holding that police scrupulously honored defendant’s right to remain silent where police did not renew questioning of defendant until the day after he asserted his right to remain silent and where police readvised him of his Miranda rights before defendant gave statement
How later courts described this case
- holding that police scrupulously honored defendant’s right to remain silent where police did not renew questioning of defendant until the day after he asserted his right to remain silent and where police readvised him of his Miranda rights before defendant gave statement
- stating that where an individual has invoked his right to remain silent, it has been held that there is not a per se rule prohibiting the authorities from ever initiating a discussion or further questioning the individual on the subject
- failure to disclose pending lawsuit
Written by the judges who cited it.
The opinion
*11 SHEPARD, Justice,
dissenting.
In setting aside our decision in Phillips v. State (1986), Ind., 492 N.E.2d 10 , the Court does several remarkable things. First, it overrules a decision reached without dissent only six months ago. Second, it does so without finding any particular reason why that decision should not be regarded as stare decisis. Third, it chooses a new standard plainly at variance with existing Fifth Amendment case law.
Judges should always be alert to the fact that existing case law may outlive its usefulness and we should be willing to test old rules against current reality. Nevertheless, a court which leaps from one side of a question to another creates confusion in the profession and among the citizenry about what the law really is at any given moment in time. This Court has traditionally held that stare decisis requires that a rule be followed unless it now appears from experience that it "works an obvious injustice upon litigants and is not supported by any authority." New York, Cincinnati, and St. Louis Railroad Co. v. Henderson (1958), 237 Ind. 456, 465 , 146 N.E.2d 531, 537 . Accord, Brooks v. Robinson (1972), 259 Ind. 16 , 284 N.E.2d 794 .
As for the merits of today's change in heart about what the Fifth Amendment of the United States Constitution requires, I choose not to belabor the point except to say that I believe that we properly interpreted the Fifth Amendment in Phillips. To belittle that decision by calling it dicte seems to me unbecoming.
The central thesis of the majority's position appears to be that a prisoner who asks for his lawyer may not be badgered but that one who tells the authorities that he wishes to invoke his right to remain silent may be. What good is the attorney, pray tell, if not to assure that the accused does not say something or consent to something that may not be in his best interests?
Although it is convenient to pass over the record in order to make today's decision seem more palatable, I submit that the evidence reveals a great deal about the fate of future appellants who come to this Court seeking vindication of their Fifth Amendment rights. The first time Moore was questioned, he asserted his innocence and invoked his right to remain silent. Knowing that he had done so, a second officer decided to attempt a further conversation in the hope that Moore could be persuaded to consent to a search of his residence. The next day, yet another attempt was made to elicit a confession from the defendant notwithstanding his expressed desire not to be questioned. If this set of efforts demonstrates that the authorities "serupulous honored" a defendant's decision not to speak, it is difficult to foresee that any defendant will ever receive relief from this Court by citing the Fifth Amendment.
To rely on Michigan v. Mosley, 423 U.S. 96 , 96 S.Ct. 321 , 46 L.Ed.2d 313 (1975), for today's decision is especially amazing. It is correct that the inquiry to be made about the voluntariness of a confession made by a prisoner who has invoked his right to remain silent is whether the police "serupu-lously honored" his request. The Mosley Court made it plain enough what "serupu-lously honored" meant. When Mosley invoked his right to remain silent, interrogation ceased immediately, the officer did not try to resume questioning or to persuade Mosley to reconsider, and Mosley was read his Miranda rights before interrogation commenced concerning another offense. Mosley, 423 U.S. at 104 , 96 S.Ct. at 327 , 46 L.Ed.2d at 322 .
To rely on Mosley as authority for the idea that the Fifth Amendment permits police to attempt to persuade prisoners to change their mind about invoking their rights so as to permit further interrogation is beyond the pale.
DeBRULER, J., joins in this dissent.