"You Have the Right to Remain Selectively Silent": The Impractical Effect of Selective Invocation of the Right to Remain Silent

Transcription

1 "You Have the Right to Remain Selectively Silent": The Impractical Effect of Selective Invocation of the Right to Remain Silent Gerardo Schiano I. INTRODUCTION The right of criminal defendants to remain silent has been established both as a matter of procedure at trial' and after a suspect has been arrested and taken into custody. 2 This right's origin stems from the privilege against self-incrimination explicit in the language of the Fifth Amendment, 3 yet the interpretation of the right has been the subject of countless constitutional challenges as criminal defendants attempt to invoke that right in order to suppress evidence at trial. 4 These challenges have been met with skepticism and contempt by law enforcement officials, prosecutors, and legal scholars who feel that the Supreme Court's broad interpretations and impractical determinations only facilitate the stymieing of criminal proceedings. 5 Despite the number of cases surrounding this constitutional right, these challenges have continued to burden courts and prosecutors in new and distinct ways. Such is the case with the doctrine of selective silence. Although the Supreme Court has yet to address this concept, circuit courts have taken this doctrine out of the realm of the theoretical and transformed it into binding law. 7 The doctrine of selective silence allows criminal suspects to choose which questions they wish to answer during pretrial and post-arrest interrogations without fear that their refusal to answer particular questions 1. See U.S. CONsT. amend. V. 2. See Miranda v. Arizona, 384 U.S. 436, (1966). 3. U.S. CONsT. amend. V. 4. See, e.g., Berghuis v. Thompkins, 130 S. Ct. 2250, 2261 (2010); Hurd v. Terhune, 619 F.3d 1080, 1084 (9th Cir. 2010). 5. See, e.g., LIVA BAKER, MIRANDA: CRIME, LAW, AND POLITICS 176 (1983); OTIS H. STEPHENS JR., THE SUPREME COURT AND CONFESSIONS OF GUILT 165 (1973). 6. See, e.g., Berghuis, 130 S. Ct. at 2261; Hurd, 619 F.3d at Hurd, 619 F.3d at ; United States v. Scott, 47 F.3d 904, 907 (7th Cir. 1995); United States v. Canterbury, 985 F.2d 483, 486 (10th Cir. 1993). 177

2 178 CRIMTNAL AND CIVIL CONFINEMENT [Vol. 38:177 will be used against them at trial. 8 However, this doctrine lacks the constitutional basis and practical application needed to become effective law. Despite the inherent problems in the doctrine itself, some circuit courts have found the doctrine to be workable in practice as well as constitutionally authorized based on historical justifications and Supreme Court precedent. 9 In August 2010, the Ninth Circuit decided in Hurd v. Terhune that an arrestee who has been given his Miranda warnings may choose to be selectively silent as to certain questions or inquiries made during a police interrogation.' 0 The Ninth Circuit based its holding on the Supreme Court's decision earlier that year in Berghuis v. Thompkins, where the Court held that an arrestee must unambiguously and unequivocally invoke his Fifth Amendment right to remain silent, and also on the plain language set forth in Miranda v. Arizona. 11 The Ninth Circuit found that Berghuis "does not alter [the Supreme Court's] holdings in Miranda [v. Arizona] or Doyle [v. Ohio]" and that "the right to silence is not an all or nothing proposition."l2 The Hurd decision furthered the doctrine of selective silence in light of the Berghuis decision, finding that the doctrine would be easier to implement where an arrestee must unambiguously and unequivocally invoke his right to remain silent.1 3 However, the Ninth Circuit's reading and use of Berghuis reached a conclusion about an arrestee's Fifth Amendment right to remain silent that is unprecedented in constitutional law. The Hurd decision further complicates this area of criminal procedural law by allowing invocation and waiver to be asserted whenever and however a criminal suspect sees fit despite the Supreme Court's efforts in Berghuis to eliminate confusion by requiring unambiguous and unequivocal invocation. 14 The doctrine of selective silence may provide a way of safeguarding an arrestee's privilege against self-incrimination while helping law enforcement officers obtain necessary information vital to the performance of their duties. However, the practical workings of such a doctrine may only confuse and impede those important functions, leading to more ancillary litigation in criminal proceedings. This Note argues that: (1) the doctrine of selective silence does not comport with Supreme Court precedent on the subject of an arrestee's Fifth 8. See Hurd, 619 F.3d at ; Scott, 47 F.3d at 907; Canterbury, 985 F.2d at See Hurd, 619 F.3d at ; Scott, 47 F.3d at 907; Canterbury, 985 F.2d at See Hurd, 619 F.3d at Id. at (discussing Berghuis, 130 S. Ct. at ). 12. Id. at See id. at Id. at 1087; Berghuis, 130 S. Ct. at

3 2012] IMPRACTICAL EFFECT OF SELECTIVE INVOCATION 179 Amendment right to remain silent; and (2) the application of such a doctrine fails to advance the goals and purposes of securing an individual's privilege against self-incrimination, as well as law enforcement's ability to secure the public's interest and general welfare. The doctrine of selective silence has received little to no attention from the Supreme Court, and with the growing case law from the lower courts concerning this topic, intervention by the Supreme Court will eventually be necessary and will most likely lead to the elimination or severe limitation of this legally unworkable and impracticable doctrine. The purpose of this Note is to explore the basis of the right to remain silent and to understand why and how the Supreme Court has qualified such a right in order to establish that the doctrine of selective silence has no place in the criminal law context. Furthermore, this Note will delve into the practical and necessary qualities of custodial interrogations and how this doctrine only serves to impede the criminal process. Part II of this Note will discuss the historical underpinnings of the right to remain silent and the state of the law as it exists now concerning this constitutional right. Part III will set forth how the circuit courts have interpreted and concluded that selective silence is constitutionally authorized and how those conclusions were based on misinterpreted and misapplied constitutional standards. Part IV will argue that the doctrine of selective silence fails to conform to Supreme Court precedent originating with Miranda v. Arizona and qualified by subsequent cases. Finally, Part V will show how law enforcement practices operate in line with Supreme Court precedent concerning the right to remain silent and will demonstrate how the doctrine of selective silence is impractical and unduly burdensome to the central purposes and goals of law enforcement. II. MIRANDA AND THE HISTORY OF THE RIGHT TO REMAIN SILENT In order to understand why the concept of selective silence fails to conform to Supreme Court precedent, is impractical, and is unduly burdensome to the purposes of law enforcement, one must examine the history and purpose of the Miranda warnings and how the Court has interpreted the right to remain silent in decisions following Miranda v. Arizona. 15 A. The Third Degree and the Pre-Miranda Privilege Against Self- Incrimination The dangers associated with involuntary or coerced confessions have long been recognized in both England and the United States, resulting in a 15. Miranda, 384 U.S. 436.

4 180 CRIAINAL AND CIVIL CONFINEMENT [Vol. 38: 177 form of an exclusionary rule for these types of confessions in criminal trials. 16 The use of involuntary or coerced confessions posed a particular danger to criminal defendants in light of the potential deprivations that could result from a criminal conviction because such deleterious evidence was, and still is, considered inherently untrustworthy.' 7 Such dangers were often believed to be the result of "third degree"' 8 practices used by police, which included not only the use of physical brutality, but also the use of deceptive tactics and prolonged interrogations.' 9 Law enforcement officials attempted to justify these tactics as a necessary means for-protecting the community against crime. 20 However, rules for excluding involuntary or coerced confessions were imposed by the courts, which found these rules necessary to protect criminal suspects against coercive police practices, 2 ' as well as protect a suspect's constitutional privilege against selfincrimination. 2 Still, the adequacy of these rules was often questioned in 16. See, e.g., WELSH S. WHITE, MIRANDA'S WANING PROTECTIONS: POLICE INTERROGATION PRACTICES AFTER DIcKERsoN 1-3 (University of Michigan Press 2001). In the late eighteenth century, such exclusionary rules in the United States took two forms: (1) the common law rule prohibiting the admission of involuntary confessions; and (2) the Fifth Amendment privilege against self-incrimination. See Developments in the Law-Confessions, 79 HARV. L. REv. 938, 955 (1966); U.S. CONST. amend. V. 17. See WHITE, supra note 16, at The etymology of the term "third degree" is in dispute, some crediting its source to Freemasonry and the intense examination undergone before one may achieve the rank of Master Mason. WHITE, supra note 16, at 14 (citing 3 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW, vol. 3, 851 (3d ed. 1940)). However, John Henry Wigmore has cited an earlier source suggesting the term comes from the stages at which a criminal suspect is processed, the "first degree" referring to arrest, the "second degree" referring to an officer taking the suspect to a place of confinement, and the "third degree" referring to the interrogation itself. Id. 19. See WHITE, supra note 16, at According to the Wickersham Commission report published in 1931, the use of third degree practices was "widespread" and "extensively practiced," observing in numerous appellate court cases instances: that involved the use of boxing gloves, rubber hoses, telephone books, placing a rope around the suspect's neck, or using "water cure," which involved slowly pouring water into the nostrils of a suspect who is held down on his back. The commission also referred to other abusive practices, including confronting the suspect with the victim's dead body, stripping the suspect of clothing, placing him in an airless, overcrowded, or unsanitary room, and depriving him of sleep. It observed, however, that the most common form of the third degree simply involved protracted questioning. Id. at Id. at See, e.g., Monrad G. Paulsen, The Fourteenth Amendment and the Third Degree, 6 STAN. L. REV. 411, 431 (1954). 22. See, e.g., Charles T. McCormick, Some Problems and Developments in the

5 2012] IMPRACTICAL EFFECT OF SELECTIVE INVOCATION 181 light of such purposes and the overall goals of law enforcement. At common law, courts originally applied the voluntariness test to determine whether a suspect had voluntarily confessed to a crime or if his will had been overborne. 2 3 This test was later replaced by the "due processvoluntariness" test set forth in Brown v. Mississippi. 24 These tests applied the same basic framework-that a confession be made voluntarily and by the free will of the accused-but were distinguishable in their source and scope. 25 The common law voluntariness test set forth in Bram v. United States was controlling as a matter of federal law and was rooted in common law notions. 26 However, the "due process-voluntariness" test was rooted in the Fifth Amendment and applicable to the states through the Fourteenth Amendment, and therefore it could not be surpassed by federal or state legislative efforts. 27 Hence, the burden on states and law enforcement to produce legally admissible confessions became a paramount concern, especially when evidence was limited. Although Brown made clear that physical violence or the threat thereof could not be used to compel a confession, the "due process-voluntariness" test was still ambiguous as to whether confessions obtained from certain interrogation tactics constituted voluntary admission or unacceptable third degree compulsion. 28 After a series of Supreme Court decisions that did little to alleviate the ambiguity, 29 the Court held in Spano v. New York that a finding of whether the "due process-voluntariness" test has been satisfied requires that a defendant's confession be examined "with the most careful Admissibility of Confessions, 24 TEX. L. REv. 239,277 (1946). 23. Brain v. United States, 168 U.S. 532, (1897); see also Hopt v. People, 110 U.S. 574, (1884) (discussing the importance of voluntary confessions and the need for "careful scrutiny" and "great caution" in assessing their admissibility). 24. Brown v. Mississippi, 297 U.S. 278, (1936). 25. Id. at ; Bram, 168 U.S. at Bram, 168 U.S. at WHITE, supra note 16, at 39-40; Dickerson v. United States, 530 U.S. 428, (2000). 28. See WHITE, supra note 16, at Spano v. New York, 360 U.S. 315, (1959) (holding that threats against and invoking sympathy for a childhood friend was improper). See generally Leyra v. Denno, 347 U.S. 556, 561 (1954) (holding the confession obtained by a mentally and physically exhausted suspect interrogated for many hours over the course of many days inadmissible); Lyons v. Oklahoma, 322 U.S. 596, , (1944) (holding confession admissible despite police showing defendant bones of murder victim); Chambers v. Florida, 309 U.S. 227, (1940) (holding interrogation held intermittently over five days inadmissible since defendants were "ignorant young colored tenant farmers" whose wills were broken by police in racially charged atmosphere). These cases point to specific circumstances which negate or affirm the finding of voluntariness and fail to produce any clear functional test. See id.

6 182 CRIMINAL AND CIVIL CONFINEMENT [Vol. 38: 177 scrutiny." 30 However, even the "totality of the circumstances" test, as used in Spano, did little to guide the lower courts and law enforcement. 3 ' This test revealed that the Supreme Court was primarily concerned with curbing abusive interrogation practices rather than ensuring that a suspect's privilege against self-incrimination was not violated. 32 B. The Privilege Against Self-Incrimination In 1966, the Supreme Court granted certiorari in Miranda v. Arizona, which included four consolidated cases "involving [the] admissibility of [a suspect's] statements to police," in order "to explore some facets of the problems, thus exposed, of applying the privilege against self-incrimination to in-custody interrogation and to give concrete constitutional guidelines for law enforcement agencies and courts to follow." 33 The Court held in Miranda that: (1) the Fifth Amendment privilege against self incrimination applies to custodial interrogation; 4 (2) custodial interrogation automatically results in compulsion unless adequate protective devices are established; and (3) statements made during custodial interrogation will not be admissible at trial unless the officer conducting the interrogation warned the suspect of four rights, including the right to remain silent. 35 Much of the Court's decision in Miranda was predicated on previous concerns dealt with by the "due process-voluntariness" test, namely the use of the "third degree" tactics, but focused more on strategies used by law enforcement to deceive a suspect to refrain from exercising his constitutional rights. 36 To a certain extent, the Court was attacking the Inbau Manual, 3 the most influential of many law enforcement handbooks on in-custody 30. Spano, 360 U.S. at WHITE, supra note 16, at Id. at Miranda, 384 U.S. at Id. at 444 ("By custodial interrogation we mean questioning initiated by law enforcement officials after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."). 35. WHITE, supra note 16, at 55 ("Although Miranda is viewed as a single constitutional holding, the decision can be viewed as predicated on three separate holdings.); See generally Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REv. 435, 436 (1987). 36. See Miranda, 384 U.S. at 445, See id at 454. The version of the Inbau Manual used prior to Miranda had numerous suggestions in dealing with suspects who refused to speak including "resort[ing] to deceptive stratagems such as giving [a suspect] false legal advice" and "then persuad[ing], trick[ing], or cajol[ing] him out of exercising his constitutional rights." Id. at 455 (1966). See generally FRED E. INBAU, CRIMINAL INTERROGATION AND CONFESSIONS (1962).

7 2012] IMPRACTICAL EFFECT OF SELECTIVE INVOCATION 183 interrogations that was produced as a result of the Court's attack thirty years earlier in Brown on third degree tactics used by state law enforcement officials. 38 As a result of the Court's decision in Miranda, law enforcement's ability to obtain and use confessions was heavily burdened by the judiciary. Although there were certainly critics who expressed that Miranda still did not provide adequate protection to an individual's Fifth Amendment rights, most criticism took the form of undue burdens on law enforcement. 3 9 One critic, a police chief, accused the Warren Court of providing "a shield for criminals," 40 while others accused the Court of "coddling criminals," "handcuffing police," and "undermining law and order."41 In fact, criticism of the Court's decision reached the political realm and was the focus of Richard Nixon's presidential campaign in Nixon claimed the decision in Miranda had the effect of "ham stringing the peace forces in our society and strengthening the criminal forces" and had "the cumulative [effect of]... very nearly rul[ing] out the 'confession' as an effective and major tool in prosecution and law enforcement."4 3 As a result of the growing dissent against Miranda, Congress enacted 18 U.S.C which in essence made the "due process-voluntariness" test the only test in determining the "admissibility of confessions in federal prosecutions."a4 However, this legislation was eventually ruled unconstitutional by the Court in Dickerson v. United States. Despite the political debate surrounding Miranda, the burden on law enforcement officials and prosecutors in criminal trials still exists, provoking the question: to what extent must a suspect's Fifth Amendment rights give way to the central purposes and goals of law enforcement? C. Post-Miranda Decisions and the Evolution of the Right to Remain Silent Following Miranda, there was considerable debate over how a suspect could exercise his Fifth Amendment right to remain silent and how law enforcement officials and prosecutors were to treat the exercise of that right. In Doyle v. Ohio, the Court held that the use of a suspect's post-arrest 38. WHITE, supra note 16, at Id. at BAKER, supra note 5, at STEPHENs, supra note 5, at See WHITE, supra note 16, at CONG. REC. 12, WHITE, supra note 16, at 57; Dickerson, 530 U.S. at 432, 436 (holding that Miranda governs, overruling 18 U.S.C. 3501). 45. Dickerson, 530 U.S. at 432.

8 184 CRIMINAL AND CIVIL CONFINEMENT [Vol. 38:177 silence was inadmissible at trial since there is no way for a jury to know whether a suspect was refusing to admit guilt or simply exercising his right to remain silent. 46 For this reason, the Court found such post-arrest silence "insolubly ambiguous" and, therefore, "fundamentally unfair and a deprivation of due process.'a 7 Doyle involved a dispute over whether the defendant was the seller or buyer in a drug transaction. 48 The Court found that the prosecutor's argument-that the defendant was the seller since he had not refuted that conclusion until trial-was unpersuasive. 49 This decision further burdened law enforcement officials and state prosecutors who could no longer rely on a suspect's silence as affirmative evidence of guilt. 50 The greatest debate over how a suspect could exercise his Fifth Amendment right to remain silent and how law enforcement officials and prosecutors were to treat the exercise of that right, however, centered on how a suspect must waive or invoke his right to remain silent. With respect to waiver, the Court held in North Carolina v. Butler that it is not necessary for a suspect to explicitly waive his right to remain silent and that such waiver may be inferred by the conduct and statements given during custody. 5 ' The Court noted that "[t]he question is not one of form, but rather whether the defendant in fact knowinly and voluntarily waived the rights [as] delineated in the Miranda case." 5 In Connecticut v. Barrett, the Court held that a suspect who refuses to make a written statement without counsel, but then makes oral incriminating statements, may nevertheless be found to have waived his right to remain silent. 53 However, the Court also found that a suspect's "ignorance of the full consequences of his decisions does not vitiate their voluntariness." 54 The Court also held in Colorado v. Spring that a suspect's ignorance of the subject matter of the interrogation is not relevant to "whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege" against selfincrimination. 55 Invocation, however, is distinguished from waiver in that invocation 46. Doyle v. Ohio, 426 U.S. 610, (1976). 47. Id at Id. at Id. at See id. at North Carolina v. Butler, 441 U.S. 369, 373 (1979). 52. Id. 53. Connecticut v. Barrett, 479 U.S. 523, 529 (1987). 54. Id. at 530 (citing Oregon v. Elstad, 470 U.S. 298, 316 (1985)). 55. Colorado v. Spring, 479 U.S. 564, 573 (1987).

9 2012] IMPRACTICAL EFFECT OF SELECTIVE INVOCATION 185 may not be implied 56 and requires law enforcement officials to "cut-off questioning" and "scrupulously honor" the decision of the person in custody. 5 7 In Michigan v. Mosley, the Court held that a suspect may invoke the right to remain silent at any time, requiring the interrogation to cease and the decision to be "scrupulously honored." 58 The Court reasoned that the "requirement that law enforcement authorities must respect a person's exercise" of his "option to terminate" custodial interrogation "counteracts the coercive pressures of the custodial setting." 59 However, the Court noted that the termination of the interrogation does not "create a per se proscription of indefinite duration," 60 meaning that after sufficient time the interrogation may resume, at which point the suspect may choose to reinvoke the right to remain silent. As the Court held in Berghuis v. Thompkins, invocation must also be unequivocal and unambiguous in order to be effective. 6 1 The Court reasoned that such a requirement "results in an objective inquiry that 'avoid[s] difficulties of proof and... provide[s] guidance to officers' on how to proceed in the face of ambiguity." 62 Thus, law enforcement officials may continue interrogating a suspect and are not required to obtain a waiver even if a suspect has literally remained silent. 63 The Court's decisions post-miranda have scaled back the protections given to criminal suspects regarding their right to remain silent during custodial interrogations, altering the rules based on logical and practical concerns relative to law enforcement's and criminal defendants' interests. 64 This alteration can be seen in how the Court has distinguished between invocation and waiver. 65 Although law enforcement officials are required to administer the Miranda warning, the burden rests with the suspect to invoke or waive his right to remain silent. 66 This delineation goes to the 56. See Berghuis, 130 S. Ct. at Michigan v. Mosley, 423 U.S. 96, (1975). 58. Id. 59. Id. 60. Id at See Berghuis, 130 S. Ct. at Id. (quoting Davis v. United States, 512 U.S. 452, (1994) (requiring unequivocal and unambiguous language in invoking the right to counsel)). Courts have noted, however, that invocation does not require the use of a "talismanic phrase" or any other legally operative language in order to be effective invocation. See, e.g., Arnold v. Runnels, 421 F.3d 859, 866 (9th Cir. 2005). 63. See Berghuis, 130 S. Ct. at See WHITE, supra note 16, at See, e.g., Berghuis, 130 S. Ct. at ; Barrett, 479 U.S. at 529; Spring, 479 U.S. at 573; Butler, 441 U.S at 373; Mosley, 423 U.S. at See Berghuis, 130 S. Ct. at ; Butler, 441 U.S. at 373; Mosley, 423 U.S. at

10 186 CRIMINAL AND CIVIL CONFINEMENT [Vol. 38:177 central purposes of the Miranda decision, which was not only to extend Fifth Amendment protection to post-arrest custody, but also to require that a suspect be warned of his constitutional rights as a "prophylactic" rule in order to safeguard the interests of criminal suspects, as well as those of law enforcement officials, while involved in custodial interrogation. 67 The Court's decisions regarding the right to remain silent suggest the dual purpose of helping law enforcement officials in virtuously and effectively performing their duties as well as allowing criminal defendants to knowingly and voluntarily exercise their constitutional rights. Thus, the rules governing the right to remain silent have always been rooted in the logical and practical concerns regarding these legitimate interests, and any change in the law relating to the right to remain silent should take into account such a balancing of interests. III. THE RIGHT TO REMAIN SELECTIVELY SILENT Recently, federal circuit courts have held that criminal suspects have the right to remain partially or selectively silent during custodial interrogations without fear that their silence may be used against them as affirmative evidence of guilt. 68 The justifications used by the circuit courts in coming to these conclusions vary, but are all essentially influenced by the Supreme Court's prior decisions interpreting Miranda and the right to remain silent. 69 However, the Supreme Court has never explicitly held that a suspect has the right to remain selectively silent, and the circuit courts run the serious risk of having their doctrine overruled by over-extending Miranda and subsequent Supreme Court decisions. A. The Right to Remain Selectively Silent in the Ninth Circuit: Hurd v. Terhune In its recent decision in Hurd v. Terhune, the Ninth Circuit held that the California Court of Appeals committed reversible error by allowing state prosecutors to present evidence that the defendant, Dale Hurd, refused to re-enact the events that lead to the death of his ex-wife, Bea. 70 Hurd claimed to have accidentally shot Bea while showing her how to operate a 67. See Butler, 441 U.S. at 374; Miranda, 384 U.S. at , Hurd, 619 F.3d at ; Scott, 47 F.3d at 907; Canterbury, 985 F.2d at See, e.g., Hurd, 619 F.3d at (prohibiting the use of post-arrest silence against a criminal defendant in court, with the burden on the government to show either a waiver or an ineffective invocation); Scott, 47 F.3d at 907 (explaining lack of speech does not waive suspect's right to silence); Canterbury, 985 F.2d at 486 (using post-arrest silence in suspect impeachment at trial violates the Fourteenth Amendment if Miranda warnings were administered). 70. Hurd, 619 F.3d at 1082.

11 2012] IMPRACTICAL EFFECT OF SELECTIVE INVOCATION 187 handgun. 7 ' After calling the police, Hurd was taken into custody and read his Miranda rights. 72 During his time in custody, Hurd cooperated with investigators and expressed his intent to do so without an attorney present; however, upon being initially asked to re-enact the events that lead to Bea's death, he refused. 73 Throughout the remainder of the questioning, Hurd continued to cooperate with investigators intermittently asking Hurd to reenact the events, despite his refusal to do so.7 4 During the prosecution's opening arguments, case-in-chief, and closing arguments, the State emphasized Hurd's unwillingness to re-enact the events that lead to Bea's death as affirmative evidence of his guilt, even going so far as playing the tape of Hurd's interrogation and counting the number of times Hurd refused. 75 Hurd was found guilty by the jury of first degree murder and sentenced to life in prison with the possibility of parole. 76 After appealing the decision to the California Court of Appeals, Hurd petitioned for a writ of habeas corpus, which was denied by the United States District Court for the Central District of California. The Ninth Circuit Court of Appeals granted the petition and held that Hurd's refusal to re-enact the events that lead to Bea's death was a proper invocation of his right to remain silent; 7 8 its decision was based on Miranda, Doyle, and Berghuis.7 9 According to the Ninth Circuit, since Miranda held that "the mere fact that [the suspect] 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," it logically follows that Miranda allows a person to be selectively silent. 8 0 Furthermore, the Doyle decision provided the proposition that such silence cannot be used at trial as affirmative evidence of guilt or for impeachment purposes, and relied on Berghuis for "the proposition that a voluntary confession should not be suppressed just because a defendant has refrained from answering other questions." 8 From this interpretation of Miranda and other Supreme Court precedent, the Ninth Circuit found that the right to remain silent is 71. Id. at Id. 73. Id. at Id at Id. 76. Id at Id. at Id. at Id. at 1082, Id at (citing Miranda, 384 U.S. at 445). 81. Id at 1088.

12 188 CRIMINAL AND CIVIL CONFINEMENT [Vol. 38:177 "not an all or nothing proposition" and "a suspect may remain selectively silent by answering some questions and then refusing to answer others without taking the risk that his silence may be used against him at trial." 82 B. The Right to Remain Selectively Silent in the Seventh and Tenth Circuit Courts The Seventh and Tenth Circuits have also read Miranda and subsequent Supreme Court precedent to include a right to remain selectively silent. 83 However, unlike the Ninth Circuit in Hurd, the Seventh and Tenth Circuits failed to elaborate on their reasoning for finding the existence of the right to remain selectively silent. 84 Despite this lack of explanation, the Seventh and Tenth Circuits do provide some insight into how the rule is apparently supposed to function in criminal proceedings as well as provide value in support of this doctrine. 85 The Seventh Circuit concluded that a criminal suspect has the right to remain selectively silent in United States v. Scott. 86 In Scott, the defendant was convicted of four counts of drug trafficking and customs violations in connection with illegal marijuana importation from Jamaica." After receiving his Miranda warning, the defendant admitted his role in the conspiracy as the person designated to collect money from the marijuana sales. 8 8 At trial, the defendant testified that he was actually sent to collect money to repay a loan owed to another in Jamaica and sought to preclude his earlier silence of this fact from the jury by arguing that he had invoked his right to remain silent. 89 Although the Seventh Circuit found against the defendant by concluding that at no time during his interrogation did he invoke his right to remain silent, the court did note that "a suspect may speak to the agents, reassert his right to remain silent or refuse to answer certain questions, and still be confident that Doyle will prevent the prosecution from using his silence against him." 90 The Tenth Circuit also concluded that a criminal suspect has the right to remain selectively silent in United States v. Canterbury. Canterbury involved the illegal possession of an unregistered firearm by the 82. Id. at See Scott, 47 F.3d at 907; Canterbury, 985 F.2d at Scott, 47 F.3d at 907; Canterbury, 985 F.2d at See Scott, 47 F.3d at 907; Canterbury, 985 F.2d at Scott, 47 F.3d at Id. at Id. 89. Id. at Id at 907.

13 2012] IMPRACTICAL EFFECT OF SELECTIVE INVOCATION 189 defendant. 9 1 On appeal, the defendant claimed that his due process rights had been violated when the trial court allowed the prosecution to ask a series of questions about his failure to tell officers that he had been "set up." 92 The Tenth Circuit ruled that "when a defendant answers some questions and refuses to answer others, or in other words is 'partially silent,' this partial silence does not preclude him from claiming a violation of his due process rights under Doyle." 93 The Tenth Circuit ultimately concluded that the purpose of the prosecution's questioning was to prove the defendant's guilt since the prosecutor focused on the fact that an innocent person would have told officers about the "set up" theory. 94 These cases support the conclusion that criminal suspects have the right to remain selectively silent, but still incorrectly apply Supreme Court precedent. The main difference between these cases and Hurd is the Ninth Circuit's reliance upon the Court's decision in Berghuis. These cases are still susceptible to the issues surrounding the doctrine of selective silence. 9 These are important cases to note, nonetheless, since they aided the Ninth Circuit in the Hurd decision 96 and continue to be followed by the Seventh and Tenth Circuits. 97 C. The Misapplication of the Right to Remain Silent in Hurd v. Terhune The Ninth Circuit, in applying the doctrine of selective silence, misapplied the rules set out by the Supreme Court and its subsequent cases concerning the right to remain silent. According to the court in Hurd, selective silence functions at the lowest possible level by allowing a suspect to decide which questions he wishes to answer and those he does not. 98 The Ninth Circuit's analysis, however, misapplies Supreme Court holdings and fails to take into account the plain meaning of the Court's words in Miranda and subsequent cases. 99 The decision in Miranda was meant to be applied in cases where a suspect initially chooses to cooperate 91. Canterbury, 985 F.2d at Id. at See id. at Id 95. See discussion infra Part IV, VI. 96. See Hurd, 619 F.3d at (citing Canterbury, 985 F.2d at 486; Scott, 47 F.3d at 907). 97. See United States v. May, 52 F.3d 885, 890 (10th Cir. 1995); Scott, 47 F.3d at 907; Canterbury, 985 F.2d at Hurd, 619 F.3d at Miranda, 384 U.S. at 445; Hurd, 619 F.3d at 1084; see, e.g., Berghuis, 130 S. Ct. at ; Barrett, 479 U.S. at 529; Butler, 441 U.S. at 373; Mosley, 423 U.S. at

14 190 CRIMINAL AND CIVIL CONFINEMENT [Vol. 38: 177 with the police, but later decides to invoke his right to remain silent.' 00 The Ninth Circuit's use of the term "invocation" is essential because invocation is meant to halt questioning, a requirement that must be "scrupulously honored" by law enforcement. 10 If Hurd had invoked his right to remain silent, investigators should have honored that request.1 02 However, Hurd explicitly made clear his intention to cooperate with the police and only refused to re-enact the events leading to Bea's death, never making clear that he wished the interrogation to cease. 0 3 The Ninth Circuit also misapplied Berghuis in holding that Hurd unequivocally and unambiguously invoked his right to remain silent.1 04 The Ninth Circuit found that Berghuis stood for the proposition that a confession should not be suppressed just because a suspect has refused to answer some questions posed to him; however, such a reading is clearly erroneous since Berghuis stands for the proposition that invocation must be clear and unambiguous. 0 5 Berghuis is read to mean that unless a suspect has unequivocally and unambiguously invoked his right to remain silent, his words, or lack thereof, can be interpreted as a waiver of his right to remain silent and used against him at trial as affirmative evidence of guilt.1 06 The Ninth Circuit uses Berghuis to advance the doctrine of selective silence in a manner that was not intended by the Court.1 07 The Berghuis decision was meant to relieve an ambiguity in how law enforcement officials were to determine whether a criminal suspect had invoked or waived his right to remain silent and, if at all, scaled back protections associated with this right. 0 8 The Court's decision was not intended to extend the right in such an open-ended manner. Hurd was wrongly decided and stands for a much broader doctrine than intended by the Supreme Court: a decision that will significantly impact how the lower courts will apply the right to remain silent See Miranda, 384 U.S. at See Mosley, 423 U.S. at , See id Hurd, 619 F.3d at See Berghuis, 130 S. Ct. at ; Hurd, 619 F.3d at See Berghuis, 130 S. Ct. at ; Hurd, 619 F.3d at See Berghuis, 130 S. Ct. at See id; Hurd, 619 F.3d at See Berghuis, 130 S. Ct. at See, e.g., United States v. Arballo-Villa, No. CR TUC-DCB(HCE), 2010 WL , at *5 (D. Ariz. 2010); United States v. Diermyer, No. 3:10-cr-071-HRH-JDR, 2010 WL , at *4-5 (D. Alaska 2010).

15 2012] IMPRACTICAL EFFECT OF SELECTIVE INVOCATION 191 IV. SELECTIVE SILENCE AND SUPREME COURT PRECEDENT Based on Supreme Court precedent, the doctrine of selective silence is not aligned with the law surrounding the right to remain silent. As a threshold matter, selective silence does not comport with the general purposes behind the modern Fifth Amendment right to remain silent. The right to remain silent is rooted in the "due process-voluntariness" test and in the Miranda decision to extend the right to custodial interrogations and provide a mandatory warning of this right to criminal suspects." 1 0 Allowing a criminal suspect to be selectively silent does little to advance these root purposes and, thus, could not have been the intent of the Supreme Court. More specifically, however, the doctrine of selective silence conflicts with the Court's determinations about invocation and waiver.' Additionally, the use of a criminal suspect's intermittent silence at trial does not conflict with the Court's decision in Doyle.' 12 Based on these considerations, the doctrine of selective silence is neither implicit nor expressly authorized by the Court and, in fact, frustrates and contradicts the rules regarding the right to remain silent. A. Invocation and Waiver Under the Right to Remain Selectively Silent Selective silence, in essence, requires a criminal suspect to both invoke and waive his right to remain silent while he is asked questions he chooses to answer or not to answer. The switch back and forth between invocation and waiver creates significant problems for prosecutors and defense attorneys who seek to admit or suppress evidence according to the letter of the law set out by the Supreme Court in Miranda and its subsequent cases. First, in terms of invocation, an officer performing an interrogation of a criminal suspect must "scrupulously honor" any invocation of the right to remain silent and cease questioning." 3 Should a criminal suspect invoke his right to remain silent on a specific question or line of inquiry, the extent of that suspect's invocation may not be clear to the interrogating officer. This can create practical problems for officers who may want to continue questioning, as they are allowed to under the Fifth Amendment,11 4 but do not know whether this will be in defiance of the doctrine of selective silence. Hence, interrogating officers could run the risk of violating a 110. See Miranda, 384 U.S. at ; Brown, 297 U.S. at ; see also WHITE, supra note 16, at See, e.g., Berghuis, 130 S. Ct. at ; Barrett, 479 U.S. at 529; Butler, 441 U.S. at 373; Mosley, 423 U.S. at See Doyle, 426 U.S. at Mosley, 423 U.S. at Id. at

16 192 CRIMINAL AND CIVIL CONFINEMENT [Vol. 38:177 suspect's rights by inadvertently failing to "scrupulously honor" such invocation which, in turn, may lead to the suppression of statements obtained through interrogation. Clearly, such an outcome was not intended by the Court when this requirement was created. Second, the doctrine of selective silence does not comport with the Supreme Court's decision in Colorado v. Spring. In Spring, the Court held that law enforcement officials were not required to inform criminal suspects of the subject matter of their interrogation. 115 According to the Court in Spring, "a valid waiver does not require that an individual be informed of all information 'useful' in making his decision or all information that 'might... affec[t] his decision to confess."' 1 16 The doctrine of selective silence, which implies that a criminal suspect can decide what interrogation questions to respond to, cannot be aligned with the Court's holding in Spring because a criminal suspect cannot reasonably invoke the right to remain silent on a particular topic when he is ignorant or unsure of the subject of the interrogation. Furthermore, the Court in Spring was likely preserving law enforcement's tactic of not informing a suspect of the subject matter of the interrogation in order to aid in obtaining necessary and truthful statements from a suspect Selective silence, thus, would effectively diminish the Court's holding in Spring and create legal disputes over these competing rules. B. Selective Silence and the Doyle Error The Court's decision in Doyle makes a criminal suspect's post-miranda warnings silence inadmissible at trial; however, the decision can be read as inapplicable in situations where a suspect has clearly waived his right to remain silent The issue in Doyle centered around the defendant's silence at the time of arrest and his subsequent explanation at trial.1 9 At no time did the defendant waive his right to remain silent.1 20 Therefore, the logic that he remained silent for any number of reasons, including because he had invoked his right to remain silent, is sound.1 21 Under such circumstances it would be "fundamentally unfair" and "a deprivation of due process" to admit such silence at trial as affirmative evidence of 115. Spring, 479 U.S. at Id. at 576 (citing Moran v. Burbine, 475 U.S. 412, 422 (1986)) See Spring, 479 U.S. at See Doyle, 426 U.S. at The Court in Doyle discusses silence in the wake of invocation, not in the wake of waiver. Id Id. at See id at See id. at

17 2012] IMPRACTICAL EFFECT OF SELECTIVE INVOCATION 193 guilt.1 22 When a suspect waives his right to remain silent, however, he waives all privileges associated with that right, including the privilege of not having his silence subsequently used against him at trial.1 23 The situation presented in Doyle is distinguished from others where a suspect is selectively silent by the fact that such situations always involve initial waiver followed by subsequent invocation and waiver. 124 Such situations do not necessarily give rise to silence, which is "insolubly ambiguous," 25 because the line of questioning during interrogation can be determined to have reached a point where the trier of fact can reasonably conclude that the refusal to answer is suspicious or even possibly incriminating. This conclusion is supported especially when the suspect cooperates during the interrogation. The Hurd decision exemplifies this point because in light of all the circumstances of the defendant's interrogation, a trier of fact could reasonably find that his refusal to reenact the events that led to his wife's death was indicative of his guilt. Of course, in situations such as these, the suspect is always able to invoke his right to remain silent and effectively cut off all questioning.1 26 However, if the suspect chooses silence in response to a particular question and then waives his right to remain silent by answering other questions, admitting evidence of his silence before his subsequent waiver would not be fundamentally unfair. This would be the case because the circumstances under which the suspect has cooperated could reasonably lead the trier of fact to conclude such silence was induced by the potential negative impact that would result from answering the question. Under these circumstances, admitting evidence of silence would not be offensive to the suspect's due process rights since inferences could be reasonably drawn from a suspect's intermittent and particularly invoked silence during interrogation. V. SELECTIVE SILENCE: IMPRACTICAL AND UNDULY BURDENSOME Selective silence also creates substantial obstacles to the effective administration of custodial interrogations by law enforcement officials. In order to see how the doctrine of selective silence is unduly burdensome to the central purposes and goals of law enforcement, one must first have a basic understanding as to how interrogations are performed post-miranda and the importance of effective fact gathering by law enforcement officials. Based on these considerations, selective silence functions to inhibit and 122. Id. at See, e.g., Barrett, 479 U.S. at 529; Spring, 479 U.S. at 573; Butler, 441 U.S. at See, e.g., Hurd, 619 F.3d at See Doyle, 426 U.S. at Mosley, 423 U.S. at ; see Berghuis, 130 S. Ct. at 2264.

18 194 CRIAINAL AND CIVIL CONFINEMENT [Vol. 38:177 impede law enforcement officials from effectively performing their duties during this important phase of the criminal process. A. Miranda Warnings and Custodial Interrogations: Techniques and Tactics Law enforcement officials apply a variety of tactics and techniques to coax truthful statements from criminal suspects during custodial interrogations.1 27 These tactics and techniques are designed to work within the framework of Miranda and its subsequent decisions. 128 Such strategies include: "[d]elivering Miranda warnings in a [n]eutral manner"; "[d]eemphasizing the [s]ignificance of the Miranda warnings"; "[p]roviding the [s]uspect with an [o]pportunity to tell his side of the story"; "convinc[ing] the suspect that the interrogator is acting in his best interests"; "giv[ing] the suspect an opportunity to change his mind"; and "prompting the suspect to waive his rights."l 29 These strategies are based on the underlying idea that it is in the suspect's best interests to waive his rights and make a statement.1 30 Furthermore, from the standpoint of law enforcement and prosecution, it is key to obtain some statement from a criminal suspect in order to "lock" him into a story that may later indicate the suspect's truthfulness.131 The effectiveness of these techniques is difficult to gauge, though their impact is clearly noticeable; suspects rarely invoke their rights.1 32 Only twenty percent of suspects initially invoke the rights provided under Miranda and almost none assert their rights after a valid waiver.1 33 These staggerin statistics have led Miranda to be characterized as a "spectacular failure."i Yet, this characterization is an over-statement considering the broad protections Miranda and the subsequent case progeny provide to criminal suspects. Although many believe that these strategies employed by law enforcement officials are overwhelming for criminal suspects and have led to a decline in the protections afforded by Miranda and its subsequent 127. See generally WHITE, supra note 16, at ; FRED E. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS (4th ed. 2004) See WHITE, supra, note 16, at Id. at Id. at See generally INBAU, supra note Marcy Strauss, The Sounds of Silence: Reconsidering the Invocation of the Right to Remain Silent Under Miranda, 17 WM. & MARY BILL RTS. J. 773, 774 (2009) Id Sandra Guerra Thompson, Evading Miranda: How Seibert and Patane Failed to "Save" Miranda, 40 VAL. U. L. REv. 645, 645 (2006); George C. Thomas III, Miranda's Illusion: Telling Stories in the Police Interrogation Room, 81 TEX. L. REv. 1091, 1092 (2003).

19 2012] IMPRACTICAL EFFECT OF SELECTIVE INVOCATION 195 decisions,1 35 this conclusion is false considering the nature of the tactics used and the actual protections provided to criminal suspects. The general purpose of custodial interrogation is to obtain the truth in order to effectuate the fair administration of the law. These strategies do not make use of third degree tactics, nor do they employ morally questionable techniques in obtaining truthful statements from criminal suspects. In fact, law enforcement officials are cognizant of the law and design such techniques in order to not offend the principles of Miranda and the subsequent decisions.1 36 Furthermore, such techniques do not lessen the rights afforded to criminal suspects, as the suspects are still informed of their Miranda rights and are not prevented from asserting those rights. These strategies are merely used to convince a criminal suspect to voluntarily admit the truth when investigating criminal activity. Hence, the importance of maintaining law enforcement's effectiveness in obtaining criminal confessions is paramount in relation to their over-arching duties because admissions from criminal suspects provide the easiest and most effective way of gathering truthful and reliable facts. This leads to an expedited and legitimate end to the criminal process. Such effectiveness should be promoted by all available means in order to effectuate the purpose and goals of law enforcement, so long as they do not offend a suspect's right to due process or privilege against self-incrimination. B. Practical Issues in Applying the Selective Silence Framework Allowing criminal suspects the advantage of selective silence during the interrogation process raises many practical concerns for law enforcement officials and prosecutors in the performance of their duties. These practical concerns lead to the potential ineffectiveness of the interrogation process: first, selective silence allows criminal suspects to provide information which may be probative of their innocence, but not of guilt; second, the extent and scope to which a criminal suspect invokes his right within a certain line of questioning may be difficult to determine by law enforcement officials; and third, if such a right to freely invoke and waive the right to remain silent existed, there would be a greater potential for conflict during litigation. The basic premise of selective silence is that criminal suspects who initially waive their right to remain silent are able to decide what information they wish to provide to law enforcement officials by simply 135. See, e.g., WHITE, supra note 16, at See generally INBAU, supra note 127, at (providing information on court decisions and essential rulings to law enforcement in order that they may properly perform interrogations).