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Implied Waivers for Juveniles – Good?

Because the facts are often important in a Miranda case, there is an extended recitation of the facts here.

The Murder

Defendant Samuel Moses Nelson turned 15 years old in April 2004. Later that month and in May he burglarized two homes and took wallets and checkbooks. In June he burglarized the home of his 72-year-old neighbor, Jane Thompson, taking a credit card. Eight days later she was found dead of blunt force trauma to the head.

Shortly thereafter, deputies spoke with Defendant outside his home. Defendant claimed he had no idea who might have killed Thompson, and said he was willing to take a lie detector test.

The next day the deputies returned and Defendant agreed to discuss the case with them. They drove Defendant to the sheriff’s office. In a videotaped interview, the investigators asked some preliminary questions and then advised Defendant of his right to counsel and right to remain silent under Miranda. Defendant affirmed that he understood his rights and expressed a willingness to speak with the investigators. They did not obtain and express waiver.

During the interview, Defendant admitted entering Thompson’s house and taking some jewelry, her credit card, and her purse. Despite these admissions, he denied responsibility for Thompson’s murder. About three and a half hours into the session, the investigators asked Defendant if he wanted to take a polygraph test, and Defendant asked to call his mother. When the investigators asked the reason for the call, he said he wanted to “let her know what’s happening” and also to “talk to her about it” and “see what I should do.” The investigators continued with their questions, which Defendant answered. As the interrogation progressed and Defendant became aware of the evidence against him, he changed his story several times and ultimately confessed to the previous burglaries.

Defendant also made additional requests to call his mother and was permitted several times to try to reach her. Although he was unable to contact his mother, he did call and speak to his grandmother and brother. At one point Defendant indicated he wanted the investigators to leave him alone because, in his words, they were “getting on me for something I didn’t do.” At other points Defendant declined to take a polygraph test, because his relatives had told him in a telephone call that they did not want him to “take the test” or “do anything” until a lawyer or his mother got there.

Finally, toward the end of the interview, Defendant asked to have “a few minutes to myself” and answered affirmatively when investigators offered him a pencil and paper to write down his feelings. The investigators left the room after telling Defendant this was his chance to explain what happened and to “[d]o the right thing.” On their way out, they again allowed Defendant to telephone his mother and brother. When the investigators returned, Defendant said he had not written anything and asked, “Do you think I could be alone until my family gets here? They should be here in like 10 minutes?” The investigators told Defendant they were “real tired” of his playing games, reiterated he should take this opportunity to say what happened in his own words, and left once more. Defendant then wrote out a statement and later explained that he entered Thompson’s house in the middle of the night as she dozed on her living room sofa, and that he used his hammer to strike her head repeatedly when she suddenly stirred. After reading his confession out loud, he confessed to the deputies orally.

Defendant was tried as an adult and convicted at trial when his statement was not suppressed.


On appeal, the Defendant argued
1. There should be no implied waivers with Juveniles, only express waivers;
2. The request to call his mother was an invocation of the right to remain silent;
3. Officers should use a different test when determining when a juvenile has invoked the right to silence or an attorney than when an adult does;

The Holding

1. The California Supreme Court held that pursuant to Berghuls v. Tomkins (Legal Update July, 2010) the right to remain silent has to be unambiguously asserted. Moreover, the USSCT also held that implied waivers are valid. The holding applies to both adults and juveniles. This holding is of course after an advisement and knowing, intelligent and voluntary waiver.
2. Consistent with Davis, the request for a parent must be unequivocal and clear to a reasonable officer to be an invocation to the right to remain silent. Here, the qualifying statements by the suspect “to let her know what is going on,” was not an unequivocal invocation of the right to remain silent.
3. Finally, the court held that the test for determining whether there has been an invocation is the same for juveniles as it is for adults. For both the right to remain silent and the right to an attorney it must be a clear, unambiguous invocation.

The California Supreme Court rejected the Defendant’s contentions and upheld the admission of the statement and the conviction.

As in every case, insure that you as an investigator make sure you clearly advise the suspect, insure that they indicate an understanding of that right and proceed from that point in a legal and proper manner.


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