Commonwealth v. Simon

¶1(dissenting, with whom Marshall, C.J., and Spina, *302J., join). As the court recognizes, since the United States Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda), persons in Massachusetts subject to custodial interrogation by the police have been entitled to receive, at the threshold of the interrogation, a recitation of what have become known as the Miranda warnings: that they have right to remain silent, that anything they say can be used against them, that they have a right to the presence of an attorney, and that, if they cannot afford an attorney, one will be appointed. Ante at 285-286. Mirandawas, of course, based wholly on the Fifth Amendment to the United States Constitution, but this court has recognized that the administration of the Miranda warnings also protects the independent right against self-incrimination to which Massachusetts citizens are entitled under art. 12 of the Massachusetts Declaration of Rights. See Commonwealth v. Snyder, 413 Mass. 521, 531 (1992). See also Commonwealth v. Martin, 444 Mass. 213, 221 (2005).

¶2Despite the long history in the Commonwealth of insisting on the administration of Miranda warnings, the court today holds that even where no such warnings are given, the right against self-incrimination guaranteed by the Fifth Amendment, and separately by art. 12, is adequately safeguarded during custodial police interrogation by “the presence of an attorney during questioning, when combined with the opportunity to consult with the attorney beforehand.” Ante at 289. While it is true that a number of other courts have taken the same view of what the Fifth Amendment requires, see ante at 289, the United States Supreme Court has never considered the issue directly, and the Mirandadecision itself sent conflicting signals on it.1 But I do not dwell on the Fifth Amendment, because I conclude that the *303role announced by the court does not satisfy the more stringent requirements of art. 12. Accordingly, I dissent.2

¶3We have recognized that “[t]he text of art. 12, as it relates to self-incrimination, is broader than the Fifth Amendment.”3Commonwealth v. Mavredakis, 430 Mass. 848, 858 (2000). See Attorney Gen. v. Colleton, 387 Mass. 790, 796, 800-801 (1982). As several post-Miranda decisions of the United States Supreme Court have reflected “shrinking protections afforded to the Federal right against self-incrimination,” Commonwealth v. Martin, 444 Mass. at 221, this court has focused more closely than it had in the past on the independent requirements of art. 12. In doing so, we have “provided additional protections under the common law, protections that go beyond what the Supreme Court would require in similar circumstances as a matter of [Federal] constitutional imperative.” Commonwealth v. Snyder, 413 Mass. at 531. See, e.g., Commonwealth v. Martin, supra at 215, 223 (declining to follow United States v. Patane, 542 U.S. 630 [2004], and adopting common-law rule to safeguard “parallel but broader protections afforded ... by art. 12”); Commonwealth v. Mavredakis, supra at 859-860 (declining to follow Moran v. Burbine, 475 U.S. 412 [1986], under art. 12); Commonwealth v. Smith, 412 Mass. 823, 835-836 (1992) (declining to follow Oregon v. Elstad, 470 U.S. 298 [1985], as matter of State common law); Opinion of the Justices, 412 Mass. 1201, 1209-1211 (1992) (declining to follow South Dakota v. Neville, 459 U.S. 553 [1983], under art. 12). Cf. Commonwealth v. A Juvenile, 389 Mass. 128, 131 (1983).4

¶4*304The court acknowledges that art. 12 has a broader scope than the Fifth Amendment with respect to the right against self-incrimination, and discusses the cases just cited as illustrating this principle. Ante at 291-292. But the court then concludes that we need not consider art. 12’s wider protections, because (1) “the factors that led us in past cases to conclude that Federal law was insufficient to protect art. 12 rights are not present” {ante at 292); and (2) while we have sometimes rejected Federal precedent in favor of “bright-line rules in the Miranda context,” {ante at 294), the rule the court adopts — the presence of counsel during a custodial interrogation and a prior opportunity to consult — is a bright-line one. Neither reason is correct.

¶5With respect to the court’s first reason, contrary to the court’s view, our decisions make clear that art. 12 has substantive content independent of the Fifth Amendment, and that we depart from Federal law to give meaning to that content — not just, as the court would have it, because there is a “need to deter police from ignoring the requirements of Mirandawhere doing so would provide police with a greater chance of obtaining incriminating evidence.” Ante at 292. We explored that substantive content, for example, in Opinion of the Justices, 412 Mass. at 1209-1211, and concluded that a statute permitting evidence of a refusal to take a breathalyzer test would violate art. 12 as compelled testimonial evidence, even though it could be admitted under the Fifth Amendment. Nothing in that case turned on the need to deter police interference with Miranda requirements. *305Similarly, in Attorney Gen. v. Colleton, 387 Mass. at 795-796, we concluded that art. 12 demanded that any immunity from prosecution granted by the government to secure a witness’s self-incriminating testimony be full transactional immunity, not the more narrow use or derivative use immunity deemed sufficient under the Fifth Amendment. Again, the court’s “broader interpretation” of art. 12 sought to protect a substantive right, not to influence police behavior. Id. at 796.5,6

¶6Inextricably connected to the expansive nature of the art. 12 right against “furnish[ing] evidence” against oneself is the concept of waiver — an issue obviously raised in this case, although not discussed by the court. Because the right to remain silent is a personal one, see Moranv. Burbine, 475 U.S. at 433 n.4; see also United States v. Nobles, 422 U.S. 225, 233 (1975), a waiver must be by the defendant himself, not just his counsel. Commonwealth v. Edward, 75 Mass. App. Ct. 162, 173 & n.13 (2009) (waiver of right to public trial must be by defendant, not only defendant’s counsel on his behalf). Cf. State v. Joseph, 109 Haw. 482, 498 (2006) (interpreting Hawaii Constitution: “Since the right to remain silent is personal, it cannot be deemed waived simply because an attorney is present during interrogation”).7

¶7A waiver must be voluntary, knowing, and intelligent, and we *306“ ‘indulge every reasonable presumption against waiver’ of fundamental constitutional rights,” Commonwealth v. White, 374 Mass. 132, 137 (1977), aff’d (by an equally divided court), 439 U.S. 280 (1978), quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938), including the right against self-incrimination. The right not to furnish evidence against oneself unquestionably includes the right to say absolutely nothing in response to custodial police questioning — to remain silent. As the Court indicated in Mirandawhen discussing the Fifth Amendment — and it should be equally if not more true with respect to art. 12 — knowledge of this basic right is “the threshold requirement for an intelligent decision as to its exercise,” Miranda, 384 U.S. at 468, and, concomitantly, as to its waiver. Similarly, an intelligent waiver of the right includes knowledge of the “consequences of forgoing it,” because “[i]t is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise [or waiver] of the privilege.” Id. at 469. See Commonwealth v. Garcia, 379 Mass. 422, 429 (1980) (“A confession can be voluntary in the legal sense only if the suspect actually understands the import of each Miranda warning”). Requiring police who interrogate a suspect in custodial circumstances to administer the Miranda warnings to the suspect directly, and to obtain that person’s affirmative waiver, provides a basic level of assurance that the suspect understands his right against self-incrimination and has voluntarily, knowingly, and intelligently decided to waive it. See id. at 430. The rule the court adopts today removes this assurance.

¶8I turn to the court’s second reason for its ruling, that the safeguards the court adopts — requiring the presence of counsel and opportunity to consult — together qualify as a “bright-line” rule. They do not. While the physical presence or absence of a suspect’s lawyer during custodial interrogation may be an unambiguous and easily ascertainable fact, the same cannot be said of “an opportunity to consult with the lawyer beforehand.” Ante at 294. What constitutes an “opportunity to consult”? Is it *307enough if the suspect and the lawyer speak together for fifteen minutes? Ten? Five? One? Does it matter if the lawyer and the suspect have a prior relationship? Does it matter whether the lawyer has any training in criminal defense? It is clear that what should matter here is not the opportunity to consult but the actual consultation itself: have the lawyer and the suspect — the lawyer’s client — discussed at least the client’s right against self-incrimination and the possibility of waiver? However, there can be no inquiry into the nature or contents of the consultation because the attorney-client privilege forbids it. But if we have no ability to learn any details about the consultation, how can we have any confidence that the suspect has even been informed of his right not to incriminate himself, much less effectively waived it? At best, we are left with hypothesis or speculation about the state of the suspect’s knowledge and understanding, a result against which the Court in Mirandaspecifically cautioned.8

¶9This court has never had the occasion to consider requiring, as a separate matter of State law under art. 12, that Mirandawarnings be given as a condition precedent to custodial police interrogation. See Commonwealth v. Snyder, 413 Mass. at 531. This case presents such an occasion. I would adopt, as a matter of our common law in order to actualize the guarantees of art. 12, a true bright-line role that in every custodial interrogation, police must first administer Miranda warnings and obtain the suspect’s own waiver of his right against self-incrimination, no matter whether counsel is also present, and no matter whether counsel and the suspect consulted beforehand. Unless the suspect has heard the warnings from the interrogator, no statement obtained as a result of the interrogation should be admitted in evidence.

¶10The police have been administering Miranda warnings to suspects for more than forty years; doing so is an integral piece *308of proper police procedure. Cf. Commonwealth v. Smith, 412 Mass. at 836 (“The failure to administer the Miranda warnings as presently required by Federal law is itself an improper police tactic”). The warnings, and their administration, are clear and straightforward, and this clarity offers essential protection of a suspect’s art. 12 rights. Because the court does not continue to require the warnings in every custodial police interrogation, I respectfully dissent.