Do You Know if You Give Up Your Rights?

You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney,

Nov 8, 2006 at 2:06 pm

You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you before any questioning takes place. If you were a contestant on Jeopardy, the answer would be, "What are the Miranda warnings?"

But the next question is, if you waive your Miranda rights, which you can do, must you be asked directly and explicitly acknowledge that you understand those rights in order for that waiver to be valid? Or can a waiver of those rights be implied? That is the issue recently taken up by the Ohio Supreme Court in State v. Lather.

As part of a drug investigation, the Ottawa County Sheriff's Department searched the residence of Michael Anthony Lather Jr. and recovered several digital scales. Lather was read the Miranda warnings, but he was not specifically asked if he understood them or if he wished to waive them.

The officer went on to question Lather about the scales. Lather was subsequently charged with and convicted of trafficking in crack cocaine. On appeal, Lather argued the evidence found at his apartment and any statements he made there to the police should have been excluded from the evidence used to convict him because he had not validly waived his Miranda rights. The trial court allowed the evidence in, but the Sixth District Court of Appeals in Sandusky County reversed.

The issue before the Ohio Supreme Court was whether a suspect must be asked directly if he understands and agrees to waive the Miranda rights in order for the waiver to be valid. Justice Judith Lanzinger, writing for a unanimous court — Justice Terrence O'Donnell concurred in the judgment only — answered in the negative, holding instead, "An understanding waiver of those rights may be inferred from a totality of the circumstances."

Let's review a few fundamentals before we see how the court applied its test to Lather's case. Miranda warnings are required by the Constitution. Because of the inherently coercive nature of custodial interrogation by police, a suspect in custody must be given the Miranda warnings before being questioned.

But a suspect can waive his Miranda rights. To be valid, the waiver must be voluntary, meaning not coerced, and knowingly and intelligently made, meaning made with full awareness of the nature of the rights given up and of the consequences of the waiver.

Voluntariness was not an issue in the Lather case. The issue in Lather's case was whether the waiver was knowingly and intelligently made. The high court held that a defendant's understanding of his Miranda rights could be implied from all the circumstances. Those circumstances could include the suspect's education, previous contact with police, and any other pertinent factors.

These are the circumstances in Lather's case, from which his understanding of his Miranda rights was implied. Two weeks before the search of his apartment, Lather had been arrested on drug charges after a traffic stop. Following that arrest, Lather had signed a form at the police station stating that he understood his Miranda rights and agreed to waive them. The fact that he had a criminal record, had had a number of other contacts with law enforcement and had been read his rights so recently all weighed in favor of the validity of his waiver.

Other factors the court considered were Lather's age of 26 and his education, which included two semesters at a community college. The court also noted Lather was sober the day he was detained at his apartment and that he did not ask that day for any further explanation of his rights or protest to the police that he did not understand his rights.

Ultimately, the court upheld Lather's conviction, finding the drug-paraphernalia evidence and statements to the police were properly admitted at his trial. The court noted, however, that although Miranda does not require it, the better police practice would be "for law enforcement officers to ask specifically whether a suspect understands his or her rights."

Is it common for Miranda issues to come up in criminal trials? These issues come up all the time. For example, in the Hamilton County charges of perjury, inducing panic and making false alarms against Liz Carroll, Marcus Fiesel's foster mother, The Cincinnati Enquirer recently reported that Carroll's lawyer is seeking to suppress certain statements she made because they "were made while she was in custody, involuntarily and without a knowing and intelligent waiver of her right to remain silent."

Even though the Miranda case was decided in 1966, there are still Miranda issues for appeals courts to decide. Lather is the most recent pronouncement from the Ohio Supreme Court.

Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.