Bowman robbed Victor Hugo Lopez Munoz (Hereinafter referred to as “Munoz”). Bowman got away until Munoz recognized Bowman at the trolley-stop for his adult school; after he called 911 on his cell phone, both he and Munoz, coincidentally, walked into the same school together. Apparently, Bowman would raise his hand too often, and that got on Munoz’ nerves (that probably isn’t true).
A police detective advised Bowman of his Miranda rights. Remember Miranda? Not the ex-girlfriend. In the landmark case, Miranda v. Arizona (1966) 384 U.S. 436, the US Supreme Court held that any statements made in the course of an interrogation while in physical custody may only be admissible if a defendant is first advised of his or her right to remain silent, the right to consult with an attorney before and during questioning, and the right to not incriminate him or herself.
But Justice Warren said the advisement better than I can, which is now part of pop culture and close to what we hear in nearly every cop drama on television…“Prior to any questioning, the person MUST be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id. at 444.
Also, an individual may give up these rights provided their waiver is “made voluntarily, knowingly and intelligently.” Id.
However, even after a defendant waives his or her Miranda rights, if they “indicat[e] in any manner and at any stage of the process that he [or she] wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” Id. at 444-445.
Regrettably, the vast majority of arrestees waive their right to remain silent, and decide not to speak with an attorney in favor of making incriminating statements to the cops. The police, the sheriffs, the Feds, they’re not there to help you, despite their promises of leniency, cigarettes and food from the best burger joint in town – they’re goal is to build a case against you, a case that a prosecutor can easily obtain a conviction from. If you’re afraid of probation, a rehabilitation center, jail or prison, and you’re being interrogated (that is, you do not feel free to leave and walk away), then tell the law enforcement officer(s) you (1) want to speak with an attorney, and (2) that you will be silent and say nothing.
In our case, Bowman was advised of his Miranda rights. And when he answered the kindly detective’s questions (Meaning, he WAIVED his Miranda rights. Huge mistake, BTW), he chose to answer only some of the questions, but not all.
Here’s a cut and pasted version of the Bowman trial transcript:
As part of the prosecutor’s examination of the detective who arrested and interviewed Bowman, the prosecutor asked about three instances in which Bowman did not answer the detective’s interview questions. First, the prosecutor queried:
“[Prosecutor]: Did you tell [Bowman] it was suspicious he told you he had never been to [the area where the robbery occurred]?
“[Detective]: Yes, that was one of the questions I confronted him with because I thought it was suspicious he told me he had never been there and I find a document and now he is telling me he lived there also.
“[Prosecutor]: What was his response to your comment?
“[Detective]: Actually, there was really no comment. He couldn’t give me an explanation.
“[Prosecutor]: Well, … I want to get an impression from you of his response. Was his response silence or was his response, ‘I have no comment,’ or ‘I have no explanation?’ There is a difference.
“[Detective]: Actually, he just looked at me and he said nothing. Just looked at me. Didn’t respond to my question.”
A short while later, the prosecutor queried:
“[Prosecutor]: Did you ask or confront [Bowman] with the fact that the victim had also identified his cell phone?
“[Detective]: Yes.
“[Prosecutor]: What was [Bowman's] response?
“[Detective]: Again, … I said, ‘Why would the victim identify your cell phone [as the] cell phone he saw during the robbery?’ And again he just looked at me and didn’t say anything.
“[Prosecutor]: And did you ask him ‘Why would the victim identify you?’
“[Detective]: Yes.
“[Prosecutor]: What was his response?
“[Detective]: No response.”
Clearly, things didn’t go well for Bowman in court. The above exchange was heard by a jury and aided in his conviction.
Accordingly, Bowman’s case is considered to be an exception to the ruled carved out in the US Supreme Court decision, Doyle v. Ohio (1976) 426 U.S. 610. There, two defendants were advised of their Miranda rights, remained silent in the face of police interrogation, and the prosecutor asked at their jury trial why, if they were innocent, they did not state that to the police after they were arrested. Id. at 612-614. The High Court logically stated that the prosecutor’s impeachment – shown above (and read the case if you have nothing better to do) – is a violation of due process because the Miranda advisement they received conveyed a right to remain silent, which implies there is no penalty for exercising that right. Id. at 618. In other words, post arrest/Miranda silence CANNOT be used against a defendant. We know this now as the Doyle Rule.
That being said, the Doyle Rule has been held to be inapplicable to pre-arrest silence. Brecht v. Abrahamson (1993) 507 U.S. 619, 628. That mean, if you aren’t under arrest, and you equivocate, are silent, or say something that just doesn’t make any sense at all in the attempt to clear your name (Your name is Mudd), whatever you say or didn’t say will be used against you in a court of law.
Unfortunately, sometimes when you believe you are under arrest (that is, you have that overwhelming feeling you are not free to terminate your encounter with the friendly peace officer), you really aren’t under arrest even though the rest of the world would feel as you do. This gets confusing at the beginning stages of DUI traffic stops, where the officer asks how much you’ve had to drink, whether you can feel the effects of alcohol, where you’re coming from and going to, etc. These are generally considered brief investigative detentions, and not arrests, at least prior to your being gently escorted from your vehicle. Accordingly, the officer, wearing his Sam Brown belt, and standing outside your driver’s side window with his flashlight in your face is not considered to have “arrested” you even though you know you can’t just put your foot to the gas pedal and drive away without some kind of consequence (getting chased or shot at). That means, your silence/equivocations at the getting-to-know one another phase of your traffic stop can be used against you at your up-and-coming DUI court or jury trial, or in any other case in which you are deemed only having been briefly detained, and not arrested. Of course, any direct admissions you make to alcohol, drug use or any other criminal conduct will likewise be used against you.
Separating investigative detentions from arrests can defy common sense at times, and there’s too much to say about it for purposes of this blog. That said, the Doyle Rule also does not prohibit “post-arrest silence if the defendant [has not yet] receive[d] Miranda warnings. Abrahamson at 628. That is because you have not had the chance to rely on your right to remain silent, because the officer hasn’t told you that you have this right. Id. So please everyone, no spontaneous utterances, exclamations or deep thoughts after you are arrested and before they read you your rights. Just don’t say anything at all. Although easy to remember, almost no one seems to be bothered by this.
In our case, the appellate court has carved out yet another exception to the Doyle Rule. The trial court admitted Bowman’s failure to respond to the detective’s query on the theory that they are ADOPTIVE ADMISSIONS. Here’s the rule: whenever a person is being accused of a crime (they are under arrest), and they are given an opportunity to explain themselves and they do not and/or are evasive, hesitant or equivocating in their explanation/response, and the 5th Amendment (the right not to incriminate ourselves) is not being relied on, that is, they have waived their right to speak to an attorney and/or remain silent (Bowman blew it), whatever they say or don’t say or equivocate about is treated as an admission of guilt against them. People v. Jenings (2010) 50 Cal. 5th 616, 661.
In plain English: Don’t waive your rights, speak, and then be silent (in this order), and expect your silence not to be used against you. Your silence now counts nearly as much (practically speaking) as verbally admitting to the crime itself. The judge will hear of it, and so will a jury – like what happened with Bowman.
This seems a bit unfair, especially considering the fact that the officer has just advised you of your right to remain silent, and you may – for the sake of argument – be relying on that absolute right despite your earlier waiver. This case may be taken up by the California Supreme Court.
We should pity Bowman. Actually, it would seem that there was ample evidence against him to convict without the adoptive admissions, but they sure didn’t help.
[Please note that Miranda has taken a dramatic turn for the worse. Just read Berguhis v. Thomkins (2010) 130 S. CT. 2250 for proof of that fact. Silence alone does not mean that you are exercising your right to remain silent. You must make your desire to remain silent unambiguously known. Mr. Thomkins decision to say nothing for 2 hours and 45 minutes was deemed not unambiguous.]
