis directly, which would have opened a much larger and welcome debate about the interrogation process and the law. 29 Another view is that the Supreme Court made a fundamental mistake in its 1966 decision in Miranda when it described modern interrogation practices as inherently compulsive within the meaning of the Fifth Amendment, but that it has gradually corrected its mistake and properly reshaped the Miranda doctrine in a manner that is consistent with the federal constitution. Our justice system depends in part on reliable confessions. We should not stand in the way of interrogation techniques that produce truthful confessions so long as they do not create an unacceptable risk of producing false ones. As Justice Scalia memorably put it, it is wrong, and subtly corrosive of our criminal justice system, to regard an honest 2012 Edition

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confession as a “mistake.” . . . Not only for society, but for the wrongdoer himself, admissio[n] of guilt . . ., if not coerced, [is] inherently desirable because it advances the goals of both justice and rehabilitation .... We should ... rejoice at an honest confession, rather than pity the “poor fool” who has made it. . . . Minnick v. Mississippi, 498 U.S. 146, 167 (1990) (Scalia, J., dissenting) (citations omitted) (internal quotation marks omitted). If that is right, then Miranda’s lack of impact on psychological interrogation methods, and police exploitation of Miranda’s loopholes, should be not mourned but celebrated. If criminal justice is a search for the truth, then Miranda should be no obstacle. Leaving Miranda as a hollow symbol, dead on the inside, may be the best stable compromise that one can make with a flawed decision. Police have learned to live with it, so in practice it costs us few confessions. 30 Social science research, however, offers another perspective on the debate over the value of the Miranda doctrine. “On the one hand, Miranda is so doctrinally confused that legal scholars have difficulty seeing how it can continue to exist with any semblance of coherence. Yet on the other hand, as our survey results bear out, many police administrators have come to embrace it as a standard of professionalism and right conduct, and are scrupulous in applying the letter of Miranda. Nevertheless, in practice, police often administer Miranda in ways that do not convey to suspects the full meaning of their constitutional privilege to remain silent. . . . The acceptance of Miranda by police, supported by the results of our survey, shows that although it may not have led police to behave in accordance with the original vision of the case, it continues to be the legal standard on which a law-abiding and restrained approach to interrogation rests.” 31 Over time, the Supreme Judicial Court (SJC) has declined to follow some of the decisions of the Supreme Court that have retreated from the original vision as expressed in Miranda, 32 and supplemented the Miranda doctrine with additional safeguards 33, particularly in terms of a greater burden of proof with respect to the waiver of Miranda rights, 34 an enhanced role for counsel, 35 a less demanding standard for determining that a suspect has asserted the right to remain silent at the outset of an interview, 36 a more consequential exclusionary rule 37, special protections for juveniles, 38 a strong preference for recording police interrogations, 39 and a growing distaste for the use of psychological methods of interrogation. 40 2–16

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§ 2.1

This chapter examines how the Miranda doctrine has been developed by the Supreme Court, and the many differentiations from the federal doctrine mandated by the SJC under both the common law of Massachusetts and Article 12 of the Massachusetts Declaration of Rights. As Justice Fried observed in Commonwealth v. Larkin, 41 The Miranda rule is not a legislative mandate, whose plain meaning must be followed even where the result in a particular case may seem unreasonable; it is a judicial exposition of what the Supreme Court has concluded is an implication or implementation of the constitutional privilege against self-incrimination. . . . Miranda states a principle, and it is the principle to which we must look in determining Miranda’s proper range. The Miranda doctrine protects an individual’s Fifth Amendment privilege against selfincrimination. 42 Although the Miranda doctrine has not been adopted as a matter of state law, it protects rights guaranteed by Article 12 of the Declaration of Rights as well. 43 The Fifth Amendment applies to the states through the Fourteenth Amendment. 44 The protections afforded by the Fifth Amendment and Article 12 of the Massachusetts Declaration of Rights, in turn, apply only to the compelled production of communicative or testimonial evidence 45 and do not apply in circumstances where a witness is the source of real or physical evidence. 46 As noted earlier, the Miranda doctrine represents an exception to the general rule that the Fifth Amendment privilege is not self-executing, i.e., generally a person who answers questions posed by a government official or in a judicial proceeding and incriminates himself or herself has lost the benefit of the Fifth Amendment privilege (as to those statements) even though there was no formal waiver of the privilege. 47 Under Miranda, a person who speaks to the police during a custodial interrogation without waiving his or her Miranda rights has not lost the benefit of the privilege. 48 Also, a person who speaks to the police and answers questions does not waive his or her Fifth Amendment privilege beyond that conversation. 49

§ 2.1.3

The Origin of Miranda

Miranda was a response to several developments. There were shortcomings in the “totality of the circumstances” test used by the Supreme Court to evaluate the voluntariness of confessions from the 1930’s to the 1960’s. “As a theoretical matter, the law was clear. In practice, however, the courts found it exceedingly difficult to determine whether a given confession had been coerced. Difficulties 2012 Edition

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of proof and subtleties of interrogation technique made it impossible in most cases for the judiciary to decide with confidence whether the defendant had voluntarily confessed his guilt or whether his testimony had been unconstitutionally compelled. Courts around the country were spending countless hours reviewing the facts of individual custodial interrogations.” 50 The Warren Court also was prescient in recognizing the capacity of modern, psychological methods of police interrogation to break an individual’s resistance and to persuade the individual to confess. 51 In addition, the Supreme Court faced mounting criticism over its decision in 1964 in Escobedo v. Illinois, 52 which, like Miranda, sought to insure that a person could exercise his right to remain silent during custodial interrogation, 53 but which was grounded in the Sixth Amendment, and was imprecise about when the right to counsel would arise. 54 Finally, and most controversially, a majority of the Supreme Court was persuaded that the nation’s reliance on confessions threatened the integrity of our accusatorial system of criminal prosecution. 55 In Miranda, the majority acknowledged that in none of the four cases that were before the Court was it clear that the resulting confessions would have been suppressed as involuntary under the traditional due process test. Nonetheless, the Court reasoned that the atmosphere of custodial interrogation itself carries its own badge of intimidation. The Court “stressed that the modern practice of incustody interrogation is psychologically rather than physically oriented.” 56 After describing some of the techniques explained in police training manuals then in use, the Supreme Court observed that “[t]hese tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty. Explanations to the contrary are dismissed and discouraged.” 57 Further, the Supreme Court acknowledged the use of interrogation techniques involving outright misrepresentations such as reverse-lineups in which the subject is put in a line-up and fictitious witnesses identify him as someone involved in crimes other than those under investigation. “It is expected that the subject will become desperate and confess to the offense under investigation in order to escape from the false accusations.” 58 However, the Court did not conclude that the deception and psychological ploys used by the police to elicit confessions during custodial interrogation were unlawful, but rather that the subject had a right to be effectively advised so that he could exercise his privilege against selfincrimination at any time. 59 Having equated custodial interrogation with compulsion for purposes of the Fifth Amendment privilege, the Miranda court faced the challenge of establishing procedures that would ensure that a person held in police custody, isolated from family, friends, and familiar surroundings, and subjected to modern, psychologically-based interrogation techniques, would not feel any greater degree of compulsion to speak than a person called before a court. As Chief Justice Warren observed for the majority, the Fifth Amendment privilege is fulfilled 2–18

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only when an individual is guaranteed the right “to remain silent unless he chooses to speak in the unfettered exercise of his own will.” 60

§ 2.1.4

The Holding in Miranda

“In Miranda, the United States Supreme Court established a ‘prophylactic’ mechanism 61 to safeguard the protections afforded by the Fifth Amendment.” 62 The heart of the Miranda doctrine, as originally formulated, is the belief that during custodial interrogation, the pressure on the suspect to respond flows not from the threat of punishment at the hands of the state, but rather from the “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” 63 The Miranda doctrine requires that a person in custody must be warned prior to police interrogation as follows: “[1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” 64 “And, if a suspect makes a statement during custodial interrogation, the burden is on the Government to show, as a ‘prerequisit[e]’ to the statement’s admissibility as evidence in the Government’s case in chief, that the defendant ‘voluntarily, knowingly and intelligently’ waived his rights.” 65 The Miranda doctrine also requires that an individual be allowed to assert these rights at any time prior to or during an interview, even after waiving that right. 66 The Supreme Court also stated that “the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege. . . . [T]he need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.”. 67 In Miranda, the Supreme Court added two additional safeguards. First, it assigned to the government a “heavy burden” to prove a waiver of Miranda rights. Second, it stated that once Miranda rights were waived, the police had a responsibility “to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.” 68 In Miranda, the Supreme Court summarized its holding as follows: [W]e hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is 2012 Edition

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jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” 69 Recent developments suggest a new frontier in the evolution of the Miranda doctrine at the state level may have been opened. As noted above, in Miranda, the Supreme Court did not outlaw the psychological approaches to police interrogations that it described as coercive or potentially coercive. Rather, the Supreme Court sought to change the conditions under which custodial interrogation is conducted by installing the requirement of the now familiar warnings and the obligation by the police to obtain a waiver of the defendant’s rights before proceeding with the interrogation. Supreme Court decisions since Miranda have not held or even indicated that the Miranda doctrine dictates how the police should conduct custodial interrogations. However, based on the language in the Miranda decision which indicates that the person in custody must be allowed to exercise her Miranda rights at any time during the interrogation, 70 the case may be read to mean that even though a subject makes a valid waiver of Miranda rights, as long as the subject is in police custody, the police are not permitted to use any interrogation tactic that prevents the subject from exercising his Miranda rights i.e., that Miranda is itself the basis for a judicial ruling that certain interrogation practices are unlawful. 71 Neither the U.S. Supreme Court nor the SJC have adopted this position. However, the Supreme Court has held that coercive police interrogation tactics (e.g., harsh questioning of a suspect after he was shot and while undergoing emergency medical care) do not constitute a per se violation of the Fifth Amendment’s self-incrimination clause unless the evidence obtained as a result of these practices is used against the defendant. 72 2–20

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The Supreme Court has identified certain extreme forms of custodial interrogation that violate the due process clause of the Fourteenth Amendment (apart from whether any evidence obtained from the subject is used against him) and they may be described as unlawful per se. 73 The condemned practices include incommunicado interrogations involving a denial of access to family and counsel; use of physical violence or threats to kill the subject unless he or she confesses; persistent interrogation of a severely wounded or injured subject, and persistent interrogation of a subject who is deprived of food, water, or sleep.

§ 2.1.5

There Is an Alternative Procedure that Satisfies the Miranda Doctrine

In Commonwealth v. Simon, 74 the SJC reached an issue specifically left open in Miranda—whether an alternative to the Miranda warnings would inform the suspect of his right to remain silent and that it may be exercised at any time. In Simon, the police received information which led them to have reasonable grounds to believe that the defendant had shot two brothers at their home in Winchester. One of the brothers died from his wounds. The state police followed the defendant from Medford to a location in Boston where he parked his car. The defendant got out of his car and was talking on his cell phone. The police approached, and pat frisked him. The defendant said he was talking to his attorney and that he did not want to speak to the police until his attorney arrived. A few minutes later the attorney appeared. The police stated that they wanted to speak to the defendant about an incident in Winchester. The attorney said he and the defendant were going to go upstairs to his office (it was in a nearby building) and that he would advise the defendant if his client would speak to them. After about forty-five minutes, the police learned that the surviving victim had identified the defendant as the shooter. As troopers went upstairs to arrest the defendant, another officer called the attorney and learned that the defendant would speak to them. The troopers sent to make the arrest then were instructed not to handcuff the defendant. The state police met with the defendant and his attorney in the attorney’s conference room. 75 The police explained in conversational tones the basic facts about the shooting, that the survivor had identified the defendant as the shooter from a photographic array, and that one of the victims had died from his wounds. The defendant was not advised of his Miranda warnings by the police and his counsel did not state he had advised his client of his Miranda rights. The defendant denied any involvement in the incident and provided an alibi for the time in question. A short time later, defendant’s counsel ended the interview and the defendant was arrested. 76 A majority of the SJC Justices concluded that “the presence of an attorney during questioning, when combined with the opportunity to consult with the attorney 2012 Edition

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beforehand, substitutes adequately for Miranda warnings.” 77 The majority also concluded that the alternative procedure was sufficient to protect against any police misconduct, and thus, there was no need to require the use of Miranda warnings as a matter of state law. 78 Simon settles for now the question whether an alternative procedure involving the presence of and prior consultation with counsel is an adequate substitute for Miranda warnings under both the federal and Massachusetts constitutions. The answer under Massachusetts law is “yes.” However, although the majority in Simon describe the alternative procedure as a bright-line rule, the dissenters are certainly correct in pointing out that this exception to the traditional formulation of the Miranda doctrine will give rise to questions that are at this time unanswered. What constitutes an “opportunity to consult”? Is it enough if the suspect and the lawyer speak together for fifteen minutes? Ten? Five? One? Does it matter if the lawyer and the suspect have a prior relationship? Does it matter whether the lawyer has any training in criminal defense? It is clear that what should matter here is not the opportunity to consult but the actual consultation itself: have the lawyer and the suspectthe lawyer’s client-discussed at least the client’s right against self-incrimination and the possibility of waiver? However, there can be no inquiry into the nature or contents of the consultation because the attorneyclient privilege forbids it. 79 Furthermore, the majority opinion in Simon states that the presence of and an opportunity to consult with counsel “substitutes adequately for Miranda warnings.” 80 Proof that a person received Miranda warnings, however, is not itself proof of a valid waiver of Miranda rights. As the majority observed in Commonwealth v. Simon, supra, “[t]he decision whether to speak with the police during custodial interrogation belongs to the suspect.” 81

§ 2.1.6

The Waiver of Rights Is the Linchpin of the Miranda Doctrine

In Miranda, the Court made it unmistakably clear that the duty of the police to administer the protective warnings before custodial interrogation is separate and distinct from their duty to obtain from the suspect a valid waiver of the privilege against self-incrimination. “The requirement of warnings and waiver of rights is fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.” 82 Although the Supreme 2–22

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Court has retreated from this view 83, the SJC has consistently adhered to the distinction between the waiver of Miranda rights and the invocation of Miranda rights. 84 A waiver of Miranda rights in Massachusetts is not valid “unless specifically made after the warnings . . . have been given,” [and] “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” 85 Moreover, under Massachusetts law, the defendant does not have to assert the right to remain silent or the right to counsel in a clear and unambiguous manner at the pre-waiver stage. At the prewaiver stage, “the suspect has yet to exercise the choice between speech and silence that underlies Miranda. To require a suspect, before a waiver, to invoke his or her right to remain silent with the utmost clarity, as called for by [Berghuis v.] Thompkins, would ignore this longstanding precedent and provide insufficient protection for residents of the Commonwealth under art. 12.” 86 The function of a waiver, therefore, is to insure that in the compelling, intimidating atmosphere of custodial interrogation, a person’s decision to speak to the police is voluntary. Miranda interprets the Fifth Amendment to mean that mere knowledge of one’s rights, even access to legal advice about one’s rights, is by itself not enough to overcome the compulsion that is inherent in custodial interrogation. As Chief Justice Warren observed for the majority, the Fifth Amendment privilege is fulfilled only when an individual is guaranteed the right “to remain silent unless he chooses to speak in the unfettered exercise of his own will.” 87 Miranda requires that in order for a statement made by a person in police custody to be voluntary, it must be the product of a knowing and intelligent waiver of the privilege. “[T]he waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” 88 Moreover, the government bears a “heavy burden” to demonstrate a waiver, 89 i.e., that the individual’s decision to speak was an “unfettered exercise of his own will.” 90 In order to appreciate the critical importance of the distinction between an individual’s awareness of her Fifth Amendment privilege and her waiver of that privilege, it is necessary to understand the distinction between a police interview and a police interrogation. According to the leading American instructional text on police interrogations, Fred E. Inbau et al., Criminal Interrogation and Confessions (5th ed. 2012), “[a]n interview is nonaccusatory. . . . The purpose of an interview is to gather information. . . . [I]t may be conducted before evidence is analyzed or all the factual information about an investigation is known. . . . An interview may be conducted in a variety of environments. . . . Interviews are free flowing and relatively unstructured.“ 91 “By contrast, “[A]n interrogation is accusatory. . . . An interrogation involves active persuasion. The fact that an interrogation is conducted means that the investigator believes the suspect has not 2012 Edition

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told the truth during nonaccusatory questioning. . . . The purpose of an interrogation is to learn the truth. . . . An interrogation is conducted in a controlled environment. . . . An interrogation is conducted only when the investigator is reasonably certain of the suspect’s guilt. . . . An interrogation should not be used to evaluate a suspect’s truthfulness.” 92 The so-called Reid method of police interrogation, which may be the predominant method of interviewing or interrogating suspects in use in the United States, is the subject of continuing controversy. It is a psychological approach to interrogation that was developed following the report in 1931 of a presidential commission known as the Wickersham Report which called attention to the use of physical violence and to prolonged questioning incommunicado by the police in order to extract confessions. 93 In Miranda, the Supreme Court discussed the origin and development of the Reid method. 94 The current version of the Reid method is described in the fifth edition of the treatise known as Criminal Interrogation and Confessions. 95 The Reid method, which consists of nine steps or “structural components,” 96 is designed to be employed “in the context of the interrogation of suspects whose guilt seems definite or reasonably certain.” 97 The authors of the current treatise also declare that “we are opposed to the use of any interrogation tactic or technique that is apt to make an innocent person confess. We are opposed, therefore, to the use of force, threats of force, or promises of leniency.” 98 Critics have questioned the Reid method on grounds that it is simply pseudo-science, 99 and that the guilt-presumptive nature of the interrogation phase of the Reid method is inconsistent with the objective of discovering the truth. 100 There are no appellate decisions which have deemed the Reid method an unlawful method of interrogation. 101 The requirement of Miranda warnings does not turn on the distinction between an “interview” and an “interrogation.” If a person is questioned by the police in a setting where a reasonable person would not feel free to leave, it is a “custodial interrogation” regardless of how it is described in a training manual or police policy.

§ 2.1.7

The Miranda Doctrine Is Triggered by Custodial Interrogation

“Miranda warnings are only necessary where one is subject to custodial interrogation.“ 102 The quintessential example of custodial interrogation is police questioning of a suspect in the isolation of the police station—a situation in which there are “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” 103 “[C]ompulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there 2–24

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are often impartial observers to guard against intimidation or trickery.” 104 A “compelling influence” includes both express questioning and “any words or actions, other than those normally attendant to arrest and custody, that they (the police) should have known were reasonably likely to elicit an incriminatory response from the suspect.” 105

§ 2.1.8

Definition of “Custodial Interrogation”

Custodial interrogation means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 106 “‘To find custodial interrogation, the court must first examine all the circumstances surrounding the exchange between the government agent and the suspect, then determine from the perspective of a reasonable person in the suspect’s shoes whether there was (1) a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest and (2) express questioning or its functional equivalent’. . . which includes ‘any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’“ 107 Detention or a loss of freedom of movement, therefore, is a necessary, but not a sufficient condition to trigger the obligation to obtain a waiver of the Miranda rights. 108 The determination of whether a person has been subjected to custodial interrogation is a question of federal constitutional law. 109 It is not simply the presence of coercive pressure that triggers the application of Miranda because coercive pressure exists in every circumstance in which a person suspected of involvement in criminal activity is questioned by the police. 110 Therefore, Miranda applies and the warnings must be given only when a person is in police custody and subject to interrogation. 111

§ 2.1.9

Testimony Given in a Judicial Proceeding Is Not Custodial

A person, even someone who is in the custody of the state serving a sentence for a crime, and who is brought into court under a summons to testify in a judicial proceeding, is not regarded as subject to custodial interrogation, and thus is not entitled to Miranda warnings. 112 “Judges often warn trial witnesses, or even call in counsel, where a witness appears to be on the verge of incriminating himself, but this admirable practice is not commanded by the Constitution.” 113 2012 Edition

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§ 2.1.10 Questioning a Subject Who Is the Focus of the Investigation Is Not Necessarily Custodial Interrogation Miranda warnings are not required simply because the person being questioned has become the focus of the police investigation. 114 “It is well settled . . . that a police officer’s subjective view that the individual under questioning is a suspect, if undisclosed, does not bear upon the question whether the individual is in custody for purposes of Miranda.” 115 “The determination of custody depends primarily on the objective circumstances of the interrogation, and not on the subjective views of either the interrogating officers or the person being questioned. The critical question in making the custody determination is “whether, considering all the circumstances, a reasonable person in the defendant’s position would have believed that he was in custody.” 116 “However, the conveyance of police suspicions can affect the custodial nature of an interrogation. An officer’s knowledge or belief may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned. Those beliefs are relevant only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action.” 117 In making a determination as to the custodial nature of interrogation, “[r]arely is any single factor conclusive.” 118 “The basic inquiry is whether, from the point of view of the defendant, the interrogation took place in a coercive environment.” 119

§ 2.1.11 Miranda Warnings Are Not Required Simply Because a Person Is Arrested The mere fact that a person has been arrested does not require the police to administer Miranda warnings unless there is custodial interrogation. 120 The Miranda doctrine was not intended to prevent a defendant from volunteering incriminating information. 121 Rather, it was designed to “vest a suspect in custody with an added measure of protection against coercive police practices.” 122

§ 2.1.12 A Noncustodial Interrogation May Evolve into a Custodial Interrogation If a person is free to leave at the beginning of an encounter with the police, but during the encounter is no longer free to leave, the encounter may have evolved into a custodial situation making the Miranda doctrine applicable to any interrogation that may take place. 123 2–26

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§ 2.1.13 Questioning at Police Station not Always Custodial Not all questioning by the police, even at the police station, constitutes custodial interrogation. If police questioning does not amount to custodial interrogation, there is no requirement that the police must administer Miranda warnings. “There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment . . .” 124

§ 2.1.14 Defendant Must Waive Miranda Rights Before Custodial Interrogation In order to comply with the Miranda doctrine, the police must not only advise a person of the Miranda rights before custodial interrogation, but they also must obtain a waiver of those rights. 125 “Presuming waiver from a silent record is impermissible. 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 waiver.” 126 As a matter of state law, the Commonwealth has the burden of proving a valid waiver of Miranda rights by a standard of proof beyond a reasonable doubt. 127

§ 2.1.15 Special Rules for Juveniles Both the U.S. Supreme Court and the SJC recognize that there are fundamental differences between juveniles and adults that bear on the determination of juvenile waiver questions and whether statements made to the police by juveniles were voluntary. 128 Massachusetts follows a common law, “interested adult” rule whereby the Commonwealth must demonstrate, in most cases, that a parent or other interested adult was present, understood the Miranda warnings, and had the opportunity to explain them to the juvenile before custodial interrogation in order to establish a knowing, voluntary, and intelligent waiver of the juvenile’s rights. 129

§ 2.1.16 Cases Involving Evidence of Alcohol or Drug Use Must Be Closely Scrutinized “Special care must be taken in assessing a waiver and the voluntariness of the statements where there is evidence that the defendant was under the influence of alcohol or drugs. Nonetheless, an otherwise voluntary act is not necessarily 2012 Edition

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rendered involuntary simply because an individual has been drinking or using drugs.” 130 A person may validly waive Miranda rights even though he or she has an alcohol or drug problem and has recently consumed alcohol or drugs. 131

§ 2.1.17 Police Should Never Discourage Consultation with Counsel It is improper for the police to tell an individual that he or she doesn’t need a lawyer. Such a comment, whether made in response to a person’s question or otherwise, could result in a determination that any statement made by the person is involuntary and thus inadmissible in evidence. 132 Likewise, it is improper for the police to disregard any indication by a person in custody that they reasonably understand as a request to consult with counsel. 133

§ 2.1.18 Miranda Doctrine Is Not Applicable to Questioning by Non-Law Enforcement Personnel Miranda has no application to questioning that is not conducted by law enforcement officers or those acting on their behalf. 134 Thus, ordinarily school officials are not required to administer Miranda warnings before questioning students. 135 Court officers are regarded as law enforcement officers for purposes of a Sixth Amendment analysis and thus are forbidden from questioning a defendant following his or her arraignment absent a valid waiver of his or her rights. 136 In addition, court officers may have police powers on or about courthouse property. 137 There is no principled reason for considering court officers other than law enforcement officers for purposes of the Miranda doctrine. Miranda warnings are not required when the person who questions the suspect is an undercover officer or agent of law enforcement who is not known as such by the suspect. 138

§ 2.1.19 Sixth Amendment Right to Counsel Does Not Attach at the Investigative Stage The Sixth Amendment right to counsel as soon as adversary judicial proceedings have begun which usually means not until the arraignment on an indictment by the grand jury or arraignment on a complaint. 139 Massachusetts law follows federal law in this area. 2–28

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THE MEANING OF “CUSTODY” FOR PURPOSES OF MIRANDA

§ 2.2.1

Definition

§ 2.2

In Miranda, the Supreme Court described custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 141 “Custody” for purposes of the Miranda doctrine requires a formal arrest or a restraint of one’s freedom of movement associated with a formal arrest. 142 According to the Supreme Court, Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave. Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest. 143 In the case of a person who is incarcerated at the time he or she is interrogated, “the determination of custody should focus on all of the features of the interrogation. These include the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted.” 144 In the case of a juvenile, the child’s age is a factor in the Miranda custody analysis, provided that it was known to the officer at the time of police questioning, or would have been known to a reasonable person in the officer’s position. 145 Relying on authorities in the fields of social and cognitive science, the Supreme Court made this observation in J.D.B. v. North Carolina: A child’s age is far more than a chronological fact. It is a fact that generates commonsense conclusions about behavior and perception. Such conclusions apply broadly to children as a class. And, they are selfevident to anyone who was a child once himself, including any police officer or judge. Time and again, this Court has drawn these commonsense conclusions for itself. We have observed 2012 Edition

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that children generally are less mature and responsible than adults; that they often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them; that they are more vulnerable or susceptible to. . . outside pressures than adults, and so on. Addressing the specific context of police interrogation, we have observed that events that would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. Describing no one child in particular, these observations restate what any parent knows—indeed, what any person knows—about children generally. 146 Custody is assessed from the standpoint of a reasonable person in the defendant’s position; subjective suspicions by the police that the defendant committed a crime, if not communicated to the defendant, are not relevant. 147

§ 2.2.2

Burden of Proof

The burden is on the defendant to establish “custody.” 148 “The crucial question is whether, considering all the circumstances, a reasonable person in the defendant’s position would have believed that he was in custody.” 149

§ 2.2.3

Custody Is Determined by an Objective Test

“Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.’” 150 Therefore, “the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” 151 The question is whether the circumstances, viewed objectively, would lead a reasonable person to believe he was in custody. 152 The objective nature of the test “avoids burdening the police with the task of anticipating the idiosyncrasies of every individual suspect and divining how those particular traits affect each person’s subjective state of mind.” 153 The objective test does not foreclose consideration of individual characteristics. “Rather than demarcate a limited set of relevant circumstances, we have required police officers and courts to examine all of the circumstances surrounding the interrogation, including any circumstances that would have affected how a reasonable person in the suspect’s position would perceive his or her freedom to 2–30

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leave.” 154 As noted above, a child’s age, if known or reasonably apparent to the interrogating officer, is a relevant factor that must be considered in the custody analysis because it may affect how a reasonable person in the child’s position would perceive his or her ability to leave. 155 There are four analytical factors that must be considered in determining whether a person is in custody for purposes of the Miranda doctrine. In assessing the circumstances, the Court considers several factors: (1) the place of the interrogation; 156 (2) whether the officers have conveyed to the person being questioned any belief or opinion that that person is a suspect; 157(3) the nature of the interrogation, including whether the interview was aggressive, or instead, informal and influenced in its contours by the person being interviewed; 158 and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest. 159 No one factor is dispositive. 160 The second of the four analytical factors comes into play only when the person in custody is aware that the police have focused on him or her as a suspect. 161 As for the fourth factor, even when there is a finding that a person in the defendant’s position would not feel free to leave, the judge may conclude that the defendant was not in custody if under the circumstances the detention was brief, like that associated with an investigative stop or threshold inquiry as opposed to a formal arrest. 162 The fact that the police may be motivated by humanitarian concerns in their selection of the place of the interrogation does not affect the question of whether the atmosphere is coercive and Miranda warnings are required. 163 Because the test is objective, custody may be established by proof that the questioning of the defendant took place in a coercive environment regardless of whether the defendant believed the setting was custodial. 164

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§ 2.2.4

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Custody Includes Formal Arrest

Formal arrest and its functional equivalents are the quintessential examples of custody for purposes of the Miranda doctrine. 165

§ 2.2.5

Preliminary Questioning During Street Encounters, Motor Vehicle Stops, and the Execution of Search Warrants

Under the Fourth Amendment to the U.S. Constitution and Article 14 of the Declaration of Rights, a person may be briefly detained by the police, on the basis of reasonable suspicion of criminal activity but without probable cause, for a threshold inquiry on the street or while in an automobile. 166 Although the individual is not free to leave for some period of time while the police make their inquiries, this type of custody is not subject to Miranda because it does not have the hallmarks of the coercive environment of a police station. 167 “Any police interview of an individual suspected of a crime has coercive aspects to it,” 168 but only when the individual is subject to “custodial interrogation” are the police required to secure a waiver of the individual’s Miranda rights. 169 Merely because the police have grounds to conduct a pat frisk for weapons does not mean that the defendant is in custody for purposes of Miranda. 170 The doctrine that a person may be detained for a preliminary inquiry without effecting an arrest arose in a different but analogous setting in Commonwealth v. Limone. 171 There, the issue was whether an off duty police officer from another jurisdiction had arrested a motorist outside the officer’s jurisdiction. In concluding that the off duty officer had not made an arrest, the SJC observed that “Kelleher’s actions in telling the defendant to step out of the car, removing and retaining his keys from the ignition, and telling him to sit and wait in his car, fall short of an ‘arrest’ sufficient to trigger the citizen’s arrest rule. Instead, Kelleher’s actions were more akin to an investigatory ‘stop,’ short of an arrest. In the circumstances of this case, it was reasonable for Kelleher—as it would be for a private citizen—to prolong the ‘stop’ until the Woburn police arrived, in order to ensure the safety of the public and of the defendant himself.“ 172 On the other hand, a brief, warrantless detention of a person without probable cause that satisfies the Fourth Amendment and Article 14 of the Declaration of Rights may nonetheless constitute custody for purposes of the Miranda doctrine. For example, in Commonwealth v. Gordon, 173 the police discovered a woman running from some bushes adjacent to a convenience store from which someone had shortly before this reported an armed robbery by a person wearing a mask and wielding a knife. She matched the description of the robber in height, build 2–32

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and the color of her pants. When the police approached her, she resisted their efforts to detain her. She was handcuffed and placed inside a police cruiser. An officer leaned into the window and asked (in an effort, the officer said, to calm her down) what she was doing in the area at such an early hour (5:15 a.m.). The woman responded, “I didn’t want to do it; he made me do it.” She then identified her accomplice. 174 The Appeals Court held that the detention of the woman was fully justified as an investigative stop or threshold inquiry, but this fact did not “insulate it from the possible application of Miranda principles.” 175 “The crucial question is whether, considering all the circumstances, a reasonable person in the defendant’s position would have believed that [she] was in custody.” 176 In Commonwealth v. Gordon, supra, the Appeals Court acknowledged that Miranda warnings ordinarily are not required during a traffic stop, but are required once the suspect’s freedom of movement is curtailed to the same extent as occurs during an arrest. 177 The Appeals Court concluded that “the combined indicia of handcuffs and restraint in the back of a police cruiser attain the level of custody associated with formal arrest. Miranda warnings therefore should have preceded any interrogation.” 178 The remainder of the analysis by the Appeals Court in Gordon is instructive: The fact that Captain Botieri’s question was introductory does not automatically cause it to be classified as merely “preliminary” and not interrogatory for Miranda purposes. At the time of the question, the police knew enough about the defendant and the robbery for an objective suspicion to have fallen on her. The captain’s question explored that suspicion, and, while he was doubtless surprised that the defendant broke down and, in effect, confessed so early in the interrogation, the fact remains that the responsive answer to his question was a confession. Although introductory, the question was objectively designed “to elicit an incriminating response from the suspect.” 179 When a person is briefly detained and questioned by the police on or near the premises or location where a search warrant is being executed the restraint on his or her liberty is “substantially less intrusive” than that associated with custodial police interrogation and therefore such brief detentions do not require the administration of Miranda warnings before the person is questioned. 180 A telephone interview of the defendant conducted by the police does not constitute a custodial interrogation. 181

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§ 2.2.6

POLICE INTERROGATIONS AND CONFESSIONS

Custody Does Not Turn on Whether the Defendant Is the Focus of the Police Investigation

In Escobedo v. Illinois, 182 decided two years before Miranda, the Supreme Court relied on the Sixth Amendment in concluding that a person had a right to counsel prior to the commencement of adversary judicial proceedings whenever the police investigation focused on the person as a suspect. The Escobedo decision has been limited to its facts, and the “focus” test was superseded by Miranda’s concept of “custodial interrogation.” 183

§ 2.2.7

Mere Existence of Probable Cause Does Not Mean the Person Is in Custody

Simply because the defendant is at the police station and police have probable cause to make an arrest and the intention to arrest the defendant does not mean the defendant was in custody when questioned by the police. 184 In Commonwealth v. Burbine, 185 the police were given a duffel bag by the defendant’s girlfriend after they responded to a domestic disturbance and following the defendant’s departure from the home. The police discovered the bag contained firearms. They contacted the defendant and advised him to come to the police station to retrieve some “personal property” without indicating they had received the duffel bag. The police met the defendant outside the police station. The police were in uniform, but did not display their guns or make any show of force. When asked if the firearms given to the police belonged to him, the defendant replied “yes” as to all but one gun. In rejecting the argument that he was in custody, the Appeals Court observed that “although the defendant was likely going to be arrested for weapons violations, he would not have reasonably held the view that he was in custody. This case is analogous to the cases in which we have held that an officer who has evidence that a driver is intoxicated is still permitted to ask questions without Miranda warnings.” 186

§ 2.2.8

Mere Existence of a Warrant or Complaint Does Not Mean the Subject Is in Custody

Simply because a warrant or complaint has been issued does not mean that the defendant was in custody when questioned by the police. 187 For example, in Commonwealth v. Ryan, 188 during a telephone conversation with the police after the defendant learned that a warrant for his arrest had been issued, he made incriminating statements in response to police interrogation. The statements were 2–34

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admissible even though no Miranda warnings had been given because he was not in custody. 189

§ 2.2.9

Custody Does Not Depend on the Subjective View of the Police

In Stansbury v. California, 190 the Supreme Court observed that “a police officer’s subjective view that the individual under questioning is a suspect, if undisclosed, does not bear upon the question whether the individual is in custody for purposes of Miranda. . . . Save as they are communicated or otherwise manifested to the person being questioned, an officer’s evolving but unarticulated suspicions do not affect the objective circumstances of an interrogation or interview, and thus cannot affect the Miranda custody inquiry.” 191 Thus, the mere fact that the police expect the suspect will make an incriminating response “does not necessarily elevate the nature of questioning to a custodial level.” 192

§ 2.2.10 Custody Is Not Limited to the Environment of the Police Station Although many police interrogations take place in the station house, the Supreme Court has not limited the application of the Miranda doctrine to that setting. 193 This topic is discussed further in subsection 14 infra.

§ 2.2.11 Miranda Warnings May Be Given as a Precaution Miranda warnings may be given to a person as a precaution, and that alone does not make the interrogation custodial. 194 The SJC has encouraged police to give Miranda warnings prior to the point at which an encounter becomes custodial rather than “wait until the exact moment when the warnings are constitutionally required.” 195

§ 2.2.12 An Incriminating Response Does Not Establish that the Setting Is Custodial The mere fact that the person being questioned makes an incriminating response does not transform the encounter into custodial interrogation. 196 However, an incriminating response may weigh heavily in the determination that a reasonable person in the position of the defendant did not feel free to leave a police interview. 197

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§ 2.2.13 Questioning at the Police Station (a)

Police Station Questioning that Is Custodial

Questioning of a person under arrest and at the police station is the quintessential example of custodial interrogation. “[T]here is a particular coercive element inherent in an interview at a police station.” 198 “The stationhouse atmosphere is generally most conducive to successful interrogation because the investigator possesses all the advantages.” 199 The fact that the police are motivated by humanitarian concerns does not detract from the coercive nature of the environment nor relieve the police from the obligation to administer Miranda warnings. 200 The involuntary transportation of a suspect to the police station for questioning in the absence of probable cause requires that any subsequent statements made by the individual must be suppressed unless the government proves that the statements were an act of the individual’s free will and purged of the taint of the initial police illegality. 201

(b)

Police Station Questioning that Is Not Custodial

Not all questioning at the police station will be deemed custodial. 202 An otherwise noncustodial interview at the police station will not be deemed custodial simply because the police suspect the individual is involved in criminal activity. 203 When a person is asked to go with the police to the station, the determination of whether any questioning by the police is custodial will turn on factors such as whether the defendant is handcuffed or restrained in any way, how many officers are involved, and whether the defendant is told he is free to leave at any time. 204 The mere fact that the police give Miranda warnings to the defendant does not convert the situation into a custodial setting. 205 It also is significant to consider the formality or informality of the interview, whether it is the police who want the defendant to come in for questioning or whether the request is initiated by the defendant, and whether the defendant was allowed to leave the police station at the end of the interview. 206 However, even a recorded interview late in the evening concerning a missing person is not necessarily custodial. 207 Police are not required to stop a person who enters a police station and states that he wishes to confess to a crime. A statement made by such a person will not be regarded as the product of custodial interrogation simply because it was made at the police station. 208

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(c)

§ 2.2

Analytical Framework for Determining the Custody Question in the Setting of a Police Station

Questioning at the police station can begin in circumstances in which it is not custodial, but then evolve into circumstances in which it is custodial. 209 In Commonwealth v. Hilton, 210 the SJC provided a comprehensive analysis of the factors that must be considered in determining whether a station house interrogation is custodial. The defendant voluntarily accompanied the police to the station. Her interview just two days earlier had been conducted at the same station (indeed, in the very same room), and she had left the station at the conclusion of that earlier interview without being arrested. Upon her arrival at the station on the day she made her confession, she was left by herself in the interview room. Although the police were suspicious of the defendant’s possible involvement in the fire, they did nothing to convey any such suspicion at the start of the interview. The police had by then eliminated Loayza as a likely suspect based on his alibi, but that change in Loayza’s status was never communicated to the defendant, nor was she apprised of her son’s alibi. The defendant previously had been led to believe that the police viewed Loayza as the likely perpetrator, and their prior questioning had reflected their interest in finding out more about her son. From the defendant’s perspective, the same appeared to be the case with respect to the initial phases of the interview of February 27. The tone and style of the questioning, according to the judge’s findings, was neither aggressive nor confrontational. There is nothing on this record to suggest that the questioning of the defendant started out as a custodial interrogation. Where, as in Commonwealth v. Hilton, supra, the police station interview begins as a non-custodial event, but eventually turns into a custodial interrogation, the question becomes at what point during the encounter did it become custodial. In Hilton, supra, the SJC explained that simply because a police officer accompanied the person being questioned to the bathroom did not mean that she was in custody because it was as likely that the escort was intended to insure the person’s privacy (the only toilet was unisex). Additionally, even when the police 2012 Edition

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questioning for the first time suggested that the person might be a suspect, it did not become custodial. During the next phase of the interview, the officers began to reveal some degree of suspicion concerning the defendant, although they stopped short of an outright accusation. When they suggested the “possibility” that she may have set the fire, the defendant denied any such suggestion, explaining that she would not have done anything to hurt her own grandchildren. The officers then took another break and left the defendant by herself in the interview room for approximately five minutes. At that juncture, the officers still lacked grounds to arrest the defendant, left her on her own, and did nothing that would suggest she was not free to leave. 211 Even when the questioning elicits an incriminating response, the law does not “freeze frame” the encounter and treat that moment and everything thereafter as a custodial interrogation. As the SJC explained in Hilton, The defendant’s confession began during the next segment of the interview, in response to the officer’s “sympathetic” suggestion that she “tell [them] what happened.” As a suspect makes incriminating statements, a previously noncustodial setting can become custodial—a person who has just confessed to a crime would reasonably expect that she was no longer free to leave. However, an interview does not automatically become custodial at the instant a defendant starts to confess. There is no requirement that officers interrupt a suspect in the course of making a volunteered statement to recite the Miranda warnings. In Commonwealth v. Bryant, 390 Mass. 729, 733 (1984), the defendant blurted out that he had committed the crime (“I did it, I shot him”) while talking with a police officer at the defendant’s home, and, after a brief pause and the officer’s asking the defendant “if he would like to tell me about it,” proceeded to make a detailed confession. The setting had been noncustodial, but the defendant argued that that first inculpatory remark operated to change the encounter to a custodial interrogation. We rejected the argument. Although the statement, “I did it, I shot him,” 2–38

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immediately gave the officer probable cause to arrest, and the officer presumably would not have honored any request by the defendant that he leave, the issue was whether anything had resulted in a “fundamental transformation in the atmosphere of the defendant’s home in the fifteen seconds between the defendant’s initial statement and the more detailed confession.” Id. at 738-39. We refused to “freeze-frame” the encounter at the moment of the initial inculpatory statement, but rather looked to whether the giving of that statement had resulted in some difference in how the defendant was treated and questioned. Here, we similarly decline to “freeze-frame” the instant when the defendant first made an inculpatory remark to the effect that her son would hate her and never forgive her. The officer’s suggestion (“Why don’t you tell us what happened?”), made immediately after that remark, did not result in any “fundamental transformation in the atmosphere” that had preceded it. Id. at 739. The defendant’s confession proceeded, without any change in the tenor of the questioning or any apparent change in her status. Indeed, following that initial confession, the officers again left her alone while they went to get Trooper Condon. 212 Ultimately, as the SJC explained, the questioning by the police in Commonwealth v. Hilton, became custodial: The setting became custodial when Condon was brought into the room and began to question the defendant about the particulars of how she had lit the fire. Condon was introduced to the defendant as someone with expertise in investigating fires, and his questions were based on specific forensic evidence concerning this particular fire. This kind of detailed questioning, with the defendant as the evident focal point of the investigation after her more general confession, transformed the previously sympathetic and nonaccusatory interview into a custodial interrogation. Not surprisingly, that interrogation culminated in the defendant’s formal arrest.

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We therefore conclude that the judge erred in suppressing statements made by the defendant prior to Condon’s arrival, as the defendant failed to demonstrate that she was subjected to custodial interrogation until that time. On Condon’s involvement in the questioning, the interrogation became custodial in nature, thus triggering the requirement that the defendant be given Miranda warnings and make a knowing, intelligent and voluntary waiver of Miranda rights. Where the Commonwealth has failed to meet its burden of proving a knowing and intelligent waiver of rights, the defendant’s statements made in the final phase of the interview were properly suppressed. 213

§ 2.2.14 Questioning a Person at Locations Other than the Police Station (a)

Home

Ordinarily, questioning of a defendant in her home, unlike a police station or place of detention, is not considered custodial interrogation because the home environment lacks the coercive characteristics of the environment inside a police station. 214 When the defendant invites the police to come to his home or place of work and, after questioning ends, the police leave without arresting the defendant, his statements will not be regarded as the product of custodial interrogation. 215 However, a “measure of physical oppressiveness caused by the presence and deployment” of officers in an individual’s home may give rise to a custodial environment. 216 The phrase used in many decisions to describe the circumstances in which interrogation of a suspect inside his home becomes custodial is “police dominated atmosphere.” 217 In Commonwealth v. Bryant, 218 the police were investigating the murder of a man who had been dating a woman with whom the defendant was in love, and who had refused to date the defendant. The defendant was a suspect, and had willingly met with and answered police questions on several occasions. A new police chief came along and decided to make an appointment to speak to the defendant at his home. The defendant agreed without reservation. After drinking some coffee and chatting informally at the kitchen table, the defendant “blurted out” that he committed the crime. The SJC held that in the totality of the circumstances, the follow up question [would you like to tell me about it?] followed by confession was not custodial interrogation: 2–40

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The defendant’s unadorned statement that he had committed the crime undeniably served to sharpen substantially his status as a suspect. We assume that immediately following the statement the police chief had probable cause to arrest Bryant. We also assume, without deciding, that the chief would not have honored a request from the defendant to leave his home. However, we are unable to discern any fundamental transformation in the atmosphere of the defendant’s home in the fifteen seconds between the defendant’s initial statement and the more detailed confession. Although the police chief’s questioning of the defendant certainly constituted “interrogation,” it was nonaccusatorial, an inquiry as to whether the suspect had anything more to say. The police chief did not “bear down” on Bryant. There is no evidence from which we can conclude that the defendant was either mentally or physically intimidated. We do not read Miranda v. Arizona, fashioned to alert suspects confined in an adverse environment of their privilege to resist probing interrogation, to require reversal where a police officer surprised at a response does not reflexively advise a suspect being interviewed at the suspect’s home of the Miranda warnings immediately upon obtaining an inculpatory response. 219

(b)

Hospital

When Defendant Is the Person Being Treated It is not uncommon for police interviews to take place at a hospital where a person has been taken for treatment. If the person is under arrest, the hospital setting does not alter the fact that the person is in custody and any questioning by the police or their agents will be regarded as custodial interrogation. In circumstances in which the person is not under arrest, the question of custody will be determined by a consideration of the analytical factors discussed above in Section § 2.2.3, supra. 220 For example, in Commonwealth v. Mejia, 221 the police found the decomposing bodies of the defendant’s wife and two children in their apartment. “The mother had multiple stab wounds, her throat was slashed to the spine, and she had blunt force trauma to the head. She died of blood loss and blunt force injury. Her body was found under various items in a bedroom closet. Her head was wrapped in a 2012 Edition

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plastic bag and there was a gag in her mouth.” 222 The two daughters died of manual strangulation and asphyxiation. The defendant, who lived and worked in the vicinity, had been taken by ambulance from the vicinity based on his strange behavior. The SJC described the encounter between the police and the defendant as follows: After the bodies of the victims were discovered, approximately eight police officers went to the hospital where the defendant was a patient. Five of them waited downstairs. One detective, Edward F. Sierra, who spoke Spanish and was in plain clothes, went to the defendant’s room. The defendant was dressed in street clothes and seated on his hospital bed. Without identifying himself as a police detective, Sierra asked the defendant whether he would speak to him in “a more private setting.” The defendant was not restrained. He followed Sierra to a conference room that contained a table and chairs and was located “down the hall.” Once they entered, the detective identified himself and introduced a police detective and a police sergeant who were already in the room. He then told the defendant that they wanted “to talk to him about something that happened on Pearl Street.” Sierra did not give a particular address or details about what they wanted to discuss. 223 Following detective Sierra’s question, the defendant became agitated and engaged in certain behaviors consistent with a consciousness of guilt. Thus, the question faced by the SJC was whether the defendant was in custody during the brief interview before he was formally arrested shortly thereafter. The Court applied the traditional, four part analytical test described above, see § 2.2.3, and concluded that the defendant was not in custody. The Court noted that the defendant voluntarily accompanied Sierra to the conference room, which was a neutral location. He was not restrained until officers became concerned for his safety. Although Sierra knew that police were seeking an arrest warrant for the defendant and admitted on crossexamination that there was probable cause to arrest, these suspicions were never communicated to the defendant. The questioning was brief and not aggressive, limited to Sierra’s single statement that police wanted to talk to the defendant about what “happened 2–42

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on Pearl Street,” and Sierra’s question whether the defendant knew why he was in the conference room. 224 In Commonwealth v. LaFleur, 225 the police officer who responded to the scene of a two-car accident observed the defendant slumped over in his vehicle with a head wound. After the defendant was attended by EMT personnel and strapped to a stretcher, the officer asked him if he had consumed any alcohol and whether it affected his ability to operate a motor vehicle. The defendant made incriminating responses. In concluding that the defendant was not in custody, the Appeals Court offered this helpful analysis: Courts in other jurisdictions have addressed whether a suspect who is restrained for medical treatment by medical personnel must be informed of his Miranda rights before he is subjected to questions from police officers. These cases generally hold that there is no custodial interrogation in these circumstances. See, e.g., Wilson v. Coon, 808 F.2d 688, 690 (8th Cir. 1987). See also People v. Mosley, 73 Cal.App.4th 1081, 1090-1091 (1999); Connecticut v. DesLaurier, 230 Conn. 572, 580-581 (1994); New Hampshire v. Tucker, 131 N.H. 526, 530 (1989). A few earlier decisions reached the opposite conclusion. See, e.g., Robinson v. State, 45 Ala. App. 74 (1969); Commonwealth v. D’Nicuola, 448 Pa. 54 (1972). A particularly cogent explication of the principles involved appears in Wilson v. Coon, 808 F.2d at 689, a widely cited case with facts similar to those presented here. In that case, a police officer arrived at the scene of a two-car collision and saw the defendant crawling around at the bottom of an embankment and “belligerently refusing medical attention.” The officer assisted the medical attendants, and while one of them restrained the defendant and examined him for injuries, the officer asked the defendant if he was the driver of one of the cars. In Wilson, the Eighth Circuit Court of Appeals emphasized that a reasonable person would expect that restraint by ambulance personnel would “last only for the time that is medically necessary and would feel free to leave after then.” Moreover, as the physical restraint on the defendant was applied by ambulance attendants for medical purposes, rather than by law 2012 Edition

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enforcement officers for investigative purposes, “[a] reasonable person would perceive this detention as imposed only for purposes of a medical examination, not a police interrogation.” Id. at 690. Finally, the detention’s occurring in public and in the presence of medical attendants “reduces the likelihood that law enforcement agents will use oppressive or abusive tactics and renders the situation less ’policedominated.’” Ibid. The court concluded that the concerns triggering Miranda protections — that compelling and lasting pressure would work to undermine the individual’s will to resist questioning—were therefore not present. The insights of Wilson inform the application of the familiar four factors to the issue whether the defendant in the instant case was in custody when questioned. See note 2, supra. (1) The questioning occurred in public and EMT personnel were present thereby diminishing the possibility of police domination. See Miranda v. Arizona, 384 U.S. at 445. Officer Joy was also apparently the only police officer present during the questioning. (2) Joy did not convey to the defendant that he was suspected of a crime. (3) The interrogation was brief and “influenced in its contours” by what the defendant told the EMT personnel. (4) Finally, a reasonable person in the defendant’s position would have understood that his detention was by medical personnel for medical purposes, and its length would therefore be determined by his medical condition, not by his refusal to provide answers to questions posed by Officer Joy. As a result, a reasonable person in the defendant’s position would not have felt compelled to answer the officer’s questions while he was confined to the stretcher. We conclude that the defendant’s physical restraint by the EMTs did not create an inherently coercive, policedominated situation, and the protections of Miranda were not triggered. Commonwealth v. Bryant, 390 Mass. 729, 737-38 (1984). 226

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When Defendant Is Not the Person Being Treated In Commonwealth v. Cutler, 227 the Court held that Miranda was not applicable to general questioning of father at hospital while his son was still alive and was being treated for injuries that the father initially said had occurred in a fall.

(c)

Interviews of Persons Confined in Correctional Institutions

Neither Pretrial nor Postconviction Confinement Is Per se Custodial for Purposes of the Miranda Doctrine In Mathis v. United States, 228 an inmate was serving a sentence in a state prison. He was visited by an IRS agent who had him brought out of general population to a locked interview room where the agent questioned him about tax refunds he had claimed on his individual income tax returns, offenses unrelated to the crimes for which he had been convicted. The agent did not read the inmate his Miranda rights prior to obtaining documents and oral statements that were subsequently used to convict the inmate of knowingly filing a false claim. The Supreme Court reversed the conviction and held that Miranda warnings should have been given to the suspect. In Howes v. Fields, 229 however, the Supreme Court assigned to Mathis a very narrow holding by declaring that it only means that in the prison setting Miranda is not inapplicable simply because a criminal investigation is not underway at the time of the interview and the prisoner was incarcerated for an unrelated matter. 230 “Mathis did not hold that imprisonment, in and of itself, is enough to constitute Miranda custody.” 231 The Supreme Court further observed that such a rule is not required by Miranda. 232 In Howes, the Supreme Court reversed the Court of Appeals and upheld the judgment of the state courts that a Michigan state prisoner who was removed from his cell without prior notice and taken to a private conference room inside the prison where he was questioned for between five and seven hours by armed police officers but without restraints of any kind, in circumstances in which he was told he was free to leave at any time, was not in custody for purposes of Miranda. 233 The Court explained that the “[r]elevant factors” include “the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning.” The “[r]elevant factors” outlined by the Supreme Court in Howes v. Fields are as follows: “the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning.” 234 Howes rests on the view that “[w]ithout minimizing the

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harsh realities of incarceration, lawful imprisonment imposed on conviction of a crime does not create the coercive pressures identified in Miranda.” 235

The “Totality of the Circumstances” Test In Commonwealth v. Girouard, 236 the police visited the defendant who was being held on a parole violation to question him about an old homicide. The interview took place in an interview room within the general population area. 237 Miranda warnings were administered and the defendant agreed to speak with the police. During the interview the defendant made incriminating statements and stated that if he was under arrest he wanted an attorney. When the police asked the defendant if he wished them to leave, the defendant once again asked if he was under arrest. The police said he was not but that they would pass any information on to the district attorney. The defendant then agreed to make a statement. On these facts, the SJC concluded that the interrogation was not custodial. The mere fact that a person is incarcerated does not automatically render that person “in custody” for Miranda purposes. Commonwealth v. Larkin, supra at 434-35, and cases cited. Rather, in such circumstances, it must be determined, from the totality of the circumstances, “whether the prisoner would reasonably believe himself to be in custody beyond that imposed by the confines of ordinary prison life.” Commonwealth v. Larkin, supra at 435. “The defendant bears the burden of proving custody.” Commonwealth v. Larkin, supra at 432. The judge’s finding, that the defendant was not in custody when questioned, is consistent with the Larkin decision and is supported by the record. See Commonwealth v. Larkin, supra at 435-36 & nn. 6, 7. The defendant’s arguments to the contrary, that he was in custody because, in contrast to Larkin, “there was no evidence that the defendant was told ‘that he did not have to meet with the troopers at all,’” and that there was no evidence that the defendant “could end the interview at any time by signaling a correction officer in sight at all times,” ignore the fact that the defendant bears the burden to prove that he was in custody. The defendant did not proffer any evidence that he had been forced to meet with the officers, nor did he proffer any evidence that he was not able to end the interview. 238

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(d)

§ 2.2

School

“A trip to the principal’s office for an interview is not a ‘formal arrest,’ nor does it suggest to the student that he or she faces such an arrest. It is unrealistic to expect school officials who are responsible for addressing student behavioral issues to refrain from investigating allegations of students’ harming each other, and the mere fact that such officials are in positions of authority over students does not transform every interview of a student into a custodial interrogation.” 239 An interview of a student at school may be deemed custodial interrogation even if conducted by teachers and school administrators if there is participation by or the presence of law enforcement officers. See Elizabeth A. Brandenburg, “School Bullies: They Aren’t Just Students: Examining School Interrogations and the Miranda Warning,” 59 Mercer L. Rev. 731 (2008).

(e)

Courthouse

A defendant who is in a courthouse to visit with someone or to observe the proceedings and who is questioned by the police is not for that reason in custody. 240

(f)

Lawyer’s Office

In Commonwealth v. Simon, 241 the police received information which led them to have reasonable grounds to believe that the defendant had shot two brothers at their home in Winchester. One of the brothers died from his wounds. The State Police followed the defendant from Medford to a location in Boston where he parked his car. The defendant got out of his car and was talking on his cell phone. The police approached, and pat frisked him. The defendant said he was talking to his attorney and that he did not want to speak to the police until his attorney arrived. A few minutes later the attorney appeared. The police stated that they wanted to speak to the defendant about an “incident in Winchester.” The attorney said he and the defendant were going to go upstairs to his office (it was in a nearby building) and that he would advise the police if his client would speak to them. After about forty-five minutes, the police learned that the surviving victim had identified the defendant as the shooter. As troopers went upstairs to arrest the defendant, another officer called the attorney and learned that the defendant would speak to them. The troopers sent to make the arrest were instructed not to handcuff the defendant. The state police met with the defendant and his attorney in the attorney’s conference room. 242 The police explained in conversational tones the basic facts about the shooting, that the survivor had identified the defendant as the shooter from a photographic array, and that one of the victims had died from his wounds. The defendant was not advised of his Miranda warnings by the police and his counsel did not state he 2012 Edition

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had advised his client of his Miranda rights. The defendant denied any involvement in the incident and provided an alibi for the time in question. A short time later, defendant’s counsel ended the interview and the defendant was arrested. 243 The SJC held that “even though the interview took place in the defendant’s attorney’s office, lasted for no more than five or ten minutes, and was conducted in a conversational tone, a reasonable person in the defendant’s position would not have believed he was free to leave. In addition, the defendant was arrested at the conclusion of the interview. Therefore, the motion judge was correct in concluding that the defendant was in custody when he made the statements he seeks to suppress.” 244

(g)

Police Cruiser

A defendant who voluntarily enters a police cruiser to converse with the police, no less than a defendant who voluntarily accompanies the police to the police station, is not in police custody. 245

(h)

Public Place

Questioning of defendant in police station parking lot was not custodial even though the police suspected that he was the owner of certain guns he was carrying in a paper bag and would be arrested. 246 “Here, the atmosphere surrounding the officer’s questions was neither coercive nor intimidating.” 247

§ 2.3

THE MEANING OF “INTERROGATION” FOR MIRANDA PURPOSES

§ 2.3.1

Definition—Express Questioning or Its Functional Equivalent

Interrogation for Miranda purposes is defined as “express questioning or its functional equivalent.” 248 The term “functional equivalent” is defined broadly to include any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect, including “psychological ploys.” 249 On the other hand, “[i]f a statement is spontaneous and unprovoked, or is volunteered by a defendant without improper probing questioning, then it is not the product of custodial interrogation.” 250

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“[An] ‘incriminating response’ . . . [is] any response—whether inculpatory or exculpatory—that the prosecution may seek to introduce at trial.” 251 However, the intent of the police has some relevance because it may indicate whether the police should have known that their words or actions would produce an incriminating response. 252 The mere fact that the police have a legitimate, subjective motive that is unrelated to obtaining an incriminating response (such as to explain how the interrogation procedure will be conducted) is not determinative because the test is objective in nature—how did the person in custody perceive the questioning or statements made by the police. 253 For example, in Commonwealth v. Chipman, 254 the defendant was in custody, had been advised of his Miranda rights, and had indicated he had nothing to say to the police. While he was being driven back to the state police barracks, the defendant asked why he was being described as armed and dangerous on the news. The police told him it was because the rifle was still missing. The defendant, in turn, responded that “I don’t have any rifle. Those guys were supposed to have buried that gun.” The SJC held that the defendant’s statements were volunteered and not the product of interrogation. On the other hand, in Commonwealth v. Barros 255, prior to giving any Miranda warnings, the police asked the defendant if he owned a paint ball gun. The police knew that evidence of paint ball use had been found at the crime scene. The question was thus designed to elicit an incriminating response. The question led directly to the defendant showing the officers to his room. The evidence discovered as a result of this violation was directly caused by the custodial interrogation and must be suppressed. 256 It is not uncommon for police-citizen encounters to take place on the street based on a hunch, or an unconfirmed tip that the individual is unlawfully in possession of drugs, carrying a firearm, or otherwise involved in criminal activity. In such situations, the issue is whether preliminary questions by the police about whether the defendant is “carrying something” or words to that effect constitute custodial interrogation. In Commonwealth v. DePeiza 257, the SJC answered the question in the negative: The defendant argues that he was the subject of a custodial interrogation because the entire encounter was “police-dominated,” and because when Officer Bickerton asked if he had a firearm the officer effectively communicated to the defendant that he was suspected of committing a crime. We conclude that these elements of the defendant’s encounter with the police do not transform it into a custodial interrogation. Officer Bickerton did not imply that the defendant was 2012 Edition

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suspected of a crime merely by asking if he was carrying a gun. Carrying a firearm is not a crime, and the defendant does not suggest any other criminal conduct of which he was suspected. Nor is the defendant’s description of the encounter as “police-dominated” an accurate one. The motion judge found that the tone of the officers was conversational throughout, and at no point did the interaction become aggressive. The defendant points to no words or actions of the officers that could have transformed the nature of the encounter from informal to aggressive. Miranda warnings were not required between the announcement of the patfrisk and the frisk itself. To the extent that any statements made during that interval were admitted at the defendant’s trial, there was no error.

§ 2.3.2

Determination of Interrogation Is Based on an Objective Test

The functional equivalence test does not turn on the subjective intent of the police officer, but rather on the “perceptions of the suspect.” 258 In Torres, the SJC explained what objectivity means in this context. One commentator has suggested that “the best reading of the Innis test is that it turns on the objective purpose manifested by the police. Thus, an officer ‘should know’ that his speech or conduct will be ’reasonably likely to elicit an incriminating response’ when he should realize that the speech or conduct will probably be viewed by the suspect as designed to achieve this purpose. To ensure that the inquiry is entirely objective, the proposed test could be framed as follows: if an objective observer (with the same knowledge of the suspect as the police officer) would, on the sole basis of hearing the officer’s remarks, infer that the remarks were designed to elicit an incriminating response, then the remarks should constitute ’interrogation’” (emphasis in original). 259 In order to determine whether a suspect has been subjected to custodial interrogation, the primary focus is on the suspect’s perceptions and not the police officer’s unexpressed intent. 260 “[T]he mere fact that a police officer may be aware 2–50

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that there is a possibility that a suspect may make an incriminating statement is insufficient to establish the functional equivalent of interrogation.” 261 Under an objective test, when the police know enough about a suspect who is in custody and her connection to a crime under investigation to consider the person a suspect, the court will consider questions about the person’s whereabouts or activity to be the functional equivalent of interrogation. 262 On the other hand, a preliminary question (what do you know about a man who was in the street?) put to a person who the police approached after a citizen’s tip that he had been seen with others dragging a body away from the street was not interrogation. 263

§ 2.3.3

Spontaneous and Volunteered Statements

In Miranda, the Supreme Court explained that the Fifth Amendment is not implicated when a person volunteers information. “Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” 264 Even when a person is in custody in a police station, volunteered statements are outside the protections of the Miranda doctrine. 265 Statements are no less volunteered because they are made in response to conversations overheard by the defendant in the police station. 266 Likewise, the law does not impose any impediment to volunteered statements by persons who are confined to a correctional institution. For example, in Commonwealth v. Koumaris, 267 an inmate at a correctional institution asked to speak to a corrections officer. [T]he defendant argued that because he was in handcuffs throughout the entire “questioning” by correction officers, which limited his ability to leave the interview room, he was subject to custodial interrogation for Miranda purposes. The defendant’s argument fails because, unlike the defendant in Larkin, [Commonwealth v. Larkin, 429 Mass. 426 (1999)] the undisputed facts make clear that, in this case, the defendant was never interrogated by the correction officers. To the contrary, the defendant was not subjected to “either express questioning or its functional 2012 Edition

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equivalent.” Commonwealth v. Painten, 429 Mass. 536, 541 (1999), quoting Commonwealth v. Torres, 424 Mass. 792, 796-97 (1997). The defendant initiated the entire course of events. It was only in response to his insistence that he talk to an officer that evening that Souza responded, “Go ahead. Tell me what you got to say.” The defendant then proceeded to do what he had told Souza he wanted to do—get something off his conscience. Only after the defendant had confessed, did Souza ask one question (regarding the whereabouts of the knife). The same principle applies when the defendant is in custody and awaiting trial or serving a sentence. 268 A question, in the context of a conversation, may be a “reflexive response” and not an actual interrogatory. 269 A defendant’s statement is no less spontaneous when it is volunteered after the defendant has invoked the right to remain silent or the right to counsel. 270 Likewise, a volunteered statement is admissible even though the defendant has contacted a lawyer and is waiting for the lawyer to arrive at the police station. 271

§ 2.3.4 (a)

Police Questions and Statements that Are Not Interrogation Questions or Statements Required to Be Asked or Made by State Law

Words spoken by the police, even in the form of a question, that are required by state law to be directed to a person in police custody and under arrest that are designed to inform the person of his or her rights or obligations, such as the obligation to be fingerprinted and photographed, G.L. c. 263, § 1A, the right to make a telephone call under G.L. c. 276, § 33A, to an independent medical examination under G.L. c. 263, § 5A, or to a breathalyzer test under G.L. c. 90, § 24, are not regarded as interrogation for purposes of Miranda. 272 However, not every effort by the police to explain the law will be deemed permissible. In Commonwealth v. Chadwick, 273 the Appeals Court addressed a related problem. The defendant was advised of his Miranda warnings, signed a written waiver and shortly thereafter placed under arrest during an interview at the district attorney’s office. The defendant was charged with the rape and sexual 2–52

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abuse of his daughters. He asked to speak to an attorney. Questioning ceased. The defendant tried without success to telephone an attorney. Before being transported to the jail, the Defendant asked Sergeant VonFlatern if he was going to the House of Correction. He was told that he was. The Defendant then stated that he knew that he did not rape his daughter. Sergeant VonFlatern replied as follows: ’I will tell you one thing, but this is not meant to be a question. Rape is not always what people think and things like oral sex are rape.’ The Defendant then replied, ’Well I don’t know where I go from here, because if that’s considered rape then I guess I’m guilty.’” 274 On appeal, the question was whether the police officer’s explanation of rape constituted an interrogation in violation of the Edwards rule which forbids interrogation after the defendant requests to consult with an attorney. The Appeals Court upheld the decision by the trial judge to suppress the defendant’s response. We agree and add the following observations. The principle of Edwards v. Arizona, supra, has been called a “bright line” and “prophylactic” rule. United States v. Browne, 891 F.2d 389, 394-95 (1st Cir. 1989). But this safeguard will be neither clear nor protective if its applicability comes to depend upon case-by-case nuanced judgments of police officers. Moreover, there is often the possibility that a successful circumvention of the principle will yield something useful, and that temptation is corrupting. Therefore, the correct rule, we think, is that, when a suspect in custody asks for a lawyer, discussion of the charge should cease unless that suspect changes his mind, either in so many words or by conduct clearly to that effect. 275

(b)

Conversation About Matters Unrelated to Crime

Sometimes, an incriminating response by a person in custody may follow from a comment or question by the police about a matter entirely unrelated to the investigation. In such circumstances, the defendant’s statements are not the product of interrogation. 276

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(c)

POLICE INTERROGATIONS AND CONFESSIONS

Clarifying Remarks by the Police

The SJC has endorsed the practice of attempting to clarify whether the defendant’s words or conduct indicate a desire to assert his Miranda rights when in the circumstances a reasonable person in the police officer’s position would not know what the defendant intended to communicate. 277 “An important corollary, however, is that where the initial request to invoke the right to remain silent is clear such that a reasonable police officer in the circumstances would understand the statement to be an actual invocation, ‘the police may not create ambiguity in a defendant’s desire by continuing to question him or her about it.’” 278 The same rule applies to an initial request to invoke the right to counsel. See Commonwealth v. Santos, 463 Mass. 273 (2012). For example, in Commonwealth v. Nom, 426 Mass. 152 (1997), the defendant made inculpatory statements about his role in a murder after receiving Miranda warnings but then asked for an attorney when the police said they were going to test his hands for blood. The questioning ceased and the technician left the room. The defendant then spontaneously said “I admit it. . . .” The police officer responded by stating “What?” The defendant replied that he had been out with his wife on the night in question at a particular restaurant. When another officer reentered the room, the first officer asked the defendant to repeat his last statement. And he complied. The second officer then asked why he wanted an attorney. The SJC concluded this question about counsel was not further interrogation in violation of the Edwards rule because it was designed to clarify what seemed to be ambiguous responses by the defendant (I want an attorney; I admit it). 279 The police also have the right to ask a clarifying question when during custodial interrogation a suspect requests an attorney but then, without any further questioning or prompting by the police, the suspect makes additional statements that “qualify the request” (e.g., by indicating he or she only wants an attorney if the police continue to question him or her about a specific matter or aspect of the inquiry). “In such circumstances, an interrogating officer must cease the interrogation, but is entitled to ask a question to clarify the defendant’s intent. . . . [N]othing further should be asked unless the suspect responds to the question in the negative.” Commonwealth v. Santos, 463 Mass. 273 (2012).

(d)

Questions Designed to Test Defendant’s Competency

“Ordinarily direct questioning would implicate Miranda concerns that interrogation and custody would ‘subjugate the individual to the will of his examiner’ and undermine the privilege against self-incrimination. 280 It may be, however, that questions for the purpose of ascertaining whether the defendant is aware of his

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surroundings and can understand the Miranda warnings are in the same category as routine booking questions.” 281

(e)

Recording Information Relating to Defendant’s Telephone Calls

In Commonwealth v. White, 282 the SJC held that the police had a right to ask the defendant if they could record the telephone number called by the defendant after completion of the booking process. “[T]he request for information was not the result of ‘custodial interrogation,’ and thus did not fall within the protection of Miranda v. Arizona, supra, or of art. 12.” 283 The Court explained that “[t]he telephone number an arrestee wishes to call is not inherently incriminating, and thus an arrestee need not reveal any incriminating evidence when the police assist the arrestee in dialing the number. An arrestee may call any number he or she chooses, and need not call the telephone of one likely to be implicated in the crime. Indeed, were we to hold otherwise, we would undoubtedly foster a practice allowing defendants to thwart law enforcement by warning others involved in a joint venture to destroy evidence or act to avoid police detection.” 284 The SJC has also held that “[t]here is no requirement that a defendant be permitted a private telephone call, and a defendant does not have an expectation of privacy in making such a telephone call.” 285 The police and correctional authorities have the right to record telephone calls made by persons in custody (at least those that are not governed by a privilege) so long as appropriate notice is given to the parties. 286

§ 2.3.5

False Statements, Trickery, and Psychological Ploys May Constitute Interrogation

The use of false statements, trickery, or psychological ploys that are likely to elicit an incriminating response constitutes interrogation. 287 “The subjective intent of the police has some relevance but the mere fact that a police officer may be aware that there is a ‘possibility’ that a suspect may make an incriminating statement is insufficient to establish that the statement or ploy by the police is the functional equivalent of interrogation.” 288

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§ 2.3.6

POLICE INTERROGATIONS AND CONFESSIONS

Remarks Overheard by the Police

Statements made by the defendant to third parties and overheard by the police in circumstances in which the police are not unlawfully interfering with any reasonable expectation of privacy are not governed by Miranda. 289

§ 2.3.7

Questioning by the Police Motivated by Humanitarian Concerns

The fact that police questioning may be prompted by humanitarian concerns does not take it out of the scope of the Miranda doctrine. For example, in Commonwealth v. Haas, 290 the SJC rejected the Commonwealth’s argument that the statements made by a husband at the police station after he returned from work to his home, where the bodies of his wife and children were found by the police, and who was denied entry to the home and taken to the police station, were not the product of custodial interrogation. The court found it unnecessary to determine precisely when the defendant was in custody, but found it significant that the questioning took place at the police station. “[T]he Commonwealth’s argument that the police were motivated by humanitarian concerns does not detract from the atmosphere which the law often recognizes as coercive nor does it obviate the need for Miranda warnings.” 291 There is authority in other jurisdictions for the view that custodial questioning by the police when the primary purpose is to address a medical emergency (so called “emergency aid” exception) is outside the reach of the Miranda doctrine. 292

§ 2.3.8

Statements Made While in Protective Custody

“Police may take an individual into protective custody if they possess reasonable suspicion that the person is ‘incapacitated.’” 293 The term “Incapacitated’ is defined as “the condition of an intoxicated person who, by reason of the consumption of intoxicating liquor is (1) unconscious, (2) in need of medical attention, (3) likely to suffer or cause physical harm or damage property, or (4) disorderly.’” 294 The fact that the police take a person into protective custody, instead of making an arrest, is not determinative of whether the person is in custody for purposes of Miranda. 295 “The crucial question is whether, considering all the circumstances, a reasonable person in the defendant’s position would have believed that he was in custody.” 296

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§ 2.3

Public Safety Exception to Miranda

There is an exception to the Miranda doctrine for questioning designed to respond to a public safety emergency such as a missing firearm or other dangerous article where the item may be in a location that makes it an immediate danger to others. 297 “Whatever the motivation of individual officers in such a situation, we do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety.” 298 Massachusetts follows the public safety exception enunciated in New York v. Quarles, supra. 299 The SJC has applied this exception to the Miranda doctrine liberally. For example, in Commonwealth v. Loadholt, 300 the Court held that in circumstances in which a dangerous weapon is in a private versus a public place, the exigency that gives the police the right to ask questions about the location of the weapon without first advising the defendant of Miranda rights does not dissipate as soon as the defendant is arrested or placed in custody. In Loadholt, the SJC applied the Quarles exception to statements by a defendant who was arrested on warrants for offenses involving the use of a firearm after he was found hiding in a closet of his apartment. Although he was placed in handcuffs and under the control of the police, the discovery of hollow point bullets in his pocket created an exigency about the existence of a firearm in the apartment that the Court said was not dissipated by his arrest. 301 In Loadholt, the SJC also expanded the scope of the Quarles doctrine as it had been applied previously in Massachusetts by declaring that the public safety exception applies equally when the danger is faced by the police versus the public. 302 In Commonwealth v. Alan A., 303 the police learned that a juvenile had taken his father’s handgun and had shown it to a female friend who said it was loaded; later police went to female’s home and located the juvenile who was placed in custody and asked about the location of the gun to which he replied “I don’t have it anymore.” In applying the public safety exception, the Court observed that “[a]t the time the officer asked the juvenile the challenged question, the police had not searched the house and, therefore, did not know if the gun was still on the premises or if anyone else, other than Colleen S., was in the house. Further, the judge found that the question was limited in scope and designed to insure that any danger to the police or the public would not result from the concealment of the gun. The question was not asked to obtain testimonial evidence against the juvenile. 304

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The public safety exception is not triggered, however, merely by virtue of the fact that the police question a suspect about the whereabouts of a gun. 305

§ 2.3.10 Police Booking Exception to Miranda Routine questioning during the police booking process are not subject to the Miranda doctrine. 306 Examples of routine booking questions include questions regarding an arrestee’s name, address, height, weight, eye color, date of birth, and current age. 307 The reasoning that supports this exception is that such questions “appear reasonably related to the police’s administrative concerns [and hence] fall outside the protections of Miranda.” 308 The police may ask the defendant whether he or she has been injured because the police may be civilly liable for any physical injury to the defendant after an arrest. 309 Also, “questions for the purpose of ascertaining whether the defendant is aware of his surroundings and can understand the Miranda warnings are in the same category as routine booking questions.” 310 Moreover, if the defendant is advised of his Miranda rights at the scene of the arrest and waives those rights, and is taken immediately to the police station for booking, it is not necessary to re-advise the defendant of his Miranda rights before questioning him further whether for purposes of booking or as an investigatory measure. 311 The police booking exception is not a license for the police to gather evidence that may be useful to prove the case. Thus, questions about whether someone is gainfully employed in order to eliminate a source of money in a case in which they are charged with selling drugs are not exempt from Miranda simply because they are asked during the booking procedure. Likewise, questions about a person’s occupation and whether a weapon was used in the commission of a crime are not pertinent to the booking process. 312 As the SJC has observed, The reasoning of the [Pennsylvania v. Muniz] decision applies with equal force to booking questions about employment in cases involving drug charges. Although a booking officer proceeding down a litany of routine questions may have no investigatory purpose in asking the arrested person how he is employed, the content of that person’s response may be incriminating. For example, in drug cases such as the instant one, an arrestee’s statement that he is unemployed may prove incriminating where the arrestee possessed a substantial amount of cash at the time of the arrest. Further, an arrestee’s employment status seems less relevant to the police in performing their custodial responsibilities than the information gleaned 2–58

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from those questions identified by the Muniz Court. . . as routine booking questions. 313 Likewise, the First Circuit ruled that police questions put to individuals about their citizenship while they were in custody on a U.S. Coast Guard Ship after their British registered vessel caught fire and sank in circumstances in which the suspects were found in possession of bales of marijuana were subject to the Miranda doctrine and not covered by the booking exception. 314 The First Circuit also suggested that a variety of other questions about an arrestee’s age, social security number, and date of birth may be subject to Miranda if “the requested information is so clearly and directly linked the suspected offense that we would expect a reasonable officer to foresee that his questions might elicit an incriminating response from the individual being questioned. 315 A question asked by the booking officer in response to a prompt that appeared on a computerized booking system (“Was a firearm used”), asked in the presence of the defendant and the arresting officer, resulting in a response from the defendant “the dude hit us,” has been deemed interrogation and not simply part of routine booking. “While we accept the finding of the motion judge that Officer Maher’s question was directed at Detective Chace (a fact the judge relied on in concluding that the question did not constitute express interrogation), the mere fact that Officer Maher directed his question to Detective Chace does not address the critical question under [Rhode Island v.] Innis, which is whether a reasonable person in the suspect’s position would perceive the question, even if not directly posed to him, as interrogation.” 316 It is an open matter whether questions during booking about whether the person in custody has used any aliases should be regarded as within the exception. 317

§ 2.3.11 Questions Asked by Persons Other than Police or Their Agents (a)

Applicability of the Miranda Doctrine

The Miranda doctrine, which is concerned exclusively with the protection of the privilege against self-incrimination, applies only when there is “custodial interrogation,” i.e., “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 318 When questioning of a person suspected of criminal activity is carried out by someone other than a police officer or an agent of the government, the compulsion that is necessary to trigger the duty to give Miranda warnings is lacking. 319 2012 Edition

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Private individuals (the defendant’s son and the defendant’s friends) who express a desire to meet with the defendant who is incarcerated and who have a conversation with the defendant were not be deemed agents of the police simply because the police facilitated their visit with the defendant. 320 In Commonwealth v. Allen, 321 the evidence suggested that the defendant shot and killed his wife and her lover from outside her lover’s home. The defendant was arrested at the scene and advised of his Miranda rights. He appeared to have been injured in a fight and seemed confused, so he was brought to the hospital. It was determined that he had shot himself in the head. Emergency brain surgery followed. He was kept under twenty-four-hour police guard at the hospital. One week later, a nurse who was assigned to care for him and who was not an agent of the police questioned the defendant. According to the SJC, she asked him his name and whether he knew where he was, and he responded correctly. He also knew what day it was. The nurse then asked him if he knew why he was there. He answered that he had shot his neighbor and then himself. The nurse asked him where his wife was. He said she was at home. She asked him whether he had any children, and he responded that he had a fifteen year old son. The nurse then asked the defendant why he had shot the man. The defendant responded, “he was always right and I was the bastard.” He went on to say that his wife had sent their son to work on a farm during the summer so she could spend the summer with her boyfriend riding his motorcycle and smoking. The nurse then said to the defendant, “This kind of puts you in a jam,” to which the defendant replied, “I know, but if I had to do it again I would use a [.44] Magnum, not a [.22]. I read a story about a young boy who smashed his father’s car and then when he told his father, the father got very mad and the boy went upstairs and shot himself in the mouth with a [.22] and messed up his brain. That is why I would use a [.44] Magnum next time.” Sergeant Earl Wagner, the police officer who was guarding the defendant at the time, overheard this conversation and wrote down what was said. 322 In rejecting the argument that the defendant should have been advised of Miranda warnings before any questioning by the nurse, the SJC observed that “[t]he Miranda rules do not apply to the activities of a private citizen who is not functioning as an instrument of the police or acting as an agent of the police pursuant 2–60

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to a scheme to elicit statements from the defendant by coercion or guile.” 323 For the same reason, the SJC rejected the defendant’s Sixth Amendment claim. 324 Based on the doctrinal framework outlined in Commonwealth v. Allen, supra, the SJC held a Department of Youth Services manager with law enforcement responsibilities was acting as an agent of the police at the time of custodial questioning and thus was required to obtain a valid waiver of the person’s Miranda warnings before questioning. 325 A school policy whereby information about criminal activity discovered by school officials is turned over to the police is insufficient to transform school officials into agents of the police. 326

(b)

Voluntariness Doctrine

Under federal law, there is no basis to inquire into the voluntariness of a statement made by the defendant to private parties. 327 Under Massachusetts law, on the other hand, “a judge must determine the voluntariness of statements ‘extracted by private coercion, unalloyed with any official government involvement.’” 328

§ 2.3.12 Court Ordered Psychological Examinations (a)

Court-Ordered Mental Health Examinations and the Privilege Against Self-Incrimination

Massachusetts law requires a court to order a mental health examination under G.L. c. 123, §15(a), (b) whenever “there is a substantial question of possible doubt” about the competency of a defendant. 329 Under recent amendments to Mass. R. Crim. P. 14(b)(2)(A), effective September 17, 2012, a court-ordered examination for criminal responsibility may be ordered any time the defendant gives notice of his intention “to introduce expert testimony on the defendant’s mental condition at any stage of the proceedings,” based on “statements of the defendant as to his or her mental condition.” 330 This includes not only expert testimony relating to the defense of lack of criminal responsibility, but also expert testimony relating to the defendant’s ability to waive his or her Miranda rights, to make a voluntary statement, and to form a specific or special intent required for the commission of a certain crime. See Commonwealth v. Ostrander, 441 Mass. 344, 352 (2004), cited in Reporter’s Notes. Statements made by the defendant during the course of such examinations are “testimonial” for purposes of the Confrontation Clause of the Sixth Amendment and Article 12. 331 When the examinations are ordered by the court, there is compulsion which triggers the

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privilege against self-incrimination under the Fifth Amendment and Article 12 of the Declaration of Rights. 332 Because court-ordered mental health examinations implicate the privilege against self-incrimination, the defendant has a right to refuse to participate in such court ordered examinations. 333 The defendant has the right to the assistance of counsel in making this decision, but the right does not extend to the presence of counsel during the interview. 334 The defendant’s refusal may preclude the defendant from offering evidence at trial or sentencing of his or her mental health in the form of expert witness testimony based on his own statements. 335 However, the defendant’s refusal to submit to such an examination does not preclude the use of expert witness testimony that is not based on the defendant’s own statements. If the defendant chooses to participate in a court-ordered mental examination, there must be a procedure employed to safeguard the privilege. This may include Miranda warnings, an adequate grant of immunity, a waiver of the privilege, or some procedure deemed equivalent to the safeguards established by Miranda. 336 Such a procedure was developed by the SJC in Blaisdell v. Commonwealth (discussed in the next subsection) and now is embodied in Mass. R. Crim. P. 14.

Criminal Responsibility When an examination addresses criminal responsibility, a “court-ordered psychiatric examination of a criminal defendant implicates the defendant’s constitutional right against compelled self-incrimination guaranteed by the Fifth Amendment and by art. 12.” 337 “[F]ull cooperation by a defendant with a psychiatrist, who is an agent of the prosecution, may result in confession of the acts charged, probative admissions, leads to the discovery of other inculpatory evidence, information with which to impeach a defendant, and evidence as to a defendant’s mental capacity.” 338 The privilege against self-incrimination is violated even though the evidence obtained during such an examination cannot be used against the defendant at trial, see G.L. c. 233, § 23B, because the compelled production of the defendant’s statements, even to a psychiatrist or psychologist, violates the privilege. 339 In Blaisdell v. Commonwealth, the SJC noted that if the defendant chooses to put his statements into evidence at trial by calling expert witnesses to testify about his state of mind on the basis of his own words, it is tantamount to the defendant taking the witness stand and testifying which would amount to a waiver of his privilege against self-incrimination. 340 In Blaisdell, the SJC fashioned a procedure, now embodied in Mass. R. Crim. P. 14(b)(2) (“Mental Health Issues”), as amended June 26, 2012, that provides that if the defendant gives notice to the government of his or her intention to rely at least in part on his or her own statements made to one or more defense expert 2–62

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witnesses on an issue relating to mental health, the defendant may be required to submit to an examination by an expert witness selected by the Commonwealth. The content and timing of disclosure of such reports is now governed by Mass. R. Crim. P. 14(b)(2)(B)(iii). 341 The SJC distinguishes between pretrial discovery orders that require a defendant to disclose to the prosecution the results of scientific or medical tests such as a computerized axial tomography scan and brain mapping, on the one hand (nontestimonial), and psychological tests that involve assessments based on statements by the defendant that reveal the defendant’s thought processes or state of mind. 342 It is of the utmost importance to keep in mind that despite the great liberalization that has occurred in the law of discovery and the growing practice of “open file” discovery by prosecutors, the Commonwealth has no right to obtain and the court has no right to order the disclosure of the defendant’s statements unless and until there has been a waiver of the privilege by the defendant determined as by applying the guidelines contained in Mass. R. Crim. P. 14(b)(2). 343

Competency Examination In Blaisdell v. Commonwealth, 344 the SJC noted that the privilege against selfincrimination is unlikely to be implicated in a court-ordered competency examination because the purpose of the examination is to assess the defendant’s present capacity, and there is no need to examine historical facts about the alleged crime. 345 This is also true of examinations under G.L. c. 123A. 346 However, during the course of such an examination, the defendant may make statements that are incriminating. In order to safeguard the privilege against self-incrimination, the defendant is not only entitled to the partial immunity provided by G.L. c. 233, § 23B 347, but also is entitled to be safeguarded by the court against any compelled disclosure to the Commonwealth of any reports of such examinations which contain incriminating statements. 348 The trial judge may conduct an in camera hearing with defense counsel present to review any such report that is the subject of discovery in the event there is any uncertainty over whether any statements by the defendant are incriminating. 349 The court is authorized to turn over or order defense counsel to turn over to the Commonwealth redacted versions of such reports. 350 For these reasons, a defendant may be ordered to submit to a competency examination and may be questioned by a court appointed forensic psychologist or psychiatrist without the need to be advised of Miranda rights. Nonetheless, the defendant’s privilege against self-incrimination is fully applicable in such a case and the individual enjoys a right not to speak to the examiner. 2012 Edition

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(b)

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Warnings Required by Commonwealth v. Lamb

In Commonwealth v. Lamb, 351 the SJC interpreted G.L. c. 233, § 20B (patientpsychotherapist privilege) as “preserving a patient’s rights to keep privileged any communications made to a court-appointed psychotherapist in the case of a court-ordered examination, absent a showing that he was informed that the communication would not be privileged and thus, inferentially, that it would be used at the commitment hearing.” 352 The Court also interpreted the Section 20B to provide that communications between the psychotherapist and the subject are privileged and confidential unless the person interviewed is made aware that any communications to the examiner are not for purposes of treatment, but only for purposes of diagnosis on the issue of the person’s “mental or emotional condition but not as a confession or admission of guilt,” as provided for in G.L. c. 233, § 20B(b). In order to insure that the patient makes a knowing and voluntary waiver of the statutory privilege, the SJC held that the examiner must give the subject a warning at the outset of the interview that the purpose of the interview is diagnosis and assessment and not treatment, that the examiner will disclose the communications to the court, and that therefore the communications are not privileged (so-called “Lamb warnings.”). 353 However, Miranda warnings are not required to be administered in such cases. 354 The requirement of Lamb warnings is also applicable to examinations for competency under G.L. c. 123, § 15(a), (b). 355 There is no requirement that law enforcement officers give a person who is not in custody and not undergoing a court ordered examination Lamb warnings. Thus, an investigator for the Department of Children and Families who conducts a non-custodial interview of a parent or other individual who may be suspected of child abuse is not required to inform the person that any statements he or she makes must be reported to law enforcement. 356

§ 2.4

FORM OF THE MIRANDA WARNINGS

§ 2.4.1

Introduction

The Supreme Court has never “dictated the words in which the essential information [Miranda requires] must be conveyed.” 357 Instead, the Supreme Court stated that “statements made in response to in-custody interrogation would also be admissible if ‘other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it’ are utilized.” 358 2–64

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The prophylactic warnings in the Miranda decision for the benefit of persons who are to undergo custodial interrogation are as follows: “[1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” 359 In Florida v. Powell, 360 the Supreme Court considered whether the Tampa, Florida police complied with Miranda’s third warning requirement when they advised the custodial suspect that he had “the right to talk to a lawyer before answering any of [the law enforcement officer’s] questions,” and that he could invoke this right “at any time. . . during th[e] interview.” 361 The critical question is whether the suspect is informed that he may consult with an attorney and may have the attorney present with him during questioning. 362 In Powell, the Court observed that the warnings were not “the clearest possible formulation of Miranda’s rightto-counsel advisement, “but that the formulation of the warning satisfied Miranda because it conveyed to the subject the “right to have an attorney present not only at the outset of interrogation, but at all times.” 363 There is no requirement that the police inform the person to be questioned that he is the target of an investigation, or of the specific crimes that may be under investigation or that are the subject of the interrogation. 364 What is important, however, is that whatever words are used are sufficient to convey to the person the full scope of the protections set forth in Miranda. An “[o]pportunity to exercise these rights must be afforded him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement.” 365 Massachusetts appellate courts have not explored in any definitive way the extent to which the police may vary from the words used by the Supreme Court in Miranda. In Commonwealth v. Johnston, 366 the Appeals Court considered a case in which the defendant was advised that he had a right to an attorney without any further elaboration and then also advised that if he could not afford one, one would be appointed prior to questioning. The court found that this formula may have been incomplete. “Considering that the entire Miranda waiver concerned whether the defendant wished to speak with the police, advising him that ‘he had the right to an attorney’ could reasonably be interpreted to mean that the defendant had the right to counsel during questioning. That, however, is not the only possible interpretation of the form.” 367 Without squarely reaching the merits, the Appeals Court made this observation:

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[I]mperfect Miranda warnings do not result in automatic reversal. . . . it is enough that the advisement reasonably convey to the suspect his rights as required by Miranda. Whether the defendant received the functional equivalent of all of the required warnings is, in these circumstances, a question of fact best resolved in a trial court rather than an appellate court. (citations omitted). 368 The critical question is whether the defendant understands “the Miranda warnings themselves,” not whether she appreciates the “consequences and ramifications” of making a statement. 369 Massachusetts law, unlike federal law, requires the Commonwealth to demonstrate a valid waiver by a standard of proof beyond a reasonable doubt. 370 “A confession can be voluntary in the legal sense only if the suspect actually understands the import of each Miranda warning,” 371 and is not “threatened, tricked, or cajoled into a waiver.” 372 In deciding whether a defendant’s waiver of the rights described in the Miranda warning is valid, “a court must examine the totality of the circumstances, including the characteristics of the accused and the details of the interrogation.” 373 “A defendant’s experience with and in the criminal justice system is a factor to consider in weighing whether the defendant understands Miranda warnings, waives them, and gives a statement knowingly, intelligently, and voluntarily.” 374

§ 2.4.2

Oral Versus Written Administration of Warnings

There is no requirement under federal or state law that a Miranda waiver must be in writing and thus the warnings may be administered orally. The SJC has expressed a preference for the use of a Miranda waiver card a copy of which can be given to the suspect and the original of which is then available for later use in court. 375 For example, in Commonwealth v. Holley, the Appeals Court upheld the trial judge who found a valid waiver of Miranda based on the following record: Notwithstanding that the trooper spoke at a rapid pace, the defendant in three separate ways acknowledged that he understood the oral warnings, that is (1) immediately following the trooper’s recitation of the Miranda rights, when the defendant was asked whether he understood the Miranda rights that just had been 2–66

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delivered orally, the defendant nodded in the affirmative; (2) after the oral warnings, the trooper indicated that if the defendant understood his Miranda rights, but still was willing to speak to the interviewing officers, the defendant should sign a written Miranda waiver form; again the defendant acknowledged that he understood, and signed the waiver form; and (3) as the defendant signed the Miranda waiver form, the defendant stated, “I know how it goes.” This comment may be considered in light of the defendant’s prior involvement in criminal investigations and the prosecution process, including but not limited to, criminal practice involving the outstanding warrants for which the defendant had been arrested. A defendant’s “experience with and in the criminal justice system” is a factor to consider in weighing whether the defendant understands Miranda warnings, waives them, and gives a statement knowingly, intelligently, and voluntarily.

§ 2.4.3

Better Practice to Use So-Called “Fifth Warning” (Right to Stop Questioning)

There is no requirement under federal or state law that the police expressly inform the defendant who chooses to speak that he may stop the questioning or stop answering questions at any time. 376 Nonetheless, because the “fundamental purpose of. . . Miranda is to insure that the individual’s right to choose between speech and silence remains unfettered throughout the interrogation process,” 377 the use of this additional warning is recommended. 378 This fifth warning, however, is not required by federal or state law. 379

§ 2.4.4

Better Practice to Inform Defendant of Right to have Counsel Present at all Stages

In Miranda, the Supreme Court stated that an individual who is subject to custodial interrogation not only has the right to speak or refuse to speak to the police at the outset, but also may assert her rights at any time prior to or during an interview, even after having initially waived her rights. 380 It is the “fundamental purpose of. . . Miranda ‘to assure that the individual’s right to choose between speech and silence remains unfettered throughout the interrogation process.’” 381

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In Miranda, the Supreme Court also stated that “the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege. . . . [T]he need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.” 382 The Appeals Court has observed that “[u]ndoubtedly, in most cases, the police will supplement the warnings by instructing the suspect of his right to consult with counsel prior to, and during the course of, any questioning. But the omission of that piece of advice will not render invalid an otherwise clear and comprehensible statement of “the four required Miranda warnings.” 383

§ 2.4.5

The Better Practice Is to Use the “Waiver” Question

It is the better practice for the police to conclude their warnings with the question “Now understanding these rights, do you wish to speak to us?”

§ 2.4.6

Warnings used for Non-English Speaking Defendant

The police have an obligation to inform the defendant of his Miranda rights “in a meaningful manner in a language he could comprehend.” 384 When the defendant is non-English speaking, or not fluent in English, the burden remains on the Commonwealth to establish a valid waiver by a standard of proof beyond a reasonable doubt. 385 Slight ambiguities or discrepancies between the language on a Miranda waiver card and the warnings themselves as revealed by an interpreter will not necessarily invalidate an otherwise valid waiver. 386 If there is a defect in the warnings administered to a defendant in her native language, it is not cured simply by a subsequent rendering of the warnings in English.387

§ 2.5

WAIVER OF MIRANDA RIGHTS

§ 2.5.1

Introduction

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or initialing a written waiver form or card), but instead is said to have made an “implied waiver,” discussed more fully below, there is a fundamental difference between state and federal law in terms of the evidence that may be sufficient to establish a valid waiver of Miranda rights as a result of the SJC’s decision in Commonwealth v. Clarke. 388

(a)

Federal Law

Under federal law, the government may prove a valid Miranda waiver in one of two ways. First, an express waiver may be established if the court determines by a preponderance of the evidence that a person in police custody has stated that she understands and waives her Miranda rights. 389 Second, federal law also recognizes a version of the doctrine of implied waiver (discussed more fully below) whereby once Miranda warnings have been given and understood, “an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.” 390 As noted and discussed below, this is a departure from the view expressed by the Supreme Court in Miranda. According to the SJC, “[i]n effect, the [Supreme] court in [Berghuis v.] Thompkins reversed the burden of proof applicable to waiver: under Federal law, waiver will now be presumed from the very fact that the defendant made any uncoerced statements, but the defendant cannot invoke his right to remain silent unless he does so with the utmost clarity. As a matter of State law, we continue to impose a “heavy burden” on the Commonwealth in proving waiver.” 391

(b)

Massachusetts Law

Under Massachusetts law, the government may prove a valid Miranda waiver in one of two ways. First, an express waiver may be established if the court determines by a standard of proof beyond a reasonable doubt that a person in police custody stated that she understands and waives her Miranda rights. 392 Second, Massachusetts law also recognizes a version of the doctrine of implied waiver (discussed more fully below) that is based on the Supreme Court’s original formulation of the doctrine in North Carolina v. Butler. 393

§ 2.5.2

The Framework of the Waive Doctrine

The core of the Miranda doctrine, as developed by the SJC under state law, is that the admissibility, during the Commonwealth’s case in chief, of a defendant’s statement obtained as a result of custodial interrogation requires that the Commonwealth establish, by a standard of proof beyond a reasonable doubt, 394 not only that the law enforcement officials who obtained the statement advised the 2012 Edition

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defendant of the rights required by Miranda, but that the defendant knowingly and voluntarily waived those rights. 395 “The waiver inquiry has two distinct dimensions: waiver must be voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception, and made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” 396 In terms of the requirement of voluntariness, “the court must examine the totality of the circumstances surrounding the making of the waiver.” 397 This test requires the court to consider such factors as “promises or other inducements, conduct of the defendant, the defendant’s age, education, intelligence and emotional stability, experience with and in the criminal justice system, [and] physical and mental condition.” 398 In order for a waiver to be knowing and intelligent, the defendant must understand the Miranda warnings themselves, i.e., the meaning of the words, and understand that he can choose to remain silent or can choose to speak. 399 Although a waiver of Miranda rights requires proof that the defendant understood the meaning of the rights, “[l]iteracy is not required for a valid waiver of Miranda rights.” 400 There is no special response that is required by the defendant to establish a waiver. For example, it was reasonable to take the response “I guess so” as an affirmative answer to the question whether he understood the Miranda rights. 401 Ordinarily, the police are entitled to rely on the defendant’s outward appearance, words and other behaviors in assessing whether she is capable of waiving the Miranda rights and whether she, in fact, did waive them. 402 “That a waiver of rights must be knowing and intelligent does not mean that with the hindsight of conviction the defendant would not have chosen to talk to the police. Rather, it means that police procedures must scrupulously respect the suspect’s free choices, made with actual knowledge of his rights at the time of interrogation.” 403

§ 2.5.3

There Is a Presumption Against Waiver

Under Massachusetts law, a valid waiver of Miranda rights will not be presumed simply because a person who is in police custody answers questions. 404 In fact, the opposite is true. “The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great.” 405 Thus, a valid waiver will not be supported merely by evidence that Miranda rights were read to the defendant from a card. 406 2–70

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The existence of a written waiver signed or initialed by the defendant is some evidence that there was a valid waiver, but it is not dispositive. 407

§ 2.5.4

Waiver Is a Question of Law

The sufficiency of the Miranda warnings and whether the defendant knowingly, voluntarily and intelligently waived his Miranda rights are questions for the court and not for the jury. 408

§ 2.5.5

A Valid Waiver May Be Express or Implied

A waiver of Miranda rights may be express (e.g., “I understand my rights and am willing to speak to you”) or implied. In North Carolina v. Butler, 409 the Supreme Court announced the doctrine of implied waiver in circumstances in which the defendant declined to sign a written waiver, but indicated orally that he was willing to answer questions. Under Massachusetts law, a valid waiver may be implied as well. 410 The doctrine of implied waiver has been applied in situations in which there is no express statement by the defendant of a willingness to answer questions, but a knowing and voluntary waiver is inferred from the circumstances. 411

§ 2.5.6

Differences Between Implied Waiver Under Federal and Massachusetts Law

As noted above in subsection 1, there is a fundamental difference between federal law and Massachusetts law as to the doctrine of implied waiver. It is the view of the SJC that in Berghuis v. Thompkins 412, the Supreme Court significantly expanded (and in the process fundamentally altered) the doctrine of implied waiver. 413 In Berghuis, there was a police interrogation which lasted for nearly three hours. According to the Supreme Court’s account: At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. Thompkins was “[l]argely” silent during the interrogation, which lasted about three hours. He did give a few limited verbal responses, however, such as “yeah,” “no,” or “I don’t know.” And on occasion he communicated by nodding his head. Thompkins also 2012 Edition

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said that he “didn’t want a peppermint” that was offered to him by the police and that the chair he was “sitting in was hard.” About 2 hours and 45 minutes into the interrogation, Helgert asked Thompkins, “Do you believe in God?” Thompkins made eye contact with Helgert and said “Yes,” as his eyes “well[ed] up with tears.” Helgert asked, “Do you pray to God?” Thompkins said “Yes.” Helgert asked, “Do you pray to God to forgive you for shooting that boy down?” Thompkins answered “Yes” and looked away. 414 The interrogation ended about fifteen minutes later without Thompkins confessing or making any further admissions. At trial, the defendant was convicted of murder in the first degree and sentenced to life imprisonment without parole. In Berghuis, the Supreme Court found a valid waiver in circumstances in which there was neither an oral expression by the defendant of a willingness to speak and answer the questions of the police, as in Butler, nor conduct, other than the defendant’s answer after nearly three hours of virtual silence, that manifested the defendant’s willingness to converse with the police as in numerous decisions by the SJC. 415 “Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.” 416 Apart from taking a very broad view of the doctrine of implied waiver, in Berghuis, the Supreme Court also declared, for the first time, that a person in police custody must meet a standard of heightened clarity in order to assert the right to remain silent even before a valid waiver of Miranda has taken place. “[I]n order for criminal defendants to invoke their right to remain silent, whether before or after waiving their Miranda rights, they must ‘unambiguously’ announce their desire to be silent.” 417 In Berghuis, the Supreme Court added that this is an objective test ”that avoids difficulties of proof and. . . provide[s] guidance officers on how to proceed in the face of ambiguity.” 418 In Commonwealth v. Clarke, 419 the SJC rejected the reasoning in Berghuis v. Thompkins that prior to waiving Miranda rights, a person’s assertion of the right to remain silent must be clear and unambiguous, and held, on the basis of Article 12 of the Declaration of Rights, that it is not necessary nor appropriate to apply a heightened standard of clarity before concluding that a person in police custody has asserted his right to remain silent. 420

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§ 2.5

A Valid Waiver Does Not Require a Showing that the Defendant Appreciated the Consequences of Speaking or Remaining Silent

The Commonwealth is not required to establish that the defendant understands and appreciates the tactical or strategic consequences of waiving Miranda rights. 421 Rather, the Commonwealth is required to prove that the defendant’s waiver was knowing and voluntary. 422

§ 2.5.8

Waiver of Miranda Is Not Offense-Specific

Miranda rights are not offense-specific. A valid waiver of Miranda rights is not limited to the crimes with which the defendant may be charged or that the police are investigating at the time of the custodial interrogation. “[A] suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege.” 423 “Our cases do not require that a defendant must have information regarding the crime about which he will be questioned or about police suspicions before making a valid waiver of his Miranda rights.” 424 Generally, the statement “anything you say can be used against you” means that if the defendant agrees to speak, the police are free to question him about any matter or any crime. 425

§ 2.5.9

Commonwealth’s Burden of Proof

As a matter of “Massachusetts practice,” the Commonwealth has the burden of proving a valid waiver of Miranda rights by a standard of proof beyond a reasonable doubt. 426

§ 2.5.10 A Defendant’s Waiver May Be Selective or Partial The defendant can waive and then assert his rights selectively so that some of his answers will be regarded as the product of a valid waiver even though he chooses not to answer some questions. A good illustration of this principle is Commonwealth v. Mandeville, where the SJC observed that “[w]hen an individual ‘takes the Fifth Amendment’ as to certain questions and voluntarily answers other questions, the conclusion is almost inescapable that the answers are made with full knowledge of the right to remain silent. Similarly, the defendant’s refusal to

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take a polygraph test without first consulting an attorney suggests that he understood his right to the assistance of counsel.” 427 In addition, the defendant can make a partial waiver of rights in the sense that he may agree to waive his Miranda rights and “talk about the incident” with the police, and, at the same time, decide not to give a written statement without first consulting with an attorney. In such a case, the defendant’s oral statements as later recorded by the police are the product of a valid waiver of Miranda rights and admissible against the defendant at trial. 428 If the defendant refuses to answer certain questions otherwise but is willing to be questioned, the police are not under an obligation to ask the defendant whether he would like to reassert his right to silence. Commonwealth v. Roberts, 407 Mass. 731, 734 (1990). Based on Commonwealth v. Santos, 463 Mass. 273 (2012), it would also appear that a suspect could assert his or her right to counsel during a custodial interrogation, but only as to certain areas of inquiry by the police, with the result that an interrogation that is interrupted by the defendant’s assertion of the right to counsel, followed by a clarification by the defendant that he or she wished to consult with counsel only if the police continued to question him or her about a certain matter or matters, could then continue so long as the police did not inquire further about those matters identified by the defendant as off limits.

§ 2.5.11 Duration of Waiver of Miranda Rights Miranda warnings are not effective for an unlimited period of time. 429 On the other hand, the police are not required to continuously remind a person of his or her Miranda rights once he or she has knowingly and voluntarily waived them. 430 In cases in which the defendant has not exercised the right to remain silent or asked for an attorney, the SJC has found that a six-hour delay between a waiver of Miranda and the making of incriminating statements does not invalidate the waiver. 431 The SJC has declined to adopt a special rule for waivers by defendants with a mental illness, but has cautioned that judges must carefully scrutinize the record in such cases to ensure that the Commonwealth has satisfied the stringent Massachusetts standard of proof beyond a reasonable doubt. 432 When the defendant is properly advised of his Miranda rights before being placed in custody, the SJC held that there is no need to readvise the defendant of his Miranda rights before interrogating him after the situation became custodial. 433

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Additional warnings are only required if there is a significant change in circumstances between the initial warnings and the interrogation. 434

§ 2.5.12 Under Massachusetts Law, Miranda Waiver Does Not Operate Retroactively (Doctrine of “Presumptive Taint”) Under Massachusetts law, an admission or confession of guilt obtained in violation of Miranda is presumed to taint any subsequent admission or confession, and the taint is not cured simply by the administration of Miranda warnings before the second or subsequent statement. 435 “This presumption may be overcome by showing that (1) after the illegally obtained statement, there was a break in the stream of events that sufficiently insulated the post-Miranda statement from the tainted one; or (2) the illegally obtained statement did not incriminate the defendant, or, as it is more colloquially stated “the cat was not out of the bag.” 436 The question of which line of analysis should be applied in a case of presumptive taint depends on the particular facts of the case. 437

§ 2.5.13 Defendant’s Right to Be Notified of Availability of Counsel (a)

Police Obligation when Counsel Seeks to Contact Custodial Client

Massachusetts decisions have long placed a high value on insuring that a person in police custody has access to counsel when requested or when counsel is seeking out the defendant. 438 For example, in Commonwealth v. Mavredakis, 439 the SJC held, under Article 12 of the Declaration of Rights, that “when an attorney representing a suspect held in custody makes it known to the police that the attorney is seeking to reach his or her client to provide legal advice, the police have an affirmative duty to inform the suspect immediately of the attorney’s efforts.” 440 The duty arises whether or not the attorney has formally been appointed to represent the defendant. 441 If the police fail to honor this duty, suppression of any statements made by the defendant following the attorney’s request is usually required. 442“ Mavredakis established a “bright-line rule, providing that police must stop questioning and inform a suspect immediately of attempts of an attorney identifying himself or herself as counsel acting on the suspect’s behalf to contact the suspect.” 443

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In Mavredakis, the SJC also added that the duty of the police when contacted by an attorney representing the defendant is “to apprise the defendant of a specific communication from his attorney that bore directly on the right to counsel.” 444 The Court explained this obligation further in Commonwealth v. McNulty, 445 In McNulty, the SJC noted that there were four separate points made to the Salem police by defendant’s counsel which “bore directly on the right to counsel,” and which should have been transmitted by the police to the defendant: (1) that the attorney represented the defendant; (2) that he wanted to speak to the defendant; (3) that the police were to tell the defendant that [attorney] Buso said not to talk to the police; and (4) that [attorney] Buso would be at the station shortly.” The SJC added that “the statements that Buso had expressly requested to speak to the defendant and would be at the station ‘shortly’-the second and fourth pointscould be of critical importance in ‘actualizing’ the abstract promise of an attorney provided by the Miranda warning into concrete reality; there is a significant difference between being told that one can stop questioning and speak to an appointed attorney, and hearing that the appointed attorney has already stated that he or she wants to meet and speak, and is in fact due to arrive at one’s side ‘shortly.’” In McNulty the SJC stressed that although the police are not required “to deliver verbatim to a defendant the message given by his attorney,” 446 an attorney’s message that his client should not talk to the police or submit to a test or an examination bears directly on the right to counsel and must be passed on to the client. 447 The Massachusetts rule is strict. The police must communicate the message relating to the right to counsel from counsel to the defendant without delay. 448 When the police memorialize a defendant’s statement in such a way that it is not possible to tell whether certain statements were made by the defendant before or after his attorney contacts the police, all such statements must be suppressed. 449 A violation of this rule is subject to harmless error analysis. 450

(b)

The Defendant Remains Responsible for the Decision Whether to Speak with the Police or to Assert His Miranda Rights

Although the police have a duty under Massachusetts law to inform a defendant held in their custody of the communications by his counsel relating to the exercise of the defendant’s Miranda rights, 451 the responsibility for invoking the right to remain silent and the right to counsel rests with the defendant, and is not the responsibility of the police. 452 For example, in Commonwealth v. Collins, 453, the defendant argued that his statements should have been suppressed because the police did not inform him that an attorney previously retained by him had told

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the police that he (the attorney) wished to be present if the defendant was questioned. The SJC rejected this claim with the observation that [w]here, as here, a suspect has retained and consulted with an attorney concerning the matter under investigation, it cannot be said that the right to consult with counsel is ‘abstract’; and where the police have done nothing to impede the contact or the flow of information or advice between lawyer and client (including, e.g., failing to notify the defendant of attempts by the lawyer to contact him), our concerns regarding interference with the attorney-client relationship are simply not present. In these circumstances, the rule [from cases like Sherman and Mavredakis] does not apply, and to extend it would unduly burden law enforcement with responsibilities that firmly belong with attorneys and defendants. Once consultation occurs between the defendant and the attorney who is trying to contact the defendant, it will be the defendant, not counsel, who determines whether the police may then question the defendant: If the suspect accepts the attorney’s offer of assistance, the police must suspend questioning until the suspect consults with the attorney. We acknowledged in Mavredakis, however, that a suspect may choose to decline the attorney’s offer. To this extent, an attorney’s directive to the police to stop questioning the defendant requires only that they terminate questioning long enough to afford the defendant the opportunity to avail himself of the attorney’s advice. 454 Once the defendant is informed that his attorney is trying to contact him and informed of any communication from his attorney, the police must give the defendant an opportunity to decide whether to remain silent and wait until the arrival of his attorney or to continue the interview. 455 If the defendant decides to continue, and otherwise has validly waived his Miranda rights, the police may continue despite the attorney’s direction to stop questioning. 456

§ 2.5.14 Inaccurate or Incomplete Miranda Warnings The omission of an essential element of the Miranda warnings, such as the warning that any statement made by the defendant could be used against him, invalidates 2012 Edition

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an otherwise valid waiver, 457 and renders a confession or inculpatory statement that follows inadmissible. 458 However, Miranda violations are subject to the harmless error rule. 459 When the defendant receives two sets of Miranda warnings before making any statements, and one set of warnings is defective or incomplete and the other set of warnings is both complete and accurate, the validity of a waiver of rights will depend on the totality of the circumstances, especially whether a reasonable person in the defendant’s position would be confused by the discrepancy or omission. 460 In some circumstances, incomplete or incorrect Miranda warnings may be cured by a subsequent complete and correct expression of the Miranda warnings. 461 Likewise, an accurate and complete set of Miranda warnings followed by incomplete Miranda warnings may be sufficient to support a finding of a valid waiver. 462

§ 2.6

SHOULD THE MIRANDA WARNINGS BE SIMPLIFIED?

§ 2.6.1

Comprehensibility Problems—An Overview

As noted earlier, the Supreme Court has never “dictated the words in which the essential information [Miranda requires] must be conveyed.” 463 Instead, the Supreme Court stated that statements made in response to in-custody interrogation would also be admissible if ‘other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it’ are utilized.” 464 The question, therefore, arises whether there is any significant advantage to expressing the content of the Miranda warnings in terms that would be easier to understand. It is commonly assumed that most Americans who are arrested and interrogated by the police understand their Miranda rights before the experience of having a police officer inform them of those rights. “A nationally-based community survey conducted for the National Legal Aid and Defender Association appears to provide broad support for the notion that the general public understands its Miranda rights. This survey found that most persons recognized that suspects have the right to remain silent (81%), the right to counsel (95%), and the right to indigent-based free legal services (88%).” 465 Empirical research, however, suggests that this assumption is false. In one study involving a population from county jails in Texas and Oklahoma conducted as part of an ongoing series of research investigations, the following results were obtained that undermine the popular assumptions about the effectiveness of Miranda warnings: 2–78

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The right to remain silent might better be reconceptualized as the risk to remain silent for a substantial minority of pretrial defendants. About 30% (see Table 1) view silence, by itself, as incriminating evidence. A much smaller number (9.4%) believes their silence will be punished via retaliatory actions with police “piling on” the charges. Despite these obvious inaccuracies, it is interesting to note, only a small minority of defendants (31.5%) rates their overall knowledge of Miranda as “poor.” In general, these defendants are likely to believe there is nothing to lose—and possibly something to gain—by relinquishing their “right” to silence; 466 Nearly all defendants (95.9%) accurately understand that their statements can be used as evidence against them. However, many defendants inaccurately believe in nonexistent safeguards as partial protections against self-incrimination. Approximately one fourth (25.9%) mistakenly believe a waiver must be signed to be valid, whereas slightly more than half (52.0%) erroneously conclude that “off the record” comments cannot be used legally against them. A much smaller number (12.8%) even believe they can retract past deceptive statements without peril. Belief in these illusory safeguards may affect the decisional process and contribute to implicit waiver decisions; 467 Although the right to counsel may seem selfexplanatory, many defendants have limited understanding of the precision required to invoke this right and its concomitant advantages. In Davis v. U.S. (1994), the Supreme Court held that use of qualifiers, such as “maybe,” can invalidate the request for counsel. This precision of language is lost on approximately two-thirds (69.1%) of defendants. While most defendants recognize that their request for an attorney should stop police questioning, a critical issue involves its timing; 30.2% inaccurately believe that questioning can continue until their lawyers are physically present. In addition, a substantial minority do not believe they will have the opportunity to confer

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POLICE INTERROGATIONS AND CONFESSIONS

with counsel in private, thereby vitiating a primary advantage of seeking counsel; 468 Regarding other Miranda components, nearly all defendants understand that legal services are provided to those in financial need. However, the use of abstruse words (e.g., indigent) and the lack of specificity about who bears the costs of legal services contribute to misunderstandings about this Miranda component. Concerning their continuing legal rights, defendants have disparate views of their right to silence and right to counsel. Three times as many defendants mistakenly believe that their right to silence cannot be reasserted as compared to their right to legal counsel (i.e., 37.2% vs. 12.2%). 469 When researchers conducted the same tests on a cohort of college students, they found “little evidence that Miranda knowledge and misknowledge is a product of years in the classroom, intelligence or comprehension of oral or written materials.”470 Findings of the current study provide strong countervailing evidence against the common assumption that Miranda is ubiquitously understood within our mainstream culture. These data help to underscore the pronounced discrepancies between what the public believes it knows and what it actually knows. . . . the current findings suggest most persons can recognize their basic rights to silence and legal counsel. However, the more critical question is whether they have an accurate working knowledge of their rights. For instance, do they understand that their right to silence is constitutionally protected against self-incrimination? With 36.4% of college students and nearly as many defendants (30.9%) erroneously concluding that silence is likely to incriminate, the idea of an accurate working knowledge for most defendants is highly suspect. On this point, the current findings support the police survey data. . . indicating that the public is largely misguided in their perceptions of Miranda rights. However, our data strongly question the general perception of police officers that defendants are better informed. 471

2–80

2012 Edition

THE MIRANDA DOCTRINE

§ 2.6

One significant problem with Miranda warnings is that they vary considerably in content and length throughout the United States. “A recent study examined 560 Miranda warning forms used by police throughout the U.S.. . . .[A] metric analysis of their wording revealed reading-level requirements ranging from thirdgrade level to the verbal complexity of postgraduate textbooks. Moreover, Miranda warning forms varied considerably in what they conveyed. For example, only 32% of the forms told suspects that legal counsel could be obtained without charge.” 472 Another research project found “[o]nly a small number (