Wilkerson v. United States

NEWMAN, Chief Judge,

concurring:

Though I join the court’s opinion, it is not without misgivings that I subscribe to its conclusion that the quantum of proof by which the government must show a waiver of Miranda rights is a “preponderance of the evidence.” The “preponderance” rule was first adopted by this court in Hawkins v. United States, D.C.App., 304 A.2d 279, 282 (1973) (citing Lego v. Twomey, 404 U.S. 477 , 92 S.Ct. 619 , 30 L.Ed.2d 618 (1972)). More recent Supreme Court cases, however, have characterized the government’s burden of proof in Miranda-waiver determinations as “great,” Tague v. Louisiana, 444 U.S. 469, 471 , 100 S.Ct. 652, 653 , 62 L.Ed.2d 622 (1980) (quoting North Carolina v. Butler, 441 U.S. 369, 373 , 99 S.Ct. 1755, 1757 , 60 L.Ed.2d 286 (1979)); “high,” Tague v. Louisiana, supra 444 U.S. at 470 , 100 S.Ct. at 652 (quoting Miranda v. Arizona, 384 U.S. 436, 475 , 86 S.Ct. 1602, 1628 , 16 L.Ed.2d 694 (1966)); and “heavy,” id. at 475 , 86 S.Ct. at 1628 (quoted in Tague v. Louisiana, supra 444 U.S. at 470 , 100 S.Ct. at 652 ) and in *736 Fare v. Michael C., 442 U.S. 707, 724 , 99 S.Ct. 2560, 2571 , 61 L.Ed.2d 197 (1979), and in North Carolina v. Butler, supra 441 U.S. at 372 , 99 S.Ct. at 1757 ; and as accompanied by a presumption against waiver, Tague v. Louisiana, supra 444 U.S. at 471 , 100 S.Ct. at 653 (quoting North Carolina v. Butler, supra 441 U.S. at 373 , 99 S.Ct. at 1757 ). Appellant contends that this language undercuts our holding in Hawkins v. United States, supra. And, indeed, I am not completely persuaded by the majority’s grounds for distinguishing Butler and Tagne. Nevertheless, while these cases may draw into question our Hawkins opinion, I am unable to discern a sufficient mandate from the Supreme Court’s language to vitiate Hawkins , although the issue is not free from doubt.