In our day-to-day lives, the nodding of one’s head is a universally accepted form of communication. [1] However, this simple act of moving one’s head up and down has no clear meaning in and of itself. For example, a nod could mean an agreement; it could be used for pointing or signaling; it could be used as a greeting, or it could mean to move slightly; a nod might even be a signal to hike a football.

But who of us in the legal profession could have foreseen that fifty-four years after the landmark decision in Miranda v. Arizona a mere nod could signify the waiver of a constitutionally protected right in Tennessee? [2]

In 1966 the US Supreme Court’s landmark decision in Miranda v. Arizona clearly and unequivocally set forth the guidelines for law enforcement to follow to properly use a statement from a person in custody in a subsequent prosecution. We are no doubt all aware of these infamous Miranda warnings, specifically the 5th amendment right against self-incrimination: “You have the right to remain silent… anything you say can and will be used against you in a court of law.” [3] Miranda further advised us that for an accused to waive the above-stated rights, the waiver must be knowing and voluntary. [4] This (radical for its time) decision required that specific procedural safeguards be employed to constitute an express waiver of rights.

Berghuis v. Thompkins was the first time the US Supreme Court considered the propriety of an implicit waiver of rights and found that to be sufficient. [5] “As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise, has made a deliberate choice to relinquish the protection those rights afford.”  [6]

State v. Climer reiterates the fact that the State bears the burden of showing that a waiver of Miranda, whether express or implied, still must comply with a two-pronged test: (1) a waiver was given; (2) the accused gave an unambiguous acknowledgment of these constitutional rights. [7] Strict adherence to the procedure mandated by Miranda appears to be evolving at best and eroding at worst. Then in 2019 the Tennessee Court of Appeals in State v. Massengale took the proposition of “acknowledgment”, be it express or implied, to a whole new level.  [8]

Massengale was charged and subsequently convicted of first-degree murder. A recorded statement he gave was used against him by the prosecution. At the beginning of an interview with law enforcement, Massengale was read his Miranda rights by a detective from a printed form; yet he was never asked to sign a waiver. This recitation of his rights satisfies the first prong of the waiver analysis. However, when Massengale was asked if he “knew all this good stuff,” he responded with a motion with his head that [could] have been perceived as a nod. Subsequently, he did not invoke his right to silence but continued to talk to the officer. The failure to invoke his right was not enough to proclaim this was a knowing waiver. There was absolutely no acknowledgment by Massengale that the warnings had been given in the first place.

What the Court did have in Massengale was in the Court’s own words, “a motion that [might] be interpreted as a nod,” specifying the motion was “ambiguous at best.” [9] The Court of Appeals agreed with the trial judge that this questionable motion did however constitute a valid waiver of the accused’s Miranda rights. Ostensibly the Tennessee Supreme Court has retreated from the “unambiguous acknowledgement” standard promulgated in Climer v State to any form of indication, ambiguous or not, of knowing and waiving constitutional rights. [10]

Was this motion by the accused in fact a nod? And if it was a nod, what did it mean? Was it in response to the detective’s question? No one in this case, not even the detective or the trial judge seemed to know for sure. And so, we must ask ourselves if one does not know something for a fact and one takes no action to attempt to clarify the situation: is it remotely fair or consistent with the principals of Miranda to presume the nod means what the detective needed it to mean to make that statement knowing and voluntary?

The US Supreme Court when deciding Miranda sought to prevent and avoid just this sort of ambiguous situation. Our constitutional rights-- those rights we hold most dear, the inalienable rights afforded to every man and woman regardless of circumstance, the rights that are the core and foundation of a just system—can they be waived by an obscure head nod? We must hope not.

Samantha Hardin is a third year law student at the Lincoln Memorial University Duncan School of Law, where she is the President of the school's Criminal Law Society. She has participated in internships with the Chattanooga law firm Moore & Associates, and the U.S. Attorney's Office.
[1] Nod, Merriam-Webster Dictionary (11th ed.  2016).
[2] Miranda v. Arizona, 384 U.S. 436 (1966).
[3] Id.
[4] Id.
[5] Berghuis v. Thompkins, 560 U.S. 370 (2010) (quoting North Carolina v. Butler, 441 U.S. 369, 376 (1979)).
[6] Id at 385 (citations omitted.)
[7]  State v. Climer, 400 S.W.3d 537 (Tenn. 2013).
[8] State v. Massengale, No. E2018-00387-CCA-R3-CD, 2019 Tenn. Crim. App. LEXIS 290 (Crim. App. May 2, 2019).
[9] Id.
[10] Climer v. State, App.Perm. App.Denied,Tennessee Supreme Court, (August 14, 2019).