Criminal Procedure,  Fifth Amendment - Self-Incrimination

A Simple “Yes” or “No” Will Do, Thank You

As soon as I glanced at United States v. Rodriguez, case no. 07-10217 (9th Cir. Mar. 10, 2008) today and realized I would have to defer drafting a blog post until later, I had a pretty good idea I was going to be preempted, and I was pretty sure by whom. Sure enough, California Appellate Report and Decision of the Day both have excellent posts on the case, so I’ll just briefly explain the case and then use my fellow bloggers’ posts as starting points for my discussion.

The issue is this: if a person in custody gives an ambiguous response when asked if he waives his Miranda rights, is the officer required to get clarification or is he free to begin questioning? The trial court held the latter, relying on Davis v. United States (1994) 512 U.S. 452. In Davis, the defendant had waived his Miranda rights, then later ambiguously invoked his right to counsel, and the Supreme Court held that this did not require the officer to cease questioning to get clarification of the defendant’s intent.

The Ninth reverses the conviction in Rodriguez, holding that in Davis, the ambiguity concerned the invocation of the rights to silence and counsel after an unambiguous waiver of the same. Since Rodriguez never unambiguously waived his rights, but instead gave an ambiguous response the first time he was asked if he waived his rights, the Ninth holds that the officer was required to get clarification.

As California Appellate Report points out, the court subtly but purposefully noted that Davis was a 5-4 decision, implying it has weaker precedential value because of that. It’s a shame the court did so. I think the court’s analysis of Davis stands on its own; there was simply no need to imply that the decision was weak precedent.

Decision of the Day‘s post discusses the case with reference to the recent habeas decision in the Ninth that reached the unstartling conclusion (though it took en banc review to do so!) that “I plead the Fifth” is an unambiguous invocation of the right against self-incrimination. DoD wonders out loud if the court is “overcorrecting” for the erroneous panel decision in that case, but I think not. Again, the analysis seems spot-on to me; the court doesn’t seem to be stretching at all. Even though, as DoD notes, two other circuits have found that Davis applies to the initial waiver of Miranda rights, the Ninth points out that neither court even noted the post-waiver factual scenario in Davis.

Will this circuit split end up in SCOTUS?

(UPDATE 3/12/08):   Appellate Review weighs in, taking pains to point out that “this decision is not a product of the ‘Ninth Circus.’”