As most people are aware in Florida and elsewhere, when the police arrest a suspect or take a suspect into custody, the police are required to read the suspect the Miranda warnings before attempting to take a statement from the suspect. The Miranda warnings discuss a variety of rights, but a primary right that must be disclosed to the suspect is that he/she has a right to remain silent. This means that the suspect can refuse to speak with the police at any time, and the state cannot use the defendant’s silence against the suspect in court. In order for a defendant to assume the protection of the Fifth Amendment right to remain silent, the suspect must clearly state that he/she would like to remain silent or that he/she would like to speak with an attorney before talking to the police. Vague or unclear statements about the right to remain silent and the right to an attorney are not generally held up in court. Additionally, the police want to talk to suspects for a reason- to get evidence they can use to convict them. Therefore, the police may disregard anything but a clear and confident declaration of the right to remain silent and the right to talk to an attorney. If the police think the suspect’s position leaves room for interpretation, the police will often move forward with trying to take a statement.
However, once the suspect is clear that he/she does not want to talk to the police or wants to speak with a lawyer, the police are required to shut down any attempts to take a statement from the suspect. In other words, once a suspect or defendant invokes the right to remain silent, that remains in effect for the remainder of that case. The defendant can always change his/her mind and make contact with the police or the state, but the state is not supposed to try to take a statement from the defendant on their own initiative.
This applies to the police directly trying to speak to the defendant, but it also applies to the police trying to get a statement from the defendant using more indirect methods. In a recent sexual battery case south of Jacksonville, Florida, the defendant was arrested for sexual battery and the police tried to take a statement from the defendant after his arrest. After he was read his Miranda warnings, the defendant requested a lawyer and refused to give any statements. The defendant was taken to jail and remained there as he was unable to bond out. While in jail, the defendant started talking about his case to one of the inmates in his cell. That inmate went to the police and told the police that the defendant was talking about his case.
As a related matter, it is always a bad idea for a defendant to talk about a pending case to other people, particular other inmates in jail. Just about every inmate is going to be looking for a better deal, and providing incriminating information about another defendant may be one method to get a better deal with the state.
In any case, after the police learned the defendant was making statements about his case, they wired the inmate and encouraged him to keep talking to the defendant about his case so they could record incriminating statements and use them against the defendant in court. The inmate was able to continue talking to the defendant, and several incriminating statements of the defendant were recorded.
The criminal defense lawyer filed a motion to suppress those recorded statements arguing that they violated the defendant’s Fifth Amendment right to remain silent. The defendant had already invoked his 5th Amendment right to remain silent. From that point, the police were not permitted to try and take a statement from the defendant themselves or use any other person to take a statement from the defendant. Since the police actively used the inmate to get statements from the defendant, those statements were illegally obtained and inadmissible in court.
Had the police taken a passive role in this scenario, they could have used the inmate to testify against the defendant in court. Once a defendant invokes his right to remain silent and have an attorney, the police cannot bother him about a statement. However, if the defendant starts talking about the case on his/her own, the police can use that evidence against the defendant as long as they do not elicit such statements themselves. In this case, the police could have used the inmate as a witness to testify to the statements he heard the defendant make (albeit less reliable than a recording), but the police could not take a role in getting the defendant to make such statements. As soon as the police take an active role, the Fifth Amendment is likely violated.