Interpreting the Unambiguous Invocation
Robert C. Phillips
DDA; retired
December, 2016
It has long been one of Miranda v. Arizona’s[1] principle tenants that once an in-custody suspect invokes his right to silence (e.g., “I don’t want to talk.”), law enforcement officers are to “scrupulously honor” his wishes and immediately terminate an interrogation.[2] From this basic concept has developed the rule that such a suspect cannot beat around the bush when invoking. It is his obligation in attempting to invoke to make his desires clear and unequivocal.[3] Although this rule applied at one time only to attempts to invoke one’s right to the assistance of counsel, it is now recognized that the same rule applies as well when invoking one’s right to remain silent.[4]
Deciphering the meaning of a suspect’s attempt to invoke, as to what he really intended to say, has become the problem. In seeking to resolve this issue under the unique facts of any particular case, we are told that “(a) suspect need only invoke his rights ‘sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be [such] a request.’”[5] While the courts have told us that an invocation of a suspect’s right to remain silent, for instance, need not be express; that it may be implied under the circumstances, and that any words or conduct reasonably inconsistent with a present willingness to discuss the case freely and completely is enough,[6] applying the rule to everyday situations is not nearly so simple.
The courts have also told us that in attempting to figure out whether a suspect is indeed attempting to invoke his rights, we are to look at “the circumstances surrounding the alleged request to discontinue questioning.”[7] But is this a correct statement of the law, or are the circumstances we can look at limited?
A recent example, illustrating even the courts’ inability to agree upon what is, and what is not, a clear and unequivocal invocation, and exactly what circumstances we are allowed to take into consideration, is described in the Ninth Circuit Court of Appeal’s recent decision of Jones v. Harrington.[8] Convicted of first degree murder and related charges, a trial judge, the California Court of Appeal (supported by the California Supreme Court’s denial of review), and a federal district court, all concluded that under the circumstances, a defendant’s statement during interrogation; “I don’t want to talk no more, man.”, was not an invocation, but rather an expression of the defendant’s frustration that his interrogators were not listening to him. The Ninth Circuit, however, as described in Jones v. Harrington, in a split 2-to-1 decision with a strong dissent, disagreed.
The circumstances that led up to this issue were simple enough. In August of 2003, three teenage members of the Eight Treys Gangster Crips, doing no more than filling up at a gas station, found themselves on the border of territory ruled over by the rival gang Westside Rolling 90s Crips. Spotted by Rolling 90s Crips gangster Kevin Jones and others while driving by in Jones’ black Ford Escort, an occupant of Jones’ car shot at the Eight Treys’ vehicle, wounding two and killing one of the victims. An uninvolved driver of another car was also wounded.[9]
During the ensuing police investigation an informant told investigators that it was Jones’ Ford Escort that was involved, and that Jones was a member of the Rolling 90s. Jones was brought in by the police shortly thereafter and interrogated. After waiving his Miranda rights, Jones admitted that he owned a black Ford Escort and that no one else drove it but him. But he also claimed not to know anything about the shooting.[10]
Using a ruse, attempting to convince Jones that continued denials would be fruitless, the detectives falsely told him that witnesses had identified his car as the one used in the shooting and that the car appeared on surveillance video from the gas station. Changing his story several times, Jones eventually settled on the incredulous story that he had driven straight home from work the day of the shooting, but that later that evening he discovered that someone had taken his car from his driveway. He just assumed that whoever took it would return it later. And sure enough, his car soon magically reappeared.[11]
Questioning the plausibility of such an unlikely happening, the detectives accused Jones of driving his car the night of the shooting. Backed against the wall, perhaps recognizing the ridiculousness of his story, Jones finally responded: “I don’t want to talk no more, man.” One of the detectives then said: “I understand that, but the bottom line is . . . .” Defendant interrupted: “You don’t want to hear what I’m telling you.” With a detective telling Jones to “speak up,” that he was having a hard time hearing him, Jones responded: “I’m telling you all.”[12]
From there, the questioning continued on as normal until Jones finally weakened and made incriminating statements, admitting that he had been the driver at the time of the shooting (although he claimed that some “stranger” had jumped into his car, shot at the victims, and then mysteriously disappeared).[13]
At trial, Jones’ admissions were used against him in evidence over his objection. The issue on appeal was whether these statements were improperly introduced into evidence, or whether the questioning should have ceased once he said that he did not want to “talk no more.” The California Court of Appeal affirmed his conviction, holding that Jones’ comment about not wanting to talk was equivocal when considered in context, including his statements that followed. The California Supreme Court summarily denied review. Jones filed a petition for writ of habeas corpus in federal court, which was denied. This was followed by a timely appeal to the Ninth Circuit Court of Appeal.
The Ninth Circuit Court of Appeal, in a split 2-to-1 decision, reversed. Considering the issue “de novo” under federal appellate rules,[14] a federal appellate court can overturn a state court decision only if that decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or, in the alternative, the state court’s holding “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”[15]
The majority of the three-judge Ninth Circuit panel ruled in Jones v. Harrington that California’s decision on the issue—i.e., whether Jones had effectively invoked his right to remain silent—met at least the first test—i.e., that the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States—and that the conviction must be reversed.
Specifically, as noted above, United States Supreme Court authority, beginning with Miranda v. Arizona itself, has consistently held that an in-custody suspect invokes his right to remain silent when he indicates in any manner or at any point in an interrogation that he does not want to talk. Such an invocation must be “scrupulously honored” by the officers, with the interrogation being terminated immediately.
While it is true that such an invocation (according to more recent authority) must be clear and unequivocal to be legally effective, the Court ruled here that defendant’s comment; “I don’t want to talk no more, man,” could not have been any clearer. His interrogation should have stopped at that point.
California state courts, according to the Ninth Circuit—specifically citing the U.S. Supreme Court decision of Smith v. Illinois[16]—inappropriately ruled that Jones’ subsequent statements, after he said he did not want to talk any more, may at the very least be used to show that his attempt to invoke was in fact equivocal. In other words, his attempt to invoke “was made ambiguous by statements he made later in the interrogation.” This, per the Ninth Circuit, is clearly contrary to U.S. Supreme Court’s authority on this issue. “By continuing to interrogate Jones after he had invoked his right to remain silent, officers violated Miranda—which means the government cannot use against Jones anything he said after his invocation. This includes using Jones’s subsequent statements to police to ‘cast retrospective doubt on the clarity of the initial request itself.’”[17]
The dissenting opinion in Jones v. Harrington, however, throws Smith v. Illinois back into the majority’s face by noting that in Smith, between the defendant asking for a lawyer (i.e., after being advised of his right to the assistance of counsel, Smith unequivocally stated; “Uh, yeah. I'd like to do that.”), the officers continued on with the Miranda advisal and then sought a waiver.[18] In Jones, however, the Kevin Jones immediately equivocated when he said; “You don’t want to hear what I’m telling you,” and then, “I’m telling you all.” There was no attempt to talk Jones out of what could have been interpreted as an invocation. Also, there was no attempt to continue the on-going interrogation until after Jones had volunteered other comments indicating that he was in fact not attempting to invoke his rights. This, the California courts interpreted when all considered together, as an indication that Jones was merely frustrated with the detectives refusing to listen to him and not a legally effective attempt to invoke his right to silence.[19]
The argument between the majority and dissenting opinions in Jones was really whether the rule as discussed by the majority is clearly established by federal law, as determined by the Supreme Court of the United States. The majority is telling us, in effect, that as established in Smith v. Illinois, comments by an in-custody suspect made subsequent to a clear and unequivocal invocation may not be used to cast doubt upon what the suspect really meant. The dissenting opinion argues, in contrast, that the circumstances in Jones can be differentiated from Smith v. Illinois, and that the unique facts in Jones have not yet been interpreted by the U.S. Supreme Court. In other words, not being clearly settled, a federal court is without authority to reverse the state court’s determination on the issue. The majority opinion, however, rules the day.
The California Attorney General has indicated an unwillingness to seek U.S. Supreme Court review of this issue. The rule of the Jones majority, therefore, is now the law.
[1] (1966) 384 U.S. 436
[2] Michigan v. Mosley (1975) 423 U.S. 96, 103-104
[3] Davis v. United States (1994) 512 U.S. 452
[4] Berghuis v. Thompkins (2010) 560 U.S. 370, 381-389
Jones v. Harrington (9th Cir. 2016) 829 F.3rd 1128, 1137
[5] Id., at p.1138; quoting Davis v. United States (1994) 512 U.S. 452, 459
[6] People v. Crittenden (1994) 9 Cal.4th 83, 129
[7] In re Joe R. (1980) 27 Cal.3rd 496, 515-516
[8] Jones v. Harrington, supra.
[9] Id., at pp. 1132-1133
[10] Id., at p. 1133
[11] Ibid.
[12] Id., at p. 1134
[13] Ibid.
[14] The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
[15] 28 U.S.C. § 2254(d)(1)-(2)
[16] (1984) 469 U.S. 91
[17] Jones v. Harrington, supra, at p. 1136
See also Mays v. Clark (9th Cir. 2015) 807 F.3rd 968, 977
[18] Smith v. Illinois, supra, at p. 93.
[19] Jones v. Harrington, supra, at pp. 1146-1151
