Chapter 6 - § 6.5 • STATEMENTS AND ACTIONS OF THE DEFENDANT

• Jurisdiction: Colorado

§ 6.5 • STATEMENTS AND ACTIONS OF THE DEFENDANT

§ 6.5.1—Admissibility of Statements by Defendant

Berghuis v. Thompkins, 130 S. Ct. 2250 (2010), is a lengthy U.S. Supreme Court decision with important Miranda ramifications. In Thompkins, the Court held that a defendant must unambiguously invoke his or her right to remain silent. The Court reasoned that if an ambiguous act or statement could require police to end an interrogation, police would be forced to make a difficult decision about an accused's unclear intent and face the consequence of suppression "if they guess wrong." In Thompkins, the defendant was in custody and questioned for three hours about a murder. He did not say that he wanted to remain silent or that he did not want to talk with the police. In fact, he had refused to sign a written Miranda advisement form.

The Court found that a person can impliedly waive his or her Miranda rights. It stated a general rule that the law can presume that a person who, with a full understanding of his or her rights, acts in a manner inconsistent with his or her exercise has made a deliberate choice to relinquish the protection those rights afford. Mr. Thompkins was "largely" silent during the interrogation, answering only a few questions with "yeah," "no," or "I don't know."

In determining whether a person being questioned has requested an attorney, the Colorado Supreme Court held in People v. Kutlak, 364 P.3d 199 (Colo. 2016), that the proper standard under Davis v. United States, 512 U.S. 452, 459 (1994), is whether "a reasonable police officer in the circumstances would understand the statement to be a request for an attorney."

A thorough review of Miranda and the issue of "custodial interrogation" can be found in People v. Null, 233 P.3d 670 (Colo. 2010). In Null, the Colorado Supreme Court upheld the suppression of the defendant's statements to officers at the scene of his DUI stop. The court reiterated the general rule in People v. Archuleta, 719 P.2d 1091 (Colo. 1986), that roadside detentions pursuant to routine traffic stops often do not implicate Miranda protections. However, to determine whether a suspect was in custody, the key inquiry is whether a reasonable person in the suspect's position would have felt "deprived of his freedom of action to the degree associated with a formal arrest." Null, 233 P.3d at 676 (citing People v. Taylor, 41 P.3d 681 (Colo. 2002)). Null reviews various factors to consider to determine whether a suspect was "in custody."

Generally, if not suppressed on constitutional grounds, and if relevant, a defendant's statements, when offered by the prosecution, are admissible under CRE 801(d)(2) as non-hearsay "admissions" by a party opponent. This is true regardless of whether the statements are against the defendant's interest. However, such statements are hearsay when offered by the defense. Therefore, the defendant is not entitled to elicit statements made by him or her at the scene to the police officer.

If the defendant testifies and his or her testimony is attacked on the grounds of recent fabrication, or improper influence or motive, his or her prior consistent statement may become admissible to rebut this attack. CRE 801(d)(1)(B). In Tome v. United States, 513 U.S. 150 (1995), the Supreme Court held that prior consistent statements were admissible for this purpose under FRE 801(d)(1)(B) only if the statements predated the alleged improper motive. The Colorado Court of Appeals reached the same conclusion in People v. Segura, 923 P.2d 266 (Colo. App. 1995), and People v. Johnson, 987 P.2d 855, 860 (Colo. App. 1998). Prior to Tome, a...