Officers should inform suspects—whether in formal custody or not—of any right to refrain from speaking with the officers or right to counsel, and ensure that any waivers of those rights are knowingly and voluntarily made. Any invocation of rights must be respected, and if there is any uncertainty as to whether rights are being invoked, officers should take the time to clarify that. Waivers of rights should be documented using appropriate agency forms, and should be recorded in accordance with § 11.02.
a. Constitutional rights. The Fifth and Sixth Amendments to the U.S. Constitution require that officers provide warnings to suspects in custody before questioning them, and the U.S. Supreme Court has held that no statement can be admitted unless the suspect has waived those rights. However, Miranda protections that apply during police questioning have been undermined in a range of Supreme Court decisions. As a result, this Section adopts the view that if constitutional safeguards are to be meaningful, care must be taken when securing waivers of rights.
b. Best practices. When in doubt about whether constitutional law requires obtaining a waiver or not, it is the better practice to err on the side of providing warnings, and clearly documenting any waivers of rights by an individual, before an interview or interrogation commences. Officers must ensure that any waiver of rights is voluntary, well-informed, and understood. Officers must make the meaning of the rights clear to suspects. In doing so, additional warnings may be necessary. Officers must take special care when questioning individuals who are members of vulnerable populations. See § 11.05 (Questioning of Vulnerable Individuals). After providing a standard statement of available rights, officers must ask questions to secure an affirmative waiver of rights. If a suspect invokes his or her rights, officers must respect that invocation promptly. Any ambiguity concerning an invocation should be promptly clarified to ensure that the rights of a person are carefully respected.
c. Right to counsel. Under the Fifth and Sixth Amendments of the U.S. Constitution, a person has the right to request an attorney during an interrogation. Agencies must take measures to ascertain if an individual already is represented by counsel, and if so to cease questioning in order to ensure that counsel is notified or present. If questioning a person who has, or has requested, counsel, officers must document and—when possible—obtain written verification that the person initiated the communication despite being aware of the right to have counsel present.
d. Documentation. Officers should record the process of informing persons of their rights, the persons’ responses, and any subsequent questioning, as described in § 11.02.
This Section emphasizes that agencies must ensure that suspects only waive their rights after a meaningful opportunity to consider whether or not to do so. The focus here is not on revisiting constitutional-law requirements, but rather on making them meaningful by ensuring that all suspects, including those of varying ages, learning ability, mental health, and language skills, can understand what is transpiring, and exercise free will as to whether they wish to be questioned.
The U.S. Supreme Court ruled in several cases regarding how a waiver should be obtained and the need to ensure that a waiver is informed. For example, while the Court has said that “[t]he main purpose of Miranda is to ensure that an accused is advised of and understands the right to remain silent and the right to counsel,” the Court has held that a waiver of rights may be “implied” from silence, even after several hours of a suspect remaining silent in the face of police questioning. Berguis v. Thompkins, 560 U.S. 370, 383 (2010). In addition, the Court has permitted “a good-faith Miranda mistake” to excuse an officer’s failure to provide the warnings, in a departure from its rules that typically impose an objective standard of care. Missouri v. Seibert, 542 U.S. 600, 611 (2004) (plurality opinion). Such standards and distinctions are complex and have been criticized as not faithful to the Miranda ruling itself. Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 Geo. L. J. 1 (2010). In any event, these rulings are not intended to define a comprehensive set of best practices for law enforcement. That makes it all the more important that agencies ensure that officers take care to inform suspects of their rights to not answer questions and to counsel.
It is important to ensure that if someone is a suspect, that person is advised of his or her rights in a clear and careful fashion, the process is documented, and assertions of rights are respected. Agencies should err on the side of advising persons of the right to remain silent and of the right to counsel. Agencies also should err on the side of notifying counsel. Further, agencies should restrict the use of tactics in which waivers are not obtained promptly and before questioning proceeds. The concern shared by many observers is that interrogators deemphasize warnings, making them seem like an irrelevant afterthought, in order to see that such warnings are disregarded by the subject. Richard A. Leo & Welsh White, Adapting to Miranda: Modern Interrogators’ Strategies for Dealing with the Obstacles Posed by Miranda, 84 Minn. L. Rev. 397-472 (1999).