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THE RIGHT TO REMAIN SILENT IN RESPONSE TO POLICE INTERROGATION

When a person is being detained by the police, so that he or she is not free to leave, and the police then question that person in an attempt to elicit evidence of a crime, that situation is known in the law as “custodial interrogation.”  In general, custodial interrogation does not occur when a person in police custody volunteers information without being asked questions by the police (no interrogation), and does not occur when a person is interrogated by the police under circumstances in which a reasonable person would feel free to leave (not custodial).

When custodial interrogation does take place, an individual has the right to remain silent, pursuant to the 5th Amendment to the U.S. Constitution.   An individual also has the right to consult with an attorney before and during questioning, pursuant to the 6th Amendment.  The U.S. Supreme Court’s 1966 Miranda decision held that statements made in response to interrogation by an individual in police custody are only admissible at trial if the individual was informed – before questioning – of the right to consult with an attorney and the right against self-incrimination, and that the prosecution must demonstrate that the individual understood their rights, and voluntarily waived them.

Since 1966, there have been many decisions in which courts have worked out the details of the Miranda rights, such as determining exactly when an individual is in custody, whether an individual has understood their rights, what words or conduct demonstrate that an individual has voluntarily waived their rights, and so on.  In 2016, the Supreme Judicial Court of Massachusetts further clarified the law in this area, in the case of Commonwealth v. Smith.

Smith is a sad case involving the shooting death of a young woman in Worcester, allegedly during a botched robbery.   The prosecution alleged that the defendant was part of a plan to arrange to buy marijuana from the woman, and then to ambush and rob her.  It was alleged that the defendant shot the woman in the neck when the robbery didn’t go as smoothly as predicted.  After a trial, a jury found the defendant guilty of attempted armed robbery and murder in the first degree.  The defendant appealed.

On appeal, the defendant’s attorney argued that the defendant exercised his right to cut off questioning but the police improperly did not honor that exercise, in violation of his Miranda rights.  Defense counsel’s argument was based on the following exchange, which occurred at the police station, and was audio and video recorded:


Defendant:  “I’m done.”

Police Officer: “You’re done with what?”

Defendant:  “I’m done talking.  I don’t wanna talk no more.”

Police Officer:  ”You don’t wanna talk anymore?”

Defendant:  “No.  ‘Cause y’all really don’t believe me.”

Police Officer:   “It’s — We already tried to explain that to you, Donovan.  I don’t think you get it.”

Defendant:  “Yeah, I understand.”

Police Officer:   “It’s not believing.”

Defendant:  “I understand, sir.”

Police Officer:  “It’s not believing.  It’s what we know.”

Defendant:  “Okay.”

Police Officer:   “What the facts are.”

Defendant:  “What the facts show.”

Police Officer:   “Right.”

Defendant:  “Right.”

Police Officer:   “Right?”

Defendant:  “Yes.”

Police Officer:   “We don’t make stuff up.  We don’t make people talk to us.  We don’t make people pick people out.  We don’t put people’s fingerprints inside of a car.  We don’t make up videos.  The facts are the facts.”

Police Officer:  “When we talk to people, we ask certain questions to gauge your truthfulness, things that I know you’re not gonna lie about like name, address, who you live with, mom, dad, date of birth, stuff like that.  Then when we ask you questions about other things, your body reacts a certain way.  It’s just a natural thing.  You can’t help it.  Everyone does it.  So that’s what I — when you answer my questions and I say you’re lying to me, your body’s telling me that.  Not only your words but your body.  You understand?”

Defendant:  “yes.”

Police Officer: “You have the opportunity now to give your side of the story, to maybe lighten the load, get a little bit off yourself.  And you’re being a tough guy, in the sense that you’re just gonna — you’re gonna dig in and sit in a hole and wait out the storm.  And I don’t think you realize all the things that are gonna happen going forward.  We’re trying to give you information so you can process all that.  What are you thinking about?”

Defendant:  “Life.”

Police Officer:   “Think life’s been tough to you?”

(The defendant nods, indicating yes.)

Police Officer:  “Yeah?  Sometimes life isn’t fair, man.  Sometimes we’re in the wrong place at the wrong time.  Sometimes circumstances just put you in a bad way.  I kinda think that’s what happened here.”


Then, after almost a minute, the defendant made “a series of inculpatory responses to questions by the officers.  He described a plan . . . to rob the victim. . . .”  These responses were introduced at trial.

The Supreme Judicial Court held that the defendant’s statement, “I’m done talking. I don’t wanna talk no more,” was an unequivocal invocation of his right to remain silent, which the police had a duty to “scrupulously observe.”  This required the police to stop questioning the defendant, or at a minimum to pause the questioning, and explain the defendant’s Miranda rights to him again, and allow him to decide if wanted to waive his rights and continue answering questions.  Because his right to remain silent was not scrupulously honored, the SJC reversed the conviction and remanded for a new trial.

It is interesting to note that the SJC also found error in the admission into evidence of certain audiotaped statements that the defendant volunteered without being questioned when he was left alone in the interview room.  The Court held that the police could not take advantage of the improper interrogation of the defendant by then leaving the defendant in the interview room where he could make more recorded statements: “[t]he Commonwealth should not be permitted to take advantage of a recording that should not have been made[,] by introducing the recording in evidence.”

The rights to remain silent and to consult with an attorney are very important constitutional safeguards against government overreach, and the Smith case is a welcome addition to the jurisprudence in this area.


Attorney Kevin D. Quinlan

Uxbridge, Worcester County, Massachusetts

508-723-6384

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