Subjects are free to waive their Miranda rights (and the majority of individuals do), although the history of how this waiver may be portrayed has altered significantly. Originally, it was on the burden of the prosecution to show that the waiver had been made. Later, it was the responsibility of the subject to affirmatively assert their rights by “clear” and “unambiguous” language or actions. Failure to do so is a presumption that waiver had occurred. The following case illustrates the difference between the federal standard and some narrower limitations state constitutions may create.

Commonwealth v. Clarke

960 N.E.2d 306 (Mass. 2012).


Whether Clarke made an unambiguous invocation of his rights.


Federal Rule: A suspect must unambiguously invoke the right to counsel or the right to silence. If the suspect invokes their rights, officers could resume questioning if (1) honored the original request, (2) resumes after a long break, and (3) the scope of the questioning is about a different crime. See Mosley

Massachusetts Rule: Has broader protections for subjects. If the waiver is ambiguous, the police must ask a clarifying question to determine the subject’s intent to waive their rights.

If the subject invokes their rights, the request must be “scrupulously honored.”


This was an unambiguous assertion of rights, affirmed.


Clarke was detained for indecent assault and battery that occurred on a sub stay station. During the interrogation, Clarke was informed of his rights and he asked what would happen if he elected not to speak. One officer answered “nothing,” and asked,” So you don’t want to speak?” To this the subject shook his head in a negative manner. Hoping to clarify some points, another officer explained that the defendant would still be charged and could still be detained. Confused, the subject agreed to talk and confessed during the discussions.

At trial, the evidence was suppressed because the subject had shook his head.


Originally, Miranda said “If the defendant indicates in any manner, at any time prior or during questioning, that he wishes to remain silent, questioning must cease.” This test changed with Thompkins (silence) and Davis (counsel). In Thompkins, the defendant had remained silent for nearly three hours before saying one incriminating word. However, this was not an unambiguous assertion of rights.

In this case and application of the federal rule, there was an unambiguous assertion of rights. “Do you want to speak?” *Shakes head.* The next question is, did they honor that request? No, they continued questioning right after about the same crime.

As the state rule is more protective of defendants, it is clearly a violation of the state constitution too.

State v. Ortega

798 N.W.2d 59 (Minn. 2011).

As the subject is charged with murder, he asks, “[A]m I supposed to have a lawyer here?” He then received clarification before signing a form waiving his rights before questioning.

The question here is whether this is an invocation of rights or a request for clarifying information. Under the federal rule, this is not an assertion (ambiguous, could have been interpreted either way). The Minnesota court requires the clarifying question approach (see Clarke) and the clarification occurs here.

Examples of ambiguous assertions:

  • Do I need an attorney?
  • Maybe I should talk to a lawyer.

State v. Reed

627 A.2d 630 (N.J. 1993).

Reed had discovered a coworker’s body. Varga, Reed’s girlfriend, called the police about the discovery. Varga called an attorney to represent Reed. However, Reed was never informed that Varga had retained a lawyer. After waiving his rights and subsequent interviews, Reed confessed to murdering the coworker.

Under the federal rule, there is no need to inform Reed that an attorney had been retained by a third party because the information does not affect the subject’s personal waiver of rights. See Moran v. Burbine, 475 U.S. 412 (1986). The story is different if the subject has a lawyer previously retained because the subject would not knowingly waive their rights. Most states (not Iowa though) have rejected the Moran approach.

In New Jersey, the court rejected Moran and said the police must inform the subject about an attorney arrival.

State v. Cleary

641 A.2d 102 (Vt. 1994).

Cleary broke into the home and then fled. Later he was pulled over and arrested. Clearly had his rights read to him and waived those rights before confessing to a crime. Later, a psychiatrist determined that Clearly had the mental age of a 10–12 year old, and would have difficulty understanding the language of the Miranda warning. However, Clearly also ran a logging business, including the ability to handle transactions for that business.

Test: Does the subject understand the warning, considering their intelligence and education. This is a subjective test for the specific defendant. Fare v. Michael C., U.S. (1979). Here, this is a valid waiver of the Miranda rights.

Also consider the following, where the statements were all admitted despite the capacity to do so. Colorado v. Connelly, 479 U.S. 157 (1986) (psychosis); Fare v. Michael C., 442 U.S. 707 (1979); People v. Jimenez, 863 P.2d 981 (Colo. 1993) (language); State v. Keith, 628 A.2d 1247 (Vt. 1993) (intoxication).


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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