Massachusetts SJC Rules Non-Verbal Head Shake As Effective As Words In Right To Remain Silent

It is said that “Actions speak louder than words.” The Massachusetts Supreme Judicial Court reaffirmed that very powerfully in the area of Massachusetts arrests last week, as it ruled that a person shaking his head horizontally left to right, indicating “no”, is just as powerful and effective as the spoken word when it comes to invoking the constitutional right to remain silent. This right, of course, is familiar to anyone with a television set, and is among several rights encoded in the famous Miranda Rights.

The case stems from an October 2008 arrest of a man suspected of indecent assault and battery on the Boston subway system. The suspect made incriminating statements after he had been asked by police officers for the Massachusetts Bay Transportation Authority (a/k/a the “T”,) if he wished to continue speaking with them, and he had shaken his head back and forth. Specifically, at the start of the interrogation, officers gave the suspect a typical “waiver form” advising the suspect of his right to remain silent and his right to have a lawyer present during questioning. Before the suspect had finished signing the form, an officer asked the suspect if he wished to discuss what he was being charged with. In response, the suspect asked what would happen if he didn’t speak to police. When the officer told him “nothing,” the suspect asked that he be allowed to go home. Clarifying, the officer then asked him, “So you don’t want to speak?” At that point, the suspect shook his head back and forth.

At trial, the man’s attorney later filed what is called a Motion To Suppress, arguing that his client’s incriminating statements to police should be ruled inadmissible at his trial. The SJC reviewed the case, and agreed with the defendant. This ruling is unusual, because until now in Massachusetts, the legal standard applied to determine whether or not a suspect has validly invoked his right to remain silent, has been the long-held federal standard. That standard requires that a suspect declare his right not to speak with police “with the utmost clarity.” However, the SJC ruled that a person arrested in Massachusetts has greater rights under the Massachusetts Declaration of Rights than provided under federal law on this subject.

According to newly-appointed Justice Barbara Lenk, who wrote the court’s unanimous opinion, “When law enforcement officials reasonably do not know whether or not a suspect wants to invoke the right to remain silent, there can be no dispute that it is a `good police practice’ for them to stop questioning on any other subject and ask the suspect to make his choice clear.” Suffolk District Attorney Dan Conley, a prosecutor I often admire, sharply disagreed, saying the ruling will likely confuse police in their interrogations. “The high court now is rejecting the clear federal standard for a less clear standard,’‘ a press spokesman for Conley said. “It widens the gray areas in police interviews rather than creating a clear line for police officers to follow.” Conley said the police officers who had questioned the defendant believed the act of shaking his head was “an ambiguous response to multiple questions” and a simple misunderstanding of the next step in the arrest process. The defendant’s appellate lawyer said the court’ ruling makes clear that a suspect’s right to terminate police questioning must be “scrupulously honored.”

In my opinion as a Dedham, Massachusetts criminal defense lawyer, given the court’s unanimous ruling, a federal appeal by state prosecutors is unlikely. The legal bottom line: When questioned by police in the state of Massachusetts, a person can invoke the right to remain silent with less clarity than required under federal law.