Supreme Judicial Court, January 13, 2012

A suspect’s nonverbal expressive conduct, such as shaking his head back and forth in a negative manner, suffices to invoke his right to remain silent both under the Fifth Amendment and Article 12.

While being held by the police for custodial interrogation, and after being advised of his Miranda rights, the defendant shook his head from side to side in response to the question, "So you don't want to speak?" The police continued questioning the defendant, who eventually made incriminating statements.  The defendant was subsequently charged with assault and battery and indecent assault and battery.  He moved to suppress his incriminating statements, arguing that he had invoked his right to remain silent by shaking his head from side to side.   A lower court judge allowed his motion to suppress, and a single justice of Supreme Judicial Court allowed the Commonwealth's application for leave to appeal that ruling (Mass. R. Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996)), and reported the case to the full court.

Fifth Amendment:

The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself...." In Miranda v. Arizona, 384 U.S. 436 (1966),

the United States Supreme Court held that the privilege against self-incrimination extends to state custodial interrogations.  During custodial interrogations, Miranda requires that the defendant "be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Miranda, supra at 479.  Unless the government can prove the voluntary, knowing, and intelligent waiver of these rights after such warnings are given, any statements made by the suspect are inadmissible.   See Commonwealth v. Simon, 456 Mass. 280, 286-287 (2010).  

While the "responsibility for invoking the protections guaranteed by Miranda and art. 12 rests squarely in the hands of criminal defendants." Commonwealth v. Collins, 440 Mass. 475, 479 n. 3 (2003), quoting Commonwealth v. Beland, 436 Mass. 273, 288 (2002), Miranda sets a “lower bar” for the invocation of those rights.  "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, supra at 473-474.  In the recent case of Berghuis v. Thompkins, 130 S. Ct. 2250, 2263 (2010), the United States Supreme Court ruled that criminal defendants must "unambiguously" announce their desire to be silent.  This is an objective test, requiring "that a reasonable police officer in the circumstances would understand the statement" to be an invocation of Miranda rights.  Davis v. United States, 512 U.S. 452, 459 (1994). 

Relying on Thompkins, the Commonwealth in this case argued that the defendant must actually speak to invoke the right to remain silent.  The Supreme Judicial Court rejected that argument, ruling that the defendant’s negative shaking of his head satisfied both federal and state constitutional standards for invoking his right to silence.  Despite his silence, the defendant’s conduct, “an explicit headshake in response to a direct question” was sufficiently communicative to invoke his right to remain silent. 

The Court also addressed whether Article 12 provides greater protection against self-incrimination than the Fifth Amendment, in light of the “unambiguous” standard articulated in Thompkins.  The Court found that Article 12 does afford greater protections than the Fifth Amendment.  “To impose a heightened standard of clarity as a prerequisite for prewaiver invocation of the right to remain silent would strike at the core of the privilege against self-incrimination.”  The Court held that “even if the defendant’s conduct was insufficient to meet the federal Thompkins standard, the defendant acted with sufficient clarity to invoke his art. 12 right to remain silent.”

Scrupulously Honored:

Once invoked, the right to remain silent must be "scrupulously honored" by law enforcement officers. Michigan v. Mosley, 423 U.S. 96, 104 (1975).  See Commonwealth v. Brant, 380 Mass. 876, 882, cert. denied, 449 U.S. 1004 (1980).  The Mosley Court looked at three factors in deciding whether the suspect’s rights were “scrupulously honored”:   the police (1) had immediately ceased questioning; (2) resumed questioning "only after the passage of a significant period of time and the provision of a fresh set of warnings"; and (3) limited the scope of the later interrogation "to a crime that had not been a subject of the earlier interrogation." Mosley, supra at 106.

The Court found that none of the three factors were present in this case:  the police did not immediately cease questioning after the defendant's “unambiguous” nodding of his head, there was no pause in the interrogation, and the police continued questioning the defendant regarding the crimes for which he had been arrested.   Thus, the Court found that the officers did not “scrupulously honor” the defendant's right to remain silent and affirmed the lower court’s ruling to suppress the defendant’s statements.