Waiver
In general
• A waiver is an intentional relinquishment or abandonment of a known right.
Allen v. State, 686 N.E.2d 760, 772 (Ind. 1997), reh’g denied, cert. denied, 525 U.S. 1073 (1999)(citing Edwards v. Arizona, 451 U.S. 477, 482 (1981), reh’g denied)
• The defendant may waive his Miranda rights provided such waiver is made “voluntarily, knowingly and intelligently.”
Smith v. State, 497 N.E.2d 601, 606 (Ind. Ct. App. 1986)(quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966), reh’g denied)
• Any confession made after a valid waiver of Miranda rights is admissible at trial.
Minor v. State, 641 N.E.2d 85, 91 (Ind. Ct. App. 1994), trans. denied(citing French v. State, 540 N.E.2d 1205, 1207 (Ind. 1989))
Presumption that a defendant did not waive the defendant’s Miranda rights
• “The analysis [of whether the defendant waived his Miranda rights] begins with the presumption that [the defendant] did not waive his Miranda rights.”
Johnson v. State, 829 N.E.2d 44, 50 (Ind. Ct. App. 2005), trans. denied(quoting Deckard v. State, 670 N.E.2d 1, 6 (Ind. 1996))
See Martin v. State, 779 N.E.2d 1235, 1238 (Ind. Ct. App. 2002), trans. denied(citing Little v. State, 694 N.E.2d 762, 765 (Ind. Ct. App. 1998))(“Our analysis begins with the presumption that the defendant did not waive his rights.”)
Burden of proof: Claims under the United States Constitution
• [T]he State need prove waiver only by a preponderance of the evidence.
Colorado v. Connelly, 479 U.S. 157, 168 (1986)
See Berghuis v. Thompkins, 560 U.S. 370, 384 (2010)(citing Colorado v. Connelly, 479 U.S. 157, 168 (1986))(“[T]he Court stated that this ‘heavy burden’ [to show waiver] is not more than the burden to establish waiver by a preponderance of the evidence.”)
Burden of proof: Claims under the Indiana Constitution
• The State has the burden to prove beyond a reasonable doubt that the waiver was made knowingly and voluntarily.
Palilonis v. State, 970 N.E.2d 713, 732 (Ind. Ct. App. 2012), trans. denied(citing Horan v. State, 682 N.E.2d 502, 509 (Ind. 1997), reh’g denied)
See Little v. State, 694 N.E.2d 762, 765 (Ind. Ct. App. 1998)(citing Thompson v. State, 613 N.E.2d 461, 464 (Ind. Ct. App. 1993))(“[T]he State must prove beyond a reasonable doubt that the defendant knowingly and intelligently waived his rights.”)
See also State v. Banks, 2 N.E.3d 71, 80 (Ind. Ct. App. 2014), trans. denied(citing Pruitt v. State, 834 N.E.2d 90, 114-15 (Ind. 2005), reh’g denied, cert. denied, 548 U.S. 910 (2006))(“The State bears the burden of proving beyond a reasonable doubt that the defendant voluntarily waived his rights.”)
Determining whether there has been a valid waiver of Miranda rights
• This inquiry is two pronged.
Smith v. State, 497 N.E.2d 601, 606 (Ind. Ct. App. 1986)(citing Edwards v. Arizona, 451 U.S. 477, 482 (1981), reh’g denied)
See Berghuis v. Thompkins, 560 U.S. 370, 382 (2010), reh’g denied(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986))(“The waiver inquiry ‘has two distinct dimensions’ . . . .”)
• First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception.
Smith v. State, 497 N.E.2d 601, 606 (Ind. Ct. App. 1986)(citing Moran v. Burbine, 475 U.S. 412, 421 (1986))
Berghuis v. Thompkins, 560 U.S. 370, 382 (2010), reh’g denied(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986))(“[W]aiver must be ‘voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception,’ . . . .”)
• Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.
Smith v. State, 497 N.E.2d 601, 606 (Ind. Ct. App. 1986)(citing Moran v. Burbine, 475 U.S. 412, 421 (1986))
Berghuis v. Thompkins, 560 U.S. 370, 382-83 (2010), reh’g denied(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986))(“[W]aiver must be . . . ‘made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.’”)
• Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
Smith v. State, 497 N.E.2d 601, 606 (Ind. Ct. App. 1986)
Express and implied waivers
• An express oral or written statement is not required to establish a knowing and voluntary waiver of rights—valid waivers may be implied.
D.M. v. State, 949 N.E.2d 327, 339 (Ind. 2011)(citing Berghuis v. Thompson, 560 U.S. 370, 384 (2010), reh’g denied)
See Horan v. State, 682 N.E.2d 502, 510 (Ind. 1997), reh’g denied(citing Cook v. State, 544 N.E.2d 1359, 1363 (Ind. 1989))(“[A]n express written or oral waiver is not necessary to establish that the defendant waived his Miranda rights.”)
• A written waiver . . . is certainly strong proof that a valid waiver occurred, North Carolina v. Butler, 441 U.S. 369, 373 (1979), but, when challenged, the State may be required to tender additional proof of voluntariness, Ringo v. State, 736 N.E.2d 1209, 1212 (Ind. 2000).
D.M. v. State, 949 N.E.2d 327, 339 (Ind. 2011)
• Thus, a written waiver is neither necessary nor sufficient to establish that a person voluntarily waived his or her Miranda rights.
D.M. v. State, 949 N.E.2d 327, 339 (Ind. 2011)(citing North Carolina v. Butler, 441 U.S. 369, 373 (1979))
• Generally, a valid implied waiver occurs where a suspect who has been advised of his or her Miranda rights and has acknowledged an understanding of those rights makes an uncoerced statement without taking advantage of them.
D.M. v. State, 949 N.E.2d 327, 339 (Ind. 2011)(citing Berghuis v. Thompson, 560 U.S. 370, 384 (2010), reh’g denied)
N.B. v. State, 971 N.E.2d 1247, 1256 (Ind. Ct. App. 2012), trans. denied(quoting D.M. v. State, 949 N.E.2d 327, 339 (Ind. 2011))
See Berghuis v. Thompson, 560 U.S. 370, 384 (2010), reh’g denied(emphasis added)(citations omitted)(“If the State establishes that a Miranda warning was given and the accused made an uncoerced statement, this showing, standing alone, is insufficient to demonstrate ‘a valid waiver’ of Miranda rights. The prosecution must make the additional showing that the accused understood these rights. Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent.”)
See also Palilonis v. State, 970 N.E.2d 713, 732 (Ind. Ct. App. 2012), trans. denied(quoting Crain v. State, 736 N.E.2d 1223, 1230 (Ind. 2000))(“‘A waiver of one's Miranda rights occurs when a defendant, after being advised of those rights and acknowledging an understanding of them, proceeds to make a statement without taking advantage of those rights.’”)
Lack of a formalistic waiver procedure
• Although Miranda imposes on the police a rule that is both formalistic and practical when it prevents them from interrogating suspects without first providing them with a Miranda warning, it does not impose a formalistic waiver procedure that a suspect must follow to relinquish those rights.
Berghuis v. Thompson, 560 U.S. 370, 385 (2010), reh’g denied(emphasis added)
• As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.
Berghuis v. Thompson, 560 U.S. 370, 385 (2010), reh’g denied
• Miranda rights can therefore be waived through means less formal than a typical waiver on the record in a courtroom . . . .
Berghuis v. Thompson, 560 U.S. 370, 385 (2010), reh’g denied(citing North Carolina v. Butler, 441 U.S. 369, 375-76 (1979))
Rescission
• [E]ven if an accused elects to waive his rights orally or in writing, the waiver may be rescinded at any time, and “[i]f the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease.”
Anderson v. State, 961 N.E.2d 19, 26 n. 2 (Ind. Ct. App. 2012), trans. denied(quoting Berghuis v. Thompson, 560 U.S. 370, 388 (2010), reh’g denied)
Carr v. State, 934 N.E.2d 1096, 1102 (Ind. 2010), reh’g denied(quoting Berghuis v. Thompson, 560 U.S. 370, 388 (2010), reh’g denied)(alteration in the original)(“Even if an accused elects to waive his rights, such waiver may later be rescinded at any time, and ‘[i]f the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease.’”)
See Elsten v. State, 698 N.E.2d 292, 293 (Ind. 1998)(citing Sleek v. State, 499 N.E.2d 751, 755 (Ind. 1986))(“Although a suspect can intelligently and voluntarily waive this right, it may be reasserted at any time during questioning.”)
• For more information about invoking Miranda rights, please review Invocation of Rights.