State Supreme Court Says Police Need Better Waivers Before Questioning (youtube.com)
Maine, where the state constitution is a little stricter than the US Constitution on this subject. In Maine, their supreme court made clear, when dealing with police citizens have their rights by default and up until they waive them. ‘Police must secure an explicit waiver of the right against self incrimination before questioning a subject in custody without counsel, and they also must halt interrogation to seek clarification if a suspect asserts their rights ambiguously.' The person questioned has to actually say ‘I waive that right’ or some other clear and unequivocal waiver. Since such language is not even in the vocabulary of Americans (except some lawyers), it seems unlikely anyone would even be capable of waiving this right if that is what is required.
That's a very different style of policing. Not sure how that will play out.
(The judge said that such a clear and unequivocal waiver is required for all waivers of constitutional rights.)
In this Maine departs from the US Supreme Court's decision that when a suspect invokes their rights ambiguously, questioning can continue.
‘I think most people would agree that if the US Constitution says you’ve got these rights, you should have these rights,' said Lehto, when he was saying he thought the US Supreme Court should also decide this. ‘But apparently they’ve been chipping away at that over the years.'
Lehto made a good point, that since everyone basically has seen TV shows where police read rights to suspects, we might be tempted to assume everyone knows he has this right and what the right is, but since every day, today for example, thousands of people will be arrested, many of whom never expected to be arrested for anything ever, despite the fact that portions of their arrest will feel familiar because they've watched the TV shows, it will be new to them, and there's a very good change they'll be overwhelmed by those circumstances to the point where you will forget you have those rights. Or maybe more likely will forget the importance of them, or have the steel will to stick by them in the face of peer pressure or tricks the police have practiced every day a dozen times for years, to get people to incriminate themselves (sometimes against harmdoers and sometimes against non harm doers).
‘If you had an attorney present during an arrest the first thing he’d tell you is shut your mouth and don't speak to them.' ‘What if they ask me my name?’ ‘You can tell them your name.’ ‘What if they ask me what I was doing tonight?’ ‘Shut your mouth.’ ‘Don’t talk. Invoke your right.'
Police will say, ‘Well right now we’re still investigating. This is your opportunity to tell us what happened. And it will go a long way towards making things right.'