discussing defendant’s silence in presence of person making accusation concerning matters within defendant’s knowledge which defendant heard and understood and which it would have been natural for him to deny
How later courts described this case
- discussing defendant’s silence in presence of person making accusation concerning matters within defendant’s knowledge which defendant heard and understood and which it would have been natural for him to deny
- the cat-out-of-the-bag theoiy was employed and defendant’s statements were suppressed where defendant had not been Mirandized and made subsequent incriminatoiy statements while under custodial interrogation
- keeping lawyers to a high standard during the persuasion phase of a criminal trial
- characterizing unwarned custodial interrogation as “illegal”
Written by the judges who cited it.
Distinguished
Distinguished by Commonwealth v. Boughter, 2 Mass. Supp. 351 (1981)
Commonwealth v. Haas, supra, is distinguishable because there were no Miranda warnings given.
The opinion
Braucher, J.
(concurring). I agree with all that is said in the opinion of the court. We are bound by decisions of the Supreme Court of the United States to hold that there was error both as to the motions to suppress and as to the improper argument of the prosecutor. As to the improper argument, I have nothing to add. But the rulings we are required to make under Miranda v. Arizona, 384 U.S. 436 (1966), are unjust, and I think some comment on their practical effect is appropriate.
I assume, as apparently the court does, that there is sufficient evidence, apart from the suppressed evidence, to present a jury question as to the defendant’s guilt. The defendant’s statements, which we are required to suppress, were voluntarily made, and they bore significant indicia of reliability. If the defendant testifies at his new trial, they will be admissible to impeach his credibility. Commonwealth v. Mahnke, 368 Mass. 662, 691-697 (1975), cert, denied, 425 U.S. 959 (1976). Commonwealth v. Harris, 364 Mass. 236, 238-242 (1973). Oregon v. Hass, 420 U.S. 714 (1975). Harris v. New York, 401 U.S. 222 (1971). Walder v. United States, 347 U.S. 62 (1954). Thus it is *565 highly probable that the jury at a new trial will not hear either the defendant’s own testimony or his out-of-court statements. Although he testified in his own defense at the trial now under review, the prospect of impeachment will be a powerful deterrent at the new trial.
Thus to curtail the evidence to be heard by the jury is not to improve the reliability of the jury’s verdict. The justification for the exclusion of reliable evidence is said to be the deterrence of improper police conduct. But here the police officers acted in good faith, attempting to observe proper legal standards. Their violation of those standards was not gross or wilful, was not of a kind likely to mislead the defendant, and did not create a significant risk that his statement that he left home at 6:30 a.m. may have been untrue. See Model Code of Pre-Arraignment Procedure § 150.3 (1975).
In these circumstances, I should ordinarily hope that an application for review by the Supreme Court might result in a refinement of that Court’s pronouncements. If the objective is to communicate a message to the police, it is highly desirable that the message communicated be comprehensible and rational rather than confused and arbitrary. Only the Supreme Court can clarify the message authoritatively.
Unfortunately, in the present posture of this case, review by the Supreme Court seems quite unlikely. We order a new trial, and we do so under Federal compulsion, by reason of improper argument by the prosecutor. There is no likelihood that we are in error on this point. But we are also, in the interest of good judicial administration, giving final directions that reliable evidence must be excluded at the new trial. It would be highly desirable that the latter ruling be reviewed, and the Supreme Court appears to have jurisdiction to review such cases. Miranda v. Arizona, 384 U.S. 436 , 498 n.71 (1966). But the posture of the case makes it unlikely that the Supreme Court will review a ruling that appears to be interlocutory. Hence this lament.