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Law professors are always warning their students not to speak or write in legalese. The same advice is probably good for criminal suspects. As the 9th U.S. Circuit Court of Appeal’s recent decision in Anderson v. Terhune, 2006 U.S. App. Lexis 27558 (9th Cir. Nov. 8, 2006), makes clear, simply stating that one wants to “plead the fifth” is not necessarily enough to invoke one’s Miranda rights. Rather, suspects are expected to clarify that they do not want to be interrogated at all or that they are demanding a lawyer for their interview. In Anderson, the police arrested Jerome Alvin Anderson on a parole violation and subjected him to 3 1/2 hours of interrogation. Officers suspected him of murder and drug use. During the questioning, Anderson was confronted with the killing of his friend, Robert Clark. Trying to provoke a response, the detective told Anderson, “you killed him for a good reason.” Id. at 4. At that point, Anderson denied the killing and stated, “You know what, I don’t even wanna talk about this no more. We can talk about it later or whatever. I don’t want to talk about this no more. That’s wrong. That’s wrong.” Id. Defendants miss mark with their ‘Miranda’ assertions At that point, the detective shifted gears and asked Anderson about his drug use. Repeatedly, the officer asked what kind of pipes Anderson used. Anderson answered, “I plead the fifth.” Id. at 5. Perhaps surprised by Anderson’s response, the detective replied, “Plead the fifth. What’s that?” Id. Instead of giving the detective a legal dissertation on Miranda law, Anderson simply reiterated that the detective was wrong and that he thought the detectives were lying when they said a colleague had implicated him. Eventually, however, Anderson confessed to the murder when the officers showed Anderson a videotaped interview of his colleague confessing to watching Anderson shoot the victim. Anderson challenged his confession in state court, but lost. The state court concluded that while Anderson had a right under Miranda v. Arizona, 384 U.S. 436 (1966), to invoke his constitutional right to remain silent, defendant’s statement that he wanted to “plead the fifth” was insufficient to invoke that right. The court found that the officer could reasonably believe that defendant’s statement was simply an indication of an unwillingness to discuss the details of his drug use and not a desire to end the interrogation. Accordingly, the officer had the right to further question Anderson to determine whether he was cutting off all questioning. The court found that in the context of Anderson’s case, the phrase, “I plead the fifth,” was ambiguous and not a proper invocation of constitutional rights. While the 9th Circuit panel indicated that it might have ruled the other way if it were reviewing Anderson’s claims on direct appeal, the requirements for habeas review under 28 U.S.C. 2254 required the federal court to give great deference to the state court’s determination. On habeas review, a state court’s factual findings must be “presumed to be correct,” and the habeas petitioner “must rebut the presumption of correctness by clear and convincing evidence.” 28 U.S.C. 2254(e)(1); MillerEl v. Dretke, 534 U.S. 231, 125 S. Ct. 2317, 2325 (2005). Habeas laws also require the federal courts to give great deference to state appellate court judgments. Unless the judgment “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. 2254(d)(1), it cannot be overturned. Given this high standard, it was not completely surprising that the 9th Circuit panel was unwilling to overturn the state court’s determination. After all, the Supreme Court has never addressed the issue of whether “pleading the fifth” is always the equivalent of invoking one’s Miranda rights. If anything, the courts have steadfastly avoided finding that particular phrases are needed, or always qualify, to invoke one’s rights. Instead, the courts determine the clarity of the invocation of the right to remain silent by evaluating the facts of the individual case. Davis v. U.S., 512 U.S. 452, 458-59 (1994). The case reporters are replete with cases in which a defendant has missed the mark with his alleged assertion of his Miranda rights. For example, “I think I need a lawyer,” was found to be not an unequivocal invocation of the right to counsel in Burket v. Angelone, 208 F.3d 172, 197-98 (4th Cir. 2000). Similarly, in Commonwealth v. Auclair, 444 Mass. 348, 828 N.E.2d 471 (Mass. 2005), the state high court held that a suspect’s statement that “I’ll get a lawyer” was not a clear assertion of the right to counsel because it was made in the context of the defendant realizing that he was facing some serious charges, and it was not meant to cut off questioning. Finally, in Davis itself, the Supreme Court found that the defendant’s statement of “maybe I should talk to a lawyer” was ambiguous and did not require that questioning cease. Davis, 512 U.S. at 455. Moreover, Anderson is not the first case in which a court found that the phrase “plead the Fifth” did not necessarily invoke a defendant’s Miranda rights. In U.S. v. Barnhill, 429 F.2d 340, 342 (8th Cir. 1970), the defendant pled the Fifth Amendment to each sentence of the Miranda card. Yet, because the record showed that the defendant was probably joking at the time, his words did not invoke his Miranda rights. Certainly, there have been cases where “pleading the Fifth” is sufficient to trigger a defendant’s rights. See, e.g., U.S. v. Robinson, 932 F. Supp. 1271 (D.N.M 1996). However, the most important thing to the courts is not what words are said, but rather the other circumstances that accompany those words, especially if there are indications that the statements were coerced. For some jurists, such as Circuit Judge Margaret McKeown in Anderson, more attention should be given to the common understanding of words used by suspects in invoking their Miranda rights. In her dissent, Judge M. Margaret McKeown noted that given the public’s familiarity with Miranda and the Fifth Amendment privilege to remain silent, “[if a defendant states] ‘I plead the Fifth,’ it doesn’t take a trained linguist, a Ph.D., or a lawyer to know what he meant.” 2006 U.S. App. Lexis 27558, at 14 (9th Cir. 2006). In fact, it is “rare to see such a pristine invocation of the Fifth Amendment.” Id. at 15. Viewing the officer’s conduct as a “flagrant disregard of the right to remain silent,” McKeown would have found that there had been a constitutional violation. Id. McKeown rejected the government’s argument that Anderson’s pleading of the Fifth Amendment must be taken in context. As she stated, “[u]sing ‘context’ to make an unambiguous invocation ambiguous defies both common sense and established Supreme Court law.” Id. at 21. McKeown had no doubt that the officers knew what Anderson meant when he stated that he “plead the Fifth,” and that their efforts to clarify by further questioning of the suspect were “almost comical.” Id. at 22. No guess work was required in this case. All the officers needed to do was to stop questioning Anderson and respect his right not to be further interrogated. Indeed, there is a risk that the approach taken by the state court in Anderson will turn a layperson’s efforts to invoke his or her constitutional rights into a game of “Twenty Questions.” The endless questioning by officers to clarify a defendant’s intent is bound to wear down even those defendants who are intent on invoking their rights. Frustrated that they haven’t found the magical invocation phrase, there is a temptation to succumb to the interrogation. See Smith v. Illinois, 468 U.S. 91, 98 (1984) (follow-up questions allow “the authorities through ‘badger[ing]‘ or ‘overreaching’-explicit or subtle, deliberate or unintentional-[t]o wear down the accused and persuade him to incriminate himself.”). Defendants should steer clear of legal language Given this recent decision, a suspect would be better off staying away from legal language in invoking his rights and resort to good old-fashioned, straightforward phrases, such as “I refuse to talk to you.” It does not help a suspect to engage interrogating officers in a debate about the suspect’s legal rights or the scope of Miranda. Rather, engaging in this exchange only opens up the opportunity for law enforcement officers to question a reluctant suspect further. Modern television programs that show a suspect “taking the Fifth” after being given his Miranda rights are therefore doing both a service and disservice to their viewing audience. While Miranda has been one of the law’s greatest educational tools for informing persons of their constitutional rights, the nuances of invoking the right to remain silent may now stand in the way of suspects who actually want to invoke that right. To the extent that counsel have contact with suspects before they are arrested and advised of their Miranda rights, it may be time to give those clients well-rehearsed responses to police inquiries. Simple phrases like “I refuse to talk” or “Yes, you told me that I don’t have to speak and I choose that option” may hit the mark. Finally, the most effective manner of invoking one’s Miranda rights may be to say nothing at all. If a suspect doesn’t say anything in response to interrogation, there will be no statements to use against the suspect. Ultimately, simple silence, as opposed to fancy legal words, may be the best way to preserve the “right to remain silent.” Laurie L. Levenson is a professor of law, William M. Rains Fellow and director for the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

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