EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, January 3, 2019

Fourth Circuit Finds That Suspects Can Pre-Assert Their Miranda Rights

A few years ago, I published the article, "Cloning Miranda: Why Medical Miranda Supports the Pre-Assertion of Criminal Miranda Rights," in the Wisconsin Law Review. The article argued that law enforcement officials should not be able to question a suspect who invokes his Miranda rights before he has been given the Miranda warning. Recently, the United States Court of Appeals for the Fourth Circuit reached the same conclusion while answering a related question.

In United States v. Abdallah, 2018 WL 6613333 (4th Cir. 2018), 

The officers chose not to record the interrogation [of Defendant Nader Abdallah]. Instead, Inspector Sylvester took notes and Detective Calhoon observed while Special Agent Lewis interrogated Defendant. According to the officers, Special Agent Lewis started the interrogation by reading Defendant his Miranda rights. Defendant purportedly interrupted “approximately halfway” through to inform the officers that he “wasn’t going to say anything at all.”...Agent Lewis responded by stating, “Well, just let me finish your Warning first.”...Immediately after the warning, Agent Lewis asked, “Do you even know why you’re under arrest[?]” Defendant responded, “No, tell me.”...Agent Lewis then repeated the Miranda warning. This time, Defendant did not interrupt, and Defendant indicated that he understood his rights. Defendant subsequently made multiple inculpatory statements.

The district court subsequently denied the defendant's motion to suppress his inculpatory statements. The Fourth Circuit, however, reversed, finding that a suspect can invoke his Miranda rights while being read those rights or even before being read those rights. According to the court,

There is no principled reason to adopt the conflicting presumptions that defendants must know the criminal laws which inculpate them but cannot know the constitutional rights which protect them. Nor is there any reason for the law to effectively penalize a defendant who, even without receiving the warnings required by Miranda, is aware of his constitutional rights and chooses to exercise them.

Moreover, the theory underlying the government’s argument fundamentally misconceives the relationship between Miranda warnings and the right to remain silent. To that end, the Supreme Court has held that defendants have a constitutional right to remain silent even when they are not subjected to custodial interrogation and thus have no right to Miranda warnings.




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