Record by Proxy: Vicarious Consent Just Crept Into Massachusetts

Boston has been inundated with photos and surveillance tapes for the worst of reasons since April 15, 2013.  We learned, or perhaps were reminded, that we are being watched.  And, as a matter of legal fiction, we consent to being watched pretty much all the time once we leave home.  What we do and with whom may be caught on still or moving pictures.  Outward gestures, glances, clothing choices and all non-verbal communication are fair game.  What we say, however, is usually thought to be a private matter.  The government needs to obtain a warrant to listen in.  This is particularly true inside our homes.  Those conversations are certainly within a sphere of privacy.

The thought that comes to mind in cases of wiretapping is of political corruption or organized crime - secretly recorded conversations, maybe with informants wearing wires.  It is not of a videorecording device in the bedroom of a family member to catch a suspected pedophile.  In Commonwealth v. F.W., 465 Mass. 1 (2013), a woman had been sexually assaulted by her paternal grandfather as a young girl.  While she did not report the abuse to authorities, she did tell her grandmother but it made little difference.  Understandably, she became distant from her father's side of the family.  For unexplained reasons, as an adult, she resumed contact with this branch of the family.  The branch of the family, including the (allegedly) abusive grandfather live at the woman's father's home.

This woman has a sister who is a non-verbal, autistic, minor child.  Despite her disabilities, the sister conveyed a joyful disposition, often smiling and acting affectionately.  Thus, the woman became alarmed when her otherwise happy sister became withdrawn, sullen and tearful.  The woman suspected the grandfather of sexually assaulting her.  Because her sister cannot speak or, it seems, convey specific information through a computer writing program, asking her about allegations would not be productive. The woman did not remove the child from the home, but instead set up a videorecording device in her father's bedroom to confirm her suspicions.  Which, sadly, it did.

The videorecording device captured video of the grandfather (allegedly) unzipping his trousers and forcing oral sex upon his disabled granddaughter.  The defendant did not move to dismiss the video itself; he moved to dismiss the statement on the recording where he (allegedly) said - as he held the back of the victim's head near his crotch.  The statement, "put it in your mouth" was the subject of the motion to suppress which was premised upon the federal wiretap statute that prohibits intentional interception of an oral communication. 

Query whether, if the case went to trial, assuming the video came in along with evidence of the victim's change in demeanor and the woman's testimony of her former abuse by the defendant (as part of a pattern or practice) anyone would need to hear that statement in order to convict him of the charges related to sexual assault of a minor.  It seems highly unlikely.

The Commonwealth, for reasons that remain a mystery, argued that the defendant had no reasonable expectation of privacy in the statement because the recording was not in a private enough place since the defendant did not have exclusive use of the bedroom where the woman set up the camera.  This "argument" does not even make sense: the man was in his own home, a home he shared with others, but clearly within the sphere of privacy protected by the Fourth Amendment and Art. 14 in light of the fact that they both stress the idea of security in one's home.  The SJC made short shrift of that.  Conversations inside the home are private enough to warrant protection.

The argument, presumably by the defense, was that the federal wiretapping statute applied in that what the woman did by recording a conversation to which she was not privy and in which no party had consented violated the federal law.  In response, the government argued that the statement should not be suppressed because the woman could vicariously consent to a recording of the conversation for her disabled sister.

Ummm...no.  The Fourth Amendment and Art. 14 apply to unreasonable searches and seizures by the government.  It does not apply to sisters concerned about their autistic siblings.  While it is true that if the sister had intended to intercept an oral communication or knowingly intercepted an oral communication in violation of the statute, the statement could be subject to suppression (or other exclusion from trial).  But, those were not the facts of the case.  The adult sibling did not recall any statements by her grandfather to her when he (allegedly) abused her.  The adult sibling could not have intended to intercept oral communication because the minor child could not speak.  To the extent that ANY statement would be uttered (and there would be no reason to think there would be), it would be a surprise.  The purpose of setting up the camera was to confirm the suspicion of abuse, not to intercept an oral communication.  Because any violation of the statute requires scienter, the adult sibling did not violate it.

It is inconceivable that the events would have taken a different course if the video were silent.  Law enforcement reviewed information provided voluntarily by a citizen who conveyed not only her own history with the defendant but evidence of the defendant sexually assaulting a disabled child.  Upon review of that evidence, they acted appropriately in calling the defendant and asking him to come to the police station which he did. 

The police provided constitutional safeguards pursuant to Miranda v. Arizona and obtained a valid waiver of rights, pursuant to due process of law as deemed adequate by Supreme Court decisional law.  The officer asked the defendant about his past contact with the woman and with the victim.  The defendant not only admitted his actions but when asked specifically about observations the officer (hypothetically) saw on the video, the defendant said that he, "just wanted to see what she would do and got carried away."  There was no basis to move to suppress that confession.  With or without the statement to the child, this case was a good candidate to ask for mercy from the court.  There is no identification problem; there is no question of the offense; there is no consent defense available to sexual assault on a minor, disabled child.

The statement itself adds nothing to the prosecution's case and even if it could be suppressed, gains nothing for the defendant.  This was a clear case of a defense attorney without a strategy or purpose resulting in potentially disastrous decisional law.

There may be evidentiary reasons to exclude the video and even the statement from a trial, but suppression is unavailable.  The insidious argument that the federal wiretapping statute applies to such a recording is not only terrifying but it is manifestly wrong.  There was no intent to capture an oral communication; a woman set up a videocamera that the parties did not know was there which could happen to, oh I don't know, a presidential candidate at a private, expensive dinner party.  Even if it were subject to the wiretap statute and even if there were a hint of a willful violation of that statute, that might present a civil charge against the woman or a request to the federal government to prosecute.  It might even advance reasons to exclude the evidence from trial, but that does not make it eligible for suppression.


The first question regarding a motion to suppress is to discover the reason for suppression, if any.  Given that there was no government action, the only authority for suppression would be the statute.  But, there was no knowing intention to intercept an oral communication and thus the statute does not apply.  That ends the discussion.

Of course, that did not stop the SJC from taking the question on a rare interlocutory appeal by the defendant and doing the analysis backward.  Rather than starting with the statute to see if there was a violation, it started with the defendant's reasonable expectation of privacy for the conversation which is just...weird.  The question on the constitutional principle is not one of privacy at all, it is privacy from THE GOVERNMENT.   From the government, people have a right to privacy in the area around their homes, inside their homes and in their bedrooms.  But, the government did not invade a the area around a home or inside a home or a bedroom.   The government looked at a videorecording and questioned a defendant who confessed. In any event, the SJC determined that people DO have a reasonable expectation of privacy inside bedrooms of their own home (whew!) and then addressed the vicarious consent issue.

Vicarious consent is a bizarre legal fiction that came into being when parents in bitter divorces started intentionally recording conversations between their minor children and their former spouses on their home telephones.  Neither the child nor the other parent knew of the recording.  That DOES violate the federal wiretapping statute because...it...is...wiretapping.  And it is a violation of the federal statute which requires that at least one person to consent to the recording (and it really offends the concurrent Massachusetts law which requires all party consent - a fact utterly ignored by the SJC in its vicarious consent ruling).

The parent who recorded the conversation illegally could claim that s/he vicariously consented on behalf of the minor child and therefore single party consent would be satisfied.  In Pollack v. Pollack, 151 F.3d 601 (6th Cir. 1998) the mother recorded conversations between her minor child and the child's father and step-mother and provided the offending ones to her lawyer who then contacted the authorities about the father's emotional abuse of the child.  The father sued the mother under the federal wiretapping statute.  The mother claimed that she only recorded the conversations due to a concern for her daughter.  While the Court of Appeals for the Sixth Circuit applied the fictional vicarious consent doctrine, it did not conclude that the mother acted solely for pure purposes and remanded the case with instructions of application of the doctrine itself.

Vicarious consent has never been accepted formally by the Supreme Court for any purpose, let alone in  criminal case alleging a violation of the wiretap statute.  The courts that have accepted it seem to apply the doctrine in family disputes and related cases.  The doctrine makes some sense in the matter of child custody cases: if the party can demonstrate that the recording was not out of malice and was made solely out of concern for the child and the recording itself illustrates some nefarious actions by the other parent...then the court might be warranted in restricting or limiting or constraining visitation with the child, or even ordering some counseling for the parent...not send the parent to prison.

When permitted, vicarious consent has applied solely to parents and it seems applicable solely in civil disputes.  But, in Commonwealth v. F.W., the SJC allowed an adult sibling acting in the best interest of the minor child to consent vicariously to recorded conversations between the (allegedly) abusive grandfather and the child.  It did so, presumably, because the child's father and grandmother incomprehensibly did not step in to protect the little girl.  The sister's actions were noble and pure in every sense, but that does not make them a legitimate exercise of vicarious consent, even if vicarious consent were a legitimate concept in a criminal case. 

Even the idea of vicarious consent to record a "conversation" in which only one party could speak is bizarre.  Query the application if an actual, voluntary conversation took place, perhaps between a 15 year old girl and her 17 year old boyfriend; is that enough to establish vicarious consent for a parent or a concerned sibling to record the conversation?  What about a concern about smoking marijuana?  Hanging out with a rough crowd?  Given the ruling in Commonwealth v. F.W., what authorizes vicarious consent for conversations under the federal law?  And, by whom?  What application is there of the Massachusetts law which requires all party consent to recorded conversations?  Even if there is some validity to a notion of vicarious consent, tracking criminal offenses between family members does not fall within its ambit.

This is not to say that the woman was wrong to make a videorecording.  It was not wrong of her to turn the evidence over to the police.  It was not wrong for the police to question and arrest the defendant upon his confession.  And, it is not wrong to prosecute the defendant for heinous crimes against one of the most vulnerable members of society.  It is not even wrong to move to admit the videorecording and the statement recorded. 


Knowing that - regardless of the ruling on the admission in evidence of the statement - the video of the defendant (allegedly) opening the zipper of his pants and holding the back of his disabled granddaughter's head to his opened zipper would be admissible in court, there was no rationale to move interlocutorily regarding the statement.

Had the courts simply analyzed the statute and not the substantive issue, the result would have been the same (no suppression of the video or statement) but vicarious consent would not have been introduced into Massachusetts jurisprudence.  This is why it is really important to read the statutes first and seek their application after, not the other way around.

The Devolution of Individual Liberties on a Case by Case Basis

The Fourth Amendment prohibits unreasonable searches of people, papers, possessions and places of residence. To establish reasonableness, the Amendment requires warrants to be both specific and based upon probable cause.   The question that arose in Missouri v. McNeely, SCT Docket No. 11-1425, was whether blood alcohol content in a driving under the influence case established a per se exclusion from the warrant requirement.  That answer is "no" but the result is a bit unsteady.  True understanding of the issue requires a bit of background.

The first case really addressing the invasion of a person's body by law enforcement is Rochin v. CA, 342 U.S. 165 (1952).  In that case, the Court concluded that the use of a stomach pump to remove potential evidence from an individual shocked the conscience violating principles of due process of law.  But, the history of that case must be understood in order to grasp the blase attitude of the Court in its decision in McNeely.  In People v. Rochin, 101 Cal.App.2d 140 (1950), the case overturned in Rochin v. CA, the California Court of Appeal found that the police broke into a man's house, asked him to answer a question he need not answer, watched him swallow two capsules, handcuffed him, transported him to a hospital and had his stomach pumped...for 2 morphine pills and a 60 month jail term...YET...because California did not accept the exclusionary rule, the Court of Appeals was bound by precedent to uphold the conviction.  The decision was scathing against the actions of the police, the ethics of the physician who conducted the stomach pump, and the lack of an exclusionary rule in California. 

Although the California Supreme Court refused to hear the case, two of those justices wrote powerful dissents stating, among other things, that police when left to their own devices cannot be trusted.  The two justices waxed poetic about the history, meaning and necessity of the specific warrant requirement and of the absolute need for the exclusionary rule in order to compel police to comply with the laws they, themselves, are charged with enforcing.  One dissenting judge even declared,

We are told by our national leaders that a state of emergency now exists throughout the world-that our liberties are in jeopardy-that to preserve those liberties we must unite with other free nations of the world in establishing the most potent military force of all time to resist totalitarian aggression. What are these liberties which are threatened? Is not the right of privacy, guaranteed by the above mentioned constitutional provisions, one of those liberties? There can be no question that the right of privacy is one of these fundamental rights, guaranteed by the Bill of Rights-the charter of our civil liberties. Could anyone imagine such right being any more ruthlessly violated under a totalitarian regime than it was in the case at bar? It makes little difference whether the minion of the law who perpetrates such outrages has the official title of commissar, gestapo, sheriff, policeman, constable, game warden, or whatnot, the violation of one's right of privacy is just as deplorable. Merely to say that what the officers did in this case, was wrong, is not enough-they will do it again and again if the courts continue to hold that the evidence they obtain by such unlawful means may be used in criminal prosecutions.

This was 1950.  Those judges were the finest example of what the Framers hoped for with an independent judiciary.  No doubt, this led to the acceptance of the certiorari petition.

In Rochin v. CA, which predates the incorporation doctrine, the Court reversed under the 14th Amendment Due Process Clause.  The best thoughts in that decision emanate from the two concurring opinions: of Justice Black - who called the amorphous nature of due process of law into question, concerned about its vagaries and demanding the incorporation of the Bill of Rights under the 14th Amendment; and Justice Douglas who remarked, "I think that words taken from his lips, capsules taken from his stomach, blood taken from his veins are all inadmissible provided they are taken from him without his consent. They are inadmissible because of the command of the Fifth Amendment." Rochin v. CA, 342 U.S. at 179 (Douglas, J. concurring).  To these Justices, this was a clear violation of the right not to be compelled to bear witness against oneself.

After Rochin, the Court decided the case of Breithaupt v. Abram, 352 U.S. 432 (1957).  Mr. Breithaupt was convicted of involuntary manslaughter after he caused an accident by driving erratically.  Injured and unconscious, at the hospital, a police officer directed a physician to draw blood which was then provided directly to the officer who had it tested at a police lab.  The results, indicating a high blood alcohol content, were admitted at trial. 

This did NOT shock the conscience of the Court as it was not brutal or offensive.  And, the majority went into a long description of the scourge of alcohol related deaths on the highway as reason for extreme measures.  It was 1957.  The highways had just been invented but airbags had not.  The dissents did not disagree with the problem of dangerous highways and inebriated drivers- merely the Court's role in the application of solution.  The whole point of due process is to remove certain rights from the reach of law enforcement...such as sticking a needle into a fellow human being in order to extract bodily fluids.  The dissenting justices correctly saw no difference between a stomach pump and a blood draw; no difference between the scourge of drugs and that of drunk driving.

Next came Schmerber v. CA, 384 U.S. 757 (1966) and perhaps the most remarkable aspect of the case is that by the time Mr. Schmerber was in the hospital arrested for driving under the influence, he already had a lawyer - who told him not to consent to a blood draw...so he did not consent and yet a doctor (allegedly treating him for his injuries) at the behest of a police officer drew his blood and gave it to law enforcement for analysis.  The Court found nothing wrong with this picture; indeed the majority opinion made up - with no supporting facts - that the police officer felt he had inadequate time to obtain a warrant and then with the stroke of a pen sanctioned police officers to order physicians to draw blood from suspects.

Again, the dissenters charged back: Justice Warren reiterating his dissent in Breithaupt and Justices Douglas and Black reiterated that compelling an individual to permit extraction of his bodily fluids is a violation of the 5th Amendment.  Indeed, they illustrate that the notion of "testimonial" and "communicative" evidence as a touchstone for acting as a witness against oneself has no foundation in precedent.  As to the 4th Amendment analysis, Justice Fortas even remarked in dissent that extracting blood by the state, particularly over protest, amounted to tortious violence.

Onward to Missouri v. McNeely where the Court remarkably combines all of the worst aspects of each of the prior cases to come to no real conclusion regarding the warrant requirement for extracting blood from one suspected of driving under the influence.  The Court ignores the significance of the Breithaupt case where Mr. Breithaupt was not only suspected of driving while inebriated, he killed people.  He was prosecuted for involuntary manslaughter, not driving under the influence.  The blood extracted from him while he was unconscious may or may not have influenced the guilty verdict.  But, once convicted, he did not even appeal.  His case came in through post-conviction habeas corpus, as an afterthought which may (or may not have) influenced the state and then the federal courts.

These massive procedural and factual differences were lost on the Court - they could not see the slippery slope and so slid down blindly.  Putting aside that appellate courts are not concerned with guilt or innocence, the other cases, Rochin and Schmerber - and McNeely - were prosecutions for the sins of drugs and drink and all came up on direct appeal.  They were policy-driven and not crime driven cases.  No one was hurt and nobody died.  Rochin was arrested in 1949 for morphine pills - the tactics were horrific and for what?  For a sixty day misdemeanor sentence.  In Schmerber, while the defendant was injured, no one else was involved.  He refused to blow into a newfangled Breathalyzer test (and his refusal entered in evidence without objection - the reason that 5th Amendment claim was rejected by the Court).  And, the purpose of the driving under the influence laws had been accomplished - he was off the road and would be for some time for the refusal of the breath test.  Still, he was more like Mr. Rochin and less like Mr. Breithaupt; but not to the Court, now bent on evidentiary science to prove guilt rather than constitutional principles to protect liberty.

By Mr. McNeely's case, all of the rules had changed: uniform rules on blood alcohol content came about due to federal funds for highway development and maintenance wherein Congress would only disperse funds to states that criminalized driving with blood alcohol content of .08 or higher.  That is, there is no magic number that indicates impairment - simply one Congress could agree upon before handing out money.  Breathalyzers became commonplace by the 1980's and are far less invasive: most states suspend licenses of anyone who refuses to submit, regardless of conviction.  Video is ubiquitous so that officers can film all of the roadside tests for view by a jury - or by a magistrate to issue a warrant for a blood draw.  And, communication has sped to the point of instantaneous connection wherein some states have developed a warrant procedure via email or Skype.

So, instead of walking through the history and rationale even of Breithaupt (where no other means had been developed to test blood alcohol content and the actual offense involved death), and revisitng the wisdom of Rochin, the Court veers into statistics and popularity of certain techniques - a course proper for a legislature, not a Court.  It then merely claims that there is no per se exigence related to driving under the influence and if a warrant can be obtained it should be...but if it's too much trouble, then it's not really a big deal.

At the same time, the Court acknowledges that most states have a warrant requirement and indicates that there are better, more consistent results with the warrant requirement and so obtaining and executing a warrant for a blood draw improves law enforcement overall.  Even though the results are more fair and less challenged when the police establish probable cause and present that to a detached magistrate for a ruling - and even though this enhances due process of law - the Court refuses to require it.

The McNeely decision splits up like this: Justice Sotomayor joined in full by Scalia, Ginsburg and Kagan makes this wishy-washy-cop-can-use-his-judgment-to-get-or-not-get-a-warrant determination and there is nothing inherently exigent about a "routine" driving under the influence case so the totality of the circumstances will dictate exigence.  In direct opposition is Justice Thomas who dissents (with a hypothetical about police watching a man carrying bundles of marijuana to a bonfire; it makes no sense but it is funny, though not intentionally so) by declaring that all driving under cases establish exigent circumstances to draw blood - no warrant, no problem.  Justice Kennedy joins the majority in part but really limits his decision to the statement that always dispensing with a warrant requirement is inconsistent with the Fourth Amendment.  

The most interesting - and bizarre - opinion is of the concurring in part and dissenting in part Justices Roberts, Alito and Breyer who desperately want to make a special exception for driving under the influence that would swallow the warrant requirement (which Justice Thomas just comes out and says) but they just...can't...get...there.  So, they like this idea better: driving under the influence presents presumptively exigent circumstances unless the police officer feels that he might be able to get a timely warrant.  They provide the examples of exigence and equate the need to extract blood from a lone driver pulled over for erratic driving to any of the following circumstances: a burning building (where police go in to SAVE people) or hot pursuit (where police are seeking to LIMIT damage of fleeing felons) or like having information about an injured person and entering a home to assist her.  That is NOT what blood alcohol content evidence is like at all.  It is not an exigent circumstance - it is simply very, very good evidence to convict someone for driving under the influence that dissipates over time.  But, investigating a crime and gathering evidence is not a reason to dispense with the Constitution.

In "routine" driving under cases, the refusal to blow into a breathalyzer or have a blood draw is enough, in most if not all states, to suspend a driver's license for several months.  Whether or not there is a conviction, that might be enough to keep the roads safer and wake the individual up to the potential danger involved in impaired driving.  And, isn't that the point of the policy?  No one is injured, no buildings are burning and no one is in further danger.  Taking blood under this rubric is much, much more like Rochin than it is like Breithaupt.   A plausible argument could be made that Mr. Breithaupt's treating physicians needed to draw his blood since he was unconscious and perhaps in need of more profound care requiring the medical personnel to know what was in his system to know what drugs not to give him.  Not perfect, but plausible.  All of the other cases involve police officers directing civilians to invade another person's body for evidence of a suspected crime where no one else was harmed - and the civilians DOING it with no court order - which is just mind-boggling, and terrifying, when one thinks about it.  There is not a chance that the Framers - who fought against the presence of an authoritative police state - intended this result.  It is just wrong.

The correct decision is the one lamented in the first Rochin case; the one where the frustrated judges adhered, kicking and screaming, to irrational precedent, practically begging the legislature to advance an exclusionary rule - and admonishing the tactics of the police and the ethics of the physician who pumped the defendant's stomach.  They waxed poetic about the role of government and the rights of the citizen.  Their eloquence persuaded, no doubt, the Court to take the certiorari and reverse the conviction out of sheer horror that the police could barge into someone's home and haul him out in handcuffs to have the contents of his stomach pumped into a bucket so they could prosecute him for essentially being a drug addict.  

The voices of the great Justices Douglas and Black harken to us to dispense with this idiocy that courts are here to enforce the will of the legislature or popular sentiment.  Courts are here to enforce the constraints of the Constitution whether people like it or they do not, whether it makes a police officer's job easier or it does not, whether it forces legislators back to law drafting or it does not.  Courts are here to protect individual liberties from the will of the masses.  That is exactly why Article III judges were given lifetime tenure.  

McNeely is a worthless non-decision that makes no change for the rights of individuals.  It does not enforce a warrant requirement to extract bodily fluids from a fellow human being.  It does not review the rationale behind any of the prior cases and reverse the misbegotten findings that blood is not testimonial in the same way that putting on a shirt is not testimonial.  It does not  venture into the meaning and purpose of being secure in one's person from an overeager government official.  

Recently, the Court ruled that it was trespass for drug sniffing dogs to poke around a yard thus requiring a warrant for that activity.  In McNeely, the very same Court ruled that it was NOT trespass for the police to order a civilian to perform a needless medical test by placing a sharp object into that person and - in the words of Justice Douglas - bloodletting.  Is there any more clear invasion of privacy than literally entering a body and removing its substances?  

This idea that the results of the blood test are somehow not testimonial, too, is laughable: asking someone to walk a certain way or put on a shirt is not the same as forcing him to sit still while a medical professional (whom he can now no longer trust to assist him in any medical treatment as the physician has become an agent of the government) draws his blood for the sole purpose of prosecuting him.   As Justice Black remarked, "[i]t is a strange hierarchy of values that allows the State to extract a human being's blood to convict him of a crime because of the blood's content but proscribes compelled production of his lifeless papers." Schmerber v. CA, 384 U.S. at 775 (Black, J. dissenting). 

The Court had the chance to do something profound, something grand, to restore so many rights taken away while promoting disastrous policies prohibiting alcohol and drugs; it could have required a warrant for every single medical invasion; it could have made a warrantless entry into a body presumptively unconstitutional as it does for entries into homes; it could have concluded that bodily fluids were encompassed in a privacy sphere requiring either the prohibition of use as testimonial evidence when taken by compulsion or a directive that due process requires significant protections to shield individuals from indignities and affronts to bodily integrity. Instead, it left everything in the hands of the police.  Not only does this result fail to provide any guidance, it is without question, the exact opposite of what Framers intended.

Sound of Silence

In human intercourse the tragedy begins, not when there is misunderstanding about words, but when silence is not understood. - Henry David Thoreau

This week, in Salinas v. Texas, the Court will ponder whether the prohibition of being compelled to bear witness against oneself is, under all circumstances, a right to remain silent. Almost half a century ago, frustrated and appalled by years of studies demonstrating police brutality both physically and psychologically, the Court sought, “a protective device to dispel the compelling atmosphere of the interrogation.” Miranda v. AZ, 384 U.S. 436, 465 (1966). In Miranda, the Court explained that if the police propose to interrogate a person, they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him PRIOR TO any interrogation. The fundamental right not to be compelled to be a witness against oneself harkens back to the 1600’s, was instituted in England through popular opinion and societal practice, ultimately led to the demise of the Star Chamber, carried over to the Colonies and is a bulwark of American jurisprudence.

Except when it’s not.

The late Chief Justice Rehnquist referred to the warning requirement in Miranda as a “constitutional rule” rather than a right - the tension in the constriction on the Miranda requirements and waiver of the warning emanates from the notion that it is more important to get confessions than it is to protect individual liberties. Miranda focused on the right to remain silent by safeguarding it with a prophylactic warning of the "right" to the presence of counsel at the interrogation. In Edwards v. AZ, 451 U.S. 477 (1981), the Court lasered in on this right to counsel: “the decision below misunderstood the requirement for finding a valid waiver of the right to counsel, once invoked.” Id. at 484. Not only is the right to counsel nowhere in the Fifth Amendment, but the concept of a right existing solely because it is invoked and being essentially waived if it is not invoked is a bizarre mutilation of the very foundational aspect of a "right" in the first place.

We need not “invoke” our right to free speech in order to protect it; we need not “invoke” our right to be safe from excessive bail; we need not "invoke" our right to bear arms. But, we need to “invoke” the right not to incriminate ourselves - and not just invoke - but do so unambiguously. Berghuis v. Thompkins, 130 S.Ct. 2250 (2010). Once the individual invokes the right to remain silent, the authorities MUST cease all questioning.  If the invocation is for the right to the presence of counsel, all questioning must cease until counsel arrives.  And, the invocation itself of either the right to remain silent or the request for a lawyer cannot be used against the defendant. Doyle v. Ohio, 426 U.S. 610 (1976). The problem with the "right to remain silent" inherent in Miranda is that it has been couched in this awkward rule that has been diminished over time. The right itself is not to be compelled to bear witness; not an invocation of silence.

It is fairly well accepted that warnings must be provided in custodial settings (although the concept of custodial is fairly narrow). It is equally accepted that most settings are not custodial (even if they are intimidating and exactly the circumstances condemned by Justice Warren in Miranda) and so no warnings are required. From the Court's view, “[v]oluntary confessions are not merely “a proper element in law enforcement,”, they are an unmitigated good,” ‘essential to society's compelling interest in finding, convicting, and punishing those who violate the law.’ Maryland v. Shatzer, 130 S.Ct. 1213 (2010).

But, silence is another story altogether. In Raffel v. United States, 271 U.S. 494 (1926), the defendant was convicted at a trial in which he did not testify; that conviction was reversed and the defendant testified at his retrial. Over objection, the government impeached the defendant with his prior silence as being inconsistent with his testimony. The Court stated, without deciding, that if the defendant had not taken the stand in his second trial, his silence in the first would be of no probative value. But, once he took the stand, he opened himself to all lines of impeachment; "[t]he safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf, and not for those who do."

The Court upheld its reasoning in Raffel in Grunewald v. United States, 393 U.S. 391 (1957), but averred that a defendant who had invoked his Fifth Amendment privilege when called before a Grand Jury should not be cross-examined on that fact because its probative value as to credibility was outweighed by the prejudice of the jury hearing that fact...even though he chose to become a witness in his own behalf. A similar due process analysis governed the case in United States v. Hale, 422 U.S. 171 (1975) where, upon the provision of Miranda warnings, the defendant remained silent and then testified at trial. The Court eloquently explained the vagaries of silence and concluded - in its supervisory authority over an evidentiary issue - that "the probative value of respondent's pretrial silence in this case was outweighed by the prejudicial impact of admitting it into evidence." Id. at 173.

In Doyle v. Ohio, 426 U.S. 610 (1976), the government argued that while silence did not necessarily implicate guilt, it was necessary to give the jury the full picture of the events. The Court disagreed, extending the decision in Hale by alluding to the Miranda warnings and declaring, "while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." Id. at 618. The Court held that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.

To keep it straight: the Fifth Amendment prohibits compelled self-incrimination. In an effort to curtail police brutaility and psychological manipulation resulting in lengthy interrogations and questionable confessions, the Court required officers to inform people in custody of this right. But, the right existed prior to Miranda and it exists for all people whether in custody or not. As Justice Marshall (who, as U.S. Solicitor General argued in opposition in Miranda) explained in Hale, silence is ambiguous. Therefore the use of silence to suggest guilt or recent fabrication is a violation due process. Unpacking that - the reason the Fifth Amendment exists is that no one can be compelled to be a witness against himself whether tacitly or vocally. Silence itself is an exercise of that right and, therefore, implying that silence means one thing or another offends the notion of ordered liberty BOTH because the individual need not speak in the face of an accusation AND because a failure to speak is hardly the equivalent of guilt thus use of silence for any purpose is not specifically a violation of the Fifth Amendment's right not to be compelled to be a witness against oneself, but rather because it offends due process of law.

The Miranda decision is utterly flawed - primarily for concocting an imaginary right to counsel under the Fifth Amendment which does not exist and for insulating the right not to be compelled to bear witness within a notion of the right of the presence of counsel without ever saying that the right to counsel under the Sixth Amendment and the independent right to counsel under the Fourteenth Amendment attaches at the time of accusation - but it is unequivocal in its sincerity and its purpose. The decision talked about ALL statements, not just inculpatory ones but also the exculpatory and neutral ones that are constantly turned on their heads when taken out of context and determined that these, too, should be excluded from the jury’s consideration when they are the product of interrogation.

The case was not about silence - it was about coerced confessions. Interestingly, Miranda himself was retried without the use of his confession, reconvicted, received the same sentence minus good time, served 11 more years and was killed by a knife wound shortly after he was released from prison at the age of 34. A suspect was arrested, provided with the Miranda warnings, invoked his right to remain silent, was released from custody, fled the state and the homicide of Ernesto Miranda in 1976 remains unsolved today.

But, part of the reasoning in both Hale and Doyle involves the idea that, having been informed of the right to stay mute (thanks to the requirement of Miranda for all those in custody and not otherwise free to leave), one accused is keenly aware of the right and therefore may heed the caution to remain silent for countless reasons. A case to be argued this week, Salinas v. Texas, asks whether someone not in custody and therefore not warned under Miranda can have his silence used against him at trial.

This stroll down memory lane should heed the obvious answer: the right predated Miranda whether people knew about it or not; silence can equally indicate guilt or innocence or a mind wandering off to remember groceries: it is not indicative of anything. While it is true that no person shall be compelled to be a witness against himself in a criminal case and silence is not bearing witness in a technical sense, the rationale for excluding silence is one of due process of law. Virtually all police questioning is a form of interrogation discussed in Miranda. The litigation post-Miranda concerns essentially whether or not the police were required to provide warnings before hearing a confession, usually with the conclusion that the confession of the guilty is, for lack of a better term, more probative than prejudicial regardless of the warnings.

Conversely, if the government were permitted to cross examine on the defendant's prior silence - whether or not he was in custody and whether or not he had been warned that he had a right to remain silent - in order to ensure that silence was not misconstrued as guilt, it would compel an explanation of that silence which would force the individual to be a witness against himself and that next step - the explanation of the silence more than the ambiguous silence itself - is what offends due process of law. The Court acted in a supervisory role over an evidentiary - not Constitutional - matter in order to prevent an unfair trial when it decided that prior silence cannot be used to infer guilt or recent fabrication.

The Framers intended an accusatory system of criminal jurisprudence where no one accused of a crime would be called to the stand by the government - if a police officer asks a suspect a question and the suspect answers, the officer can testify to that answer as an admission of a party opponent - which is why the officer has to explain that the individual in custody need not speak with him and may have the assistance of counsel prior to any interrogation. The Court concocted a difference between a suspect and an arrestee where only the arrestee must be told of his rights because, in theory, the suspect is free to leave.

If he is free to leave then he is fully at liberty to exercise all of his Constitutional rights, including not bearing witness against himself or simply walking away. If he is not free to leave and exercise all of his rights, then he is in a custodial setting and must be provided with Miranda warnings at which time his invocation of rights cannot be used against him. Either way, fabricating a reason for his silence in the face of a question - or even the comment that he does not want to speak to the police - or that he wants a lawyer present - violates due process of law. And, if only those formally arrested and "entitled" to a recitation of their rights are deemed to be permitted to invoke their rights with impunity, then the suspects who have not been so informed are similarly situated and yet subject to unequal protection of the law, also in violation of the Fourteenth Amendment.

Although well intentioned, Miranda has proven itself to be a disaster. The prior decision, Escobedo v. IL, 378 U.S. 478 (1964) which explained that an “accused” in a “criminal prosecution” is anyone who is the target of the police - when the police focus their investigation on one person and there is no longer a general investigation, but rather an intention to secure a confession through the means of interrogation, that person is the accused. And that person is entitled to counsel. No formal custody, no warnings versus failure to warn. Just a lawyer whose job it is to enforce his due process rights as the guiding hand of counsel as so elegantly phrased in Powell v. AL, 287 U.S. 45 (1932) another case decided squarely and without apology on due process of law.

Had the Court stayed on that path without the Miranda diversion, Salinas would be a simple case to decide; he would have had a lawyer with him for this conversation with the police and, in all likelihood, he would have remained utterly silent in the face of the accusations and the government would bear the burden of proof of guilt beyond a reasonable doubt with fair evidence...just like the Framers intended.