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Responsibility for invoking the protections guaranteed by Miranda and Mass. Const. Decl. Rights art. XII rests squarely in the hands of criminal defendants. Miranda set a low bar for invocation of the right to remain silent: 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. However, under the federal Constitution, in order for criminal defendants to invoke their right to remain silent, whether before or after waiving their Miranda rights, they must unambiguously announce their desire to be silent. This test is an objective one, requiring that a reasonable police officer in the circumstances would understand the statement to be an invocation of the Miranda right. On sufficiently clear invocation, the right to remain silent must be scrupulously honored. The right to remain silent described in Miranda includes not only the right to remain silent from the beginning of questioning but also a continuing right to cut off, at any time, any questioning that does take place. Absent such scrupulous protection of the right to remain silent, statements made after invocation of the right are inadmissible in the prosecution's case-in-chief.
After a detective orally reviewed the Miranda rights with Brandon Clarke, who was in custody, the detective asked him whether he wanted to discuss the charges. Clarke said, "I just want to go home." The detective asked, "So you don't want to speak?" Clarke shook his head from side to side in a negative fashion. Another detective advised him that if he did not speak, he would not be free to go. After additional conversation with the detectives, Clarke signed a Miranda waiver and made incriminating statements.
Did Clarke, by his conduct, invoke the right to remain silent guaranteed under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights?
The high court held that the record supported the trial court's finding that Clarke clearly invoked his right to remain silent as a matter of federal law. As the detectives did not scrupulously honor Clarke’s right to remain silent, his incriminating statements were properly suppressed. Even if Clarke’s pre-waiver invocation of his right to remain silent was not made with the "utmost clarity," as required by the federal Berghuis v. Thompkins standard, he acted with sufficient clarity to invoke his right to remain silent under Mass. Const. Decl. Rights art. XII, which provided greater rights to criminal suspects than the Fifth Amendment, U.S. Const. amend. V.