§ 24.10 Waiver of Miranda Rights

• Jurisdiction: North Carolina

§ 24.10 Waiver of Miranda Rights

[A] In General

[1] Overview

Most suspects in custody waive their constitutional rights after receiving Miranda warnings.¹⁵⁰ And, as the Supreme Court has acknowledged, "giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility":¹⁵¹ that is, if Miranda warnings are given and the suspect validly waives his Miranda rights, a defendant's claim that his incriminating statements were obtained involuntarily in violation of the Due Process Clause or the Self-Incrimination Clause will almost never be successful.¹⁵² Therefore, Miranda waiver jurisprudence is of great practical significance. And, as discussion in this chapter section should demonstrate, the post-Miranda Court has made it easier for a prosecutor to prove the existence of a valid Miranda waiver than, perhaps, the Miranda Court itself had in mind.

The general principles relating to waiver are considered in this subsection. Special issues arise if, before or during interrogation, a custodial suspect asserts his Fifth Amendment privilege against self-incrimination, or if he requests assistance of counsel. The law in this regard in considered in subsection [B].

[2] Types of Waiver: Express versus Implied

The Miranda opinion stated that a prosecutor must overcome a "heavy burden" to demonstrate a valid waiver of a custodial suspect's Miranda rights. Because of this "heavy burden," "a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact actually obtained." An express waiver, followed "closely" by a statement, "could" constitute a valid waiver. The implication from this seemed to be that the Miranda Court intended for waivers to be express, rather than implied.

Nonetheless, the Court held in North Carolina v. Butler that "an explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent or the right to counsel guaranteed by the Miranda case."¹⁵³According to Butler, although the burden of proof is on the government to prove that the suspect validly waived his Miranda rights, "in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated" after Miranda warnings are given.

For example, in Butler, B was read his Miranda warnings. He acknowledged that he understood his rights, but he refused to sign a written waiver form. B verbally waived his right to silence ("I will talk to you but I am not signing any form"), but he did not say anything regarding his right to counsel. The Court held that no per se "express waiver" requirement should apply. Instead, the issue of whether a person has waived his right should be determined on "the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."¹⁵⁴

Indeed, in Berghuis v. Thompkins,¹⁵⁵ discussed in detail in subsection [5] below, the Court expanded on the circumstances in which an implied waiver can be found, and did so to a degree one would never have anticipated from Miranda's language about "heavy burdens" and waivers not being presumed. The Court virtually turned waiver law on its head: it now says that "[w]here the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent."¹⁵⁶

[3] Elements of a Valid Waiver

[a] Generally

Miranda provides that a "defendant may waive effectuation of [his] rights, provided that the waiver is made voluntarily, knowingly and intelligently." By this statement, the Court effectively adopted the waiver standard first announced in Johnson v. Zerbst,¹⁵⁷ which declared that a constitutional right may not be waived unless there is "an intentional relinquishment or abandonment of a known right or privilege."

In Miranda, the Court stated that a suspect's waiver is not valid unless the prosecutor overcomes an unspecified "heavy burden" of proof that the waiver was voluntary, knowing, and intelligent. In Colorado v. Connelly,¹⁵⁸ the Court held that this "heavy burden" is met if the prosecutor proves, from the totality of the circumstances, the validity of the waiver by a preponderance of the evidence.

[b] Voluntariness of the Waiver

A waiver must be voluntary, i.e., "the product of a free and deliberate choice rather than intimidation, coercion, or deception."¹⁵⁹ In determining voluntariness, the Court has stated that "[t]here is obviously no reason to require more in the way of a 'voluntariness' inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context."¹⁶⁰

As with rights located in the Due Process Clause, a waiver of Miranda rights is not involuntary if the "moral and psychological pressures to confess emanat[e] from sources other than official coercion."¹⁶¹ For example, a suspect's waiver of his Miranda rights is valid if he was "coerced" to do so by his belief that God commanded him either to confess or commit suicide.¹⁶² Furthermore, the Court has held that the internal psychological pressures that arise from having a "guilty secret" do not invalidate a subsequent decision to confess.¹⁶³ In summary, due process "voluntariness" jurisprudence¹⁶⁴ applies to the voluntariness prong of Miranda waiver law, and may be incorporated by reference here.

This result presents an historical irony. Miranda was intended as a bright-line alternative to the much-criticized, totality-of-the-circumstances "voluntariness" standard that preceded it. Yet, through the vehicle of Miranda waiver law, "voluntariness" jurisprudence has returned.

[c] Knowing and Intelligent Waiver¹⁶⁵

To be valid, a "waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it."¹⁶⁶

The Court has not always enforced this rule strictly. Consider Oregon v. Elstad:¹⁶⁷E confessed to a crime during brief police questioning in E's home. Due to an oversight, Miranda warnings had not been given, so E's statements in his home were inadmissible at trial. Later, at the police station, the police read E the Miranda warnings, after which E waived his rights and provided more incriminating statements. E argued that his post-Miranda statements should be excluded, in part¹⁶⁸ on the ground that he wrongly believed that "the cat was out of the bag." That is, E did not realize when he made the second statement that his earlier incriminating statements were inadmissible; therefore, he wrongly believed that he had nothing to lose in confessing a second time, and thus (according to E) his waiver was not knowingly and intelligently made.

The Court disagreed. It stated that "a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." But what about E's claim that he didn't know that the cat was not out of the bag? Shouldn't the police have supplemented the Miranda warnings with a statement that his earlier admissions were inadmissible? No, according to the Elstad Court: A requirement of an additional, clarificatory warning in such circumstances was "neither practicable nor constitutionally necessary." The Court explained that it "has never embraced the theory that a defendant's ignorance of the full consequences of his decisions vitiates their voluntariness."¹⁶⁹ It is not the case that "the sine qua non for a knowing and voluntary waiver of the right to remain silent is a full and complete appreciation of all of the consequences flowing from the nature and quality of the evidence in the case."¹⁷⁰

[4] Moran v. Burbine: Waiver in the Post-Miranda Era (Part 1)

Moran v. Burbine¹⁷¹ is a case that deserves special attention. It is important not only for what it says about Miranda waiver law, but also for what it demonstrates about the distance the Court has traveled since the days of Escobedo v. Illinois¹⁷² and Miranda.

In Burbine, B was arrested for a murder. As a result of B's sister's efforts, an attorney called the police station in the evening and informed a detective that she would act as B's counsel in the event that the police intended to interrogate him. The officer assured the lawyer that B would not be interrogated that night, In fact, however, less than an hour later, the police conducted the first of a series of interviews with B regarding the homicide. Prior to each session, B was informed of his Miranda rights, and he signed written forms waiving his right to counsel. At no time, however, was B informed that his sister had retained counsel for him, nor was he aware of his counsel's telephone conversation with the police.

In an opinion written by Justice Sandra Day O'Connor, the Court held, 6-3, that the police followed acceptable Miranda procedures, and that the record supported the state court finding that B's waiver of his Miranda rights, his right to counsel in particular, was voluntary, knowing, and intelligent.

The Court granted that the police conduct was "objectionable as a matter of ethics." It "share[d][B's] distaste for the deliberate misleading of an officer of the court." However, "even deliberate deception of an attorney could not possibly affect a suspect's decision to waive his Miranda rights." That is, unlike Escobedo, in which the police falsely told the suspect that his attorney did not want to see him, the deception here was directed at the attorney. Therefore, the police misconduct, unknown to B, could not have affected the voluntariness of his waiver.

The Court concluded, as well, that the undisclosed information did not deprive B of the "knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them." Once the prosecutor shows that a suspect was fully informed of his Mi...