Sunday, August 29, 2010

Case o' The Week: Ninth's Hurd Mentality - Good decision rejects use of post-Miranda Silence

"You have the right to remain silent. Your silence can and will be used against you at trial."

Count on the California Court of Appeal to rewrite the Miranda warnings and permit a defendant's silence to be used against him at trial as evidence of guilt. Count on Judge Beezer to set 'em straight. Hurd v. Terhune, 2010 WL 3293355 (9th Cir. Aug. 23, 2010), decision available here.

Players: Decision by Judge Beezer, joined by Judges Pregerson and Thompson.

Facts: Hurd’s wife, Bea, sought a divorce. Id. at *1. Bea was upstairs with Hurd when their son heard a shot. Id. Bea came down, crying, and collapsed; at the hospital she died of a single shot to her chest. Id. At his California court trial, Hurd testified that Bea was borrowing his gun and it accidentally went off when he showed her how to operate it. Id. at *2.

He had told the same account to police after being Mirandized. Id. The cops had then asked him to submit to a polygraph; Hurd refused. Id. The cops asked Hurd to demonstrate how the shooting occurred; he refused. Id. Before trial, Hurd moved to suppress his refusals to take a polygraph and to reenact the shooting. Id. After his motion was denied, the D.A. repeatedly referred to Hurd’s refusals as evidence as guilt at trial. Id. Hurd was convicted and sentenced to LWOP; his appeals were denied, as was his federal habeas in district court. Id. at *2.

Issue(s): “We first address Hurd’s argument that the state trial court improperly admitted as evidence his refusal to reenact the shooting in violation of his Fifth Amendment rights as determined by the Supreme Court in Miranda v. Arizona, . . . and Doyle v. Ohio.” Id. at *3.

Held: “Because the California courts’ application of Miranda and Doyle was unreasonable, we reverse the decision of the district court and direct that a writ of habeas corpus issue.” Id. at *1. “The California Court of Appeal’s Miranda and Doyle analysis is incorrect. The Supreme Court has clearly established that, after receiving Miranda warnings, a suspect may invoke his right to silence at any time during questioning and that his silence cannot be used against him at trial, even for impeachment.” Id. at *5. “Contrary to the conclusion of the California Court of Appeal, the right to silence is not an all or nothing proposition. A suspect may remain selectively silent by answering some questions and then refusing to answer others without taking the risk that his silence may be used against him at trial.” Id. at *6.

Of Note: What is “clearly established federal law” for the purpose of AEDPA review? Supreme Court decisions. But what is one to make of a wealth of federal circuit precedent dealing with the same issue presented by a habeas petition? That is “persuasive authority,” explains Judge Beezer. Id. at *6. It is one of the many inanities of AEDPA review that – like Lord Voldemort – circuit authority is the precedent that “must not be named.” Aware of that taboo, Judge Beezer tacks his list of circuit authority on the use of a suspect’s silence after concluding that Supreme Court law controls this habeas issue. Id. (discussing Ninth Circuit and other circuit authority).

How to Use: Hurd is a great opinion on the issue of post-Miranda silence. Judge Beezer carefully distinguishes Supreme Court authority that allows post-Miranda inconsistent statements to be used against a defendant. Id. at *5 (discussing Anderson). He also emphasizes that the protections of Miranda silence can apply to silence to specific questions: the right is not an “all or nothing proposition.” Id. at *6. Finally, he explains that a suspect who answers some questions may not have unambiguously asserted Miranda, but if the suspect later remains silent that silence is not then admissible. Id. at *6. Hurd will be a lead decision on several interesting corners of Miranda law; it is worth a close read.

For Further Reading: A week ago, in Rivera-Corona, Judge Berzon explained how to fire retained counsel and get a P.D.. See blog post here. Is that switch a good idea? That frequent debate is the subject of yet another recent study; Richard Hartley, Holly Miller and Cassia Spohn, Do you get what you pay for? Type of counsel and its effect on criminal court outcomes, discussed (with considerable skepticism) here.

Image of Ernesto Miranda from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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