The only issue before the court en banc in this appeal from a conviction of armed robbery (22 D.C.Code Sec. 2901) is whether the District Court erred in its conclusion that, on the evidence before it, the Government had sustained its burden of establishing a knowing waiver by appellant of his right to independent legal assistance after his arrest. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

When the case was first before a panel of this court, a majority thought that a circumstance appearing in the prosecution's evidence at trial raised a doubt about the state of appellant's mind in making the seeming waiver, which warranted a remand for a supplementary inquiry. Frazier v. United States, 136 U. S.App.D.C. 180, 419 F.2d 1161 (1969), Circuit Judge (now Chief Justice) Burger, dissenting. On remand, an evidentiary hearing was held at which the Government presented testimony with respect to appellant's capacity to understand the proper warning concededly given him; and the District Court made findings of fact from which it concluded that such capacity existed. Although none of these findings were rejected by the panel on its second consideration of the case, a majority reversed the conviction in an opinion issued February 24, 1971, from which Judge Nichols of the United States Court of Claims, sitting by designation, dissented. We granted rehearing en banc because the sharp and persisting differences within the panel suggested that the case, although something of a sport on its facts, might have important implications with respect to judicial definition of the responsibilities of law enforcement officers in the administration of the Miranda rule. On the record made on remand, we sustain the District Court and affirm the conviction.

* At the remand hearing, Officer Sandy of the Metropolitan Police Department testified that he had arrested appellant at 4:15 P.M. on September 7, 1966, under the authority of an arrest warrant issued in respect of the robbery of a business establishment known as Mike's Carry-Out Shop.1 The arrest was made on the street, and Sandy promptly read to appellant the Miranda warning on a card known as P.D. Form 47. Appellant's response was to say: "You didn't have to read it to me in the first place. I already know my rights." Appellant was then taken to the precinct station where he was searched and booked. Sandy telephoned Detective Keahon of the Robbery Squad at police headquarters-the officer who had procured the issuance of the arrest warrant-to report appellant's arrest. Keahon asked that appellant be brought to his office, and that was done. Sandy testified that throughout this period he had no further conversation with appellant; and that appellant was completely cooperative, in apparent command of himself, and not under the influence of alcohol or narcotics.2

Detective Keahon testified that appellant was delivered to him at 5:20 P.M. His handcuffs were removed and he sat in a chair at Keahon's desk. Only one other police officer-engaged in other duties-was in the large Robbery Squad office, and there was no noise or other disturbance that might be distracting or interfere with hearing. After telling appellant of the warrant under which he had been arrested, Keahon read to appellant the P.D. 47 card, and also a P.D. 54 form which states the Miranda warnings and contains a consent to speak.3 Both forms were given to appellant to read, which he did. He was asked if he understood the warnings, and replied that he did. He was asked specifically if he understood his right to have a lawyer; again the answer was positive, and appellant added that he didn't want a lawyer. It was further Keahon's testimony that:

"I asked him if he knew that anything he said to us could be or would be used against him in court. And he stated that he did. He said, 'I know my rights.' "

Thereafter he signed the P.D. 54 consent form at 5:30 P.M.

Keahon testified that, as these procedures were completed, appellant broke in to say: "I want to clear Teddy. Teddy didn't shoot the woman in that hold-up; I did." This reference was to a robbery of a High's Ice Cream store. Thereafter appellant referred in quick succession to certain other robberies, including Mike's Carry-Out Shop and the Meridian Market. At some point in this colloquy Keahon decided that he should be taking notes of what was being said, and he reached for a pad and pencil. What happened then is described in Keahon's testimony as follows:

A. I started to write. The defendant Frazier said, "No, don't put anything down." He said, "Don't write anything."

Q. How strenuous an objection was that, in your opinion?

A. Well, it wasn't-to me, it didn't seem like an objection. He just said, "Don't write." So, I didn't press it at that time.

Q. Why?

A. Well, he was admitting these hold-ups and I didn't want to start arguing with him as long as he was talking about hold-ups. And he was apparently being very truthful, because he was telling me things about the hold-ups that I didn't know. I didn't want to stop him.

So, as soon as he said, "Don't write," I stopped writing and pushed the pad and pencil away.

There is some confusion in the record as to whether this note-taking incident occurred before or after appellant had told of his participation in the robbery of the Meridian Market. The trial court was at some pains to get this matter cleared up, because Keahon appeared to be testifying on remand that it occurred after the Meridian Market admission, whereas his testimony at trial indicated it had been before. Keahon was asked to refresh his recollection during a recess; and his final testimony on this point is as follows:

Q. Lt. Keahon, during the noon recess did you have an opportunity to read from certain portions of the original trial transcript in this regard?

A. Yes, sir.

Q. And has that refreshed your recollection as to the events which took place in the afternoon of September 6, 1966?

A. Yes, sir.

Q. September 7, excuse me.

Going back to those events, sir, will you tell us at what point in your interview with the defendant, Mr. Frazier, did he request that you not write anything down?

A. It was when he started mentioning the High Store hold-up, after he was advised of his rights and after I had read him the arrest warrant about the robbery-hold-up that he was charged with under the warrant of Mike's Carry-Out Shop.

Q. Well, after you read to him P.D. Form 47 and after he had executed the Form 54, what was the first topic of conversation?

A. Well, I started talking to him about the Mike's Carry-Out Shop hold-up.

Q. At that point had you reached for a pad and pencil?

A. No, not at that time.

Q. Had the defendant said anything to you about refraining from taking notes at that time?

A. No, not at that time.

Q. Tell us, then, just what happened?

A. Well, it was after that. I don't know the exact conversation, but I was talking to him about Mike's Carry-Out.

He did mention something about that afternoon. And then he started saying, "Well, I don't care," something to that effect, and he started into the High's Store hold-up, where he said Teddy was involved and Teddy didn't shoot the woman; "I shot the woman."

At that time was when I did reach for the pad and started to take notes.

At that time he stated he didn't want any notes taken. He said, "Don't write anything down," something to that effect.

THE COURT: Was this before he mentioned anything about the Meridian Market?

THE WITNESS: Yes, I believe it was.

Detective Keahon testified that, in all, appellant told of several hold-ups and of one occasion on which he had shot his roommate. The woman who had been shot in the High's Store robbery was brought down to the office, and appellant reenacted the incident in such a way that he convinced her that he was her assailant and not one Teddy Moore who was being held for that robbery. A victim of one of the other robberies recounted by appellant also identified him, aided by appellant's volunteered recital of the events of that robbery.

The interview ended around 7:30 P.M. Keahon testified that appellant had been not only cooperative but coherent, with no signs of emotional disturbance or physical discomfort of any kind. At the end, as indicated by Keahon's testimony set forth in the margin, appellant rejected a suggestion that he write out, or sign a written version, of what he had said.4

Keahon was present the next morning when appellant was taken before the United States Commissioner on the Mike's Carry-Out charge. Keahon testified-and the record of that proceeding recites-that, after full advice as to his rights, appellant "stated that he wanted a hearing now-that he wanted to get it over with and that he did not want a lawyer-of own choice or Legal Aid." Commissioner Wertleb testified that his notes of that appearance showed that appellant "stated affirmatively that he did not want any lawyer."

A third police witness presented by the Government was Officer Durkey. He testified that on March 23, 1966, he had arrested appellant on a charge of assault with a gun, and that he had then both read to appellant a P.D. 47 card and given him a copy of it to keep. Aside from saying that he had not been in possession of the gun, appellant made no further response to the giving of these warnings.

The Government's first witness at the remand hearing was Dr. Stammeyer, a clinical psychologist on the staff of St. Elizabeths. Testifying from the records compiled by St. Elizabeths at the time appellant was committed for a mental examination on December 8, 1966, in the Mike's Carry-Out case, Dr. Stammeyer testified that appellant was "a man of at least low average native abilities," or "possibly even somewhat higher." He said that there was "no indication of any significant impairment that would significantly interfere with his perception;" and no evidence was found of "any organic brain pathology or any acute emotional problems at that time, that would significantly interfere with his intellectual functioning." The warnings in P.D. 47 were read to the witness, and he stated his opinion to be that appellant unquestionably "could understand and appreciate and comprehend" their meaning.

On cross-examination, Dr. Stammeyer reported that, although he had agreed with the St. Elizabeths finding that appellant was competent to stand trial, he personally had not shared the view that appellant was without mental disorder. He characterized that disorder as a passive aggressive personality, contributed to by an unsatisfactory life pattern, perhaps due in some part to recurrent medical problems, including sickle cell anemia. Although pressed closely by defense counsel in the light of these disclosures to modify his earlier opinion as to appellant's ability to understand the warnings given him, Dr. Stammeyer's final conclusion was that "on the basis of what I know about this man, my reviewing the psychological examination and going over the record and having participated in the staff conference, I see no reason to believe that he could not fully comprehend, did not have the capability and competency to fully comprehend that statement read to him."

The defense offered no evidence at the remand hearing. Appellant's counsel stated on the record that he would place appellant on the stand if the inquiry could be limited to "what his mental attitude was at the time of the alleged confession and not go into the elements of the confession or the elements of the crime." The court indicated its doubt that such matters would be relevant in any event, but, even if they came out, the court represented its understanding of the law to be that such testimony could never be used against appellant in a trial of guilt or innocence. Although defense counsel appeared to accept this representation, after consulting with his client he reported that appellant did not desire to testify.

The District Court found as facts that appellant had adequately and repeatedly been exposed to the requisite Miranda warnings; he was not under the influence of alcohol or narcotics at the time of his arrest; the noise level in the Robbery Squad room was not such as to interfere with his capacity to hear; the warnings unmistakably gave notice that what one says, as distinct from what one writes or signs, can and will be used in court; appellant's mental abilities were such as to enable him to comprehend this meaning; and appellant was in no way subjected to involuntary or forced extraction of evidence.

The court characterized appellant's admissions as having "gushed out . . . after numerous warnings, apparently starting with an effort by [appellant] to clear a friend of his from a crime that . . . he committed and his friend had not, and then continued to these other crimes, which he, apparently, decided that once he had started, he might as well make a clean breast of." Under these circumstances, concluded the court, there could be no question of the knowing and intentional nature of appellant's purpose to forego rights available to him.

In the panel opinion ordering remand, it was said (at p. 1169 of 419 F.2d):

". . . Appellant's ban on notetaking inveighs against intelligent waiver, but this inference might be overcome, for example, if Sergeant Keahon admonished him that even an oral confession would be used against him, and appellant replied that he knew that but still did not want anything written down. Absent some additional evidence, comparable in quality, of understanding waiver, however, his confession cannot stand . . ." (Emphasis supplied.)

In his oral argument to the court for reversal at the close of the remand hearing, appellant's counsel contented himself with simply saying that, since there was no evidence adduced that Keahon had supplemented the written warnings in the manner referred to by the panel, the Government had "failed to carry the heavy burden the Court of Appeals has placed on its shoulders. . . ."5

The burden which the Government had to carry on remand was, however, one that was placed upon it by the Supreme Court in Miranda, and not by this court. As the Supreme Court put it, an arrested person must be adequately apprised that "anything said can and will be used against the individual in court." 384 U.S. at 469, 86 S.Ct. at 1625, 16 L. Ed. 2d 694. And the Government's burden of proof includes, in addition to the fact of such a warning a showing-if the issue is raised-that the person warned was capable of understanding it.

There was no question in this case as to the fact of warning. The concern which prompted the panel to remand was capacity-the state of appellant's mind and understanding with respect to the terms of the warning. Its opinion indicated that there should be further evidence taken which would shed light on this question; and we, unlike appellant, do not read that opinion as saying that, unless Detective Keahon testified that he had elaborated on the language of the formal warnings by putting a legal gloss upon it, the Government must fail no matter what other evidence was forthcoming.

At the remand hearing, the Government addressed itself to this task. Its principal witness in this regard was Dr. Stammeyer, who testified as an expert witness on the precise question of whether appellant had the capacity to understand the meaning of the warnings as given. That testimony was unrebutted, and the District Court surely committed no error in finding from it that appellant possessed such capacity. But even where capacity exists, it is sometimes true that understanding can be faulty or mistaken. Although fully able to understand the plain words of the warning, it may have been that appellant, through some quirk of misinformation or otherwise, did not take them at their face value.

On this issue, of course, there was only one witness who could be useful-and this was appellant himself. It seems most unlikely that any member of the remanding panel thought other than that appellant would be a critically important witness on the remand hearing. In its opinion the panel majority was at some pains to remark that "[A]ppellant, of course, may wish to testify at that hearing," adding citations of Simmons v. United States, 390 U.S. 377, 389-394, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), and Bailey v. United States, 128 U.S. App.D.C. 354, 389 F.2d 305 (1967), for the obvious purpose of reassuring appellant that nothing he said in that testimony could be used against him to prove the commission of criminal offenses.

As it turned out, appellant chose not to testify, leaving the court with no direct evidence from appellant himself as to why he had asked that his statements not be noted down. Confronted with a similar situation in which an appellant failed to testify in a hearing on whether he had waived his Miranda rights after warning, United States v. Hayes, 385 F.2d 375 (1967), cert. denied, 390 U.S. 1006, 88 S. Ct. 1250, 20 L. Ed. 2d 106 (1968), the Fourth Circuit, speaking through Judge Sobeloff, said (at p. 378):

". . . [Appellant] produced no witnesses putting in question his apparent intellectual endowments. Moreover, it is noteworthy that at no stage in the proceedings has the appellant ever denied that he understood the warnings given him, and while a defendant does not have the obligation to testify himself or to offer testimony, a court cannot supply evidence that is lacking . . ."

So here, appellant has never asserted that he misunderstood or misinterpreted the words of warning.6 When given the opportunity to do so, under the protections of the remand hearing, he failed to take it. Contrarily, the evidence that was before the District Court supported a finding of his capacity to understand, as well as an absence of any coercive or confusing influences in his communications with the police. Under these circumstances, we do not see how the District Court can be faulted for its conclusion that the Government has sustained its burden of establishing a knowing and voluntary waiver.

In its consideration of the case after remand, a majority of the panel appeared to be of the view that, since Keahon failed to expand his testimony to include a statement that he had in fact explained to appellant that the legal rules governing the admissibility of evidence do not distinguish between oral and written confessions, there was, within the meaning of the remand opinion, no "additional evidence" relevant to waiver forthcoming. Further, the majority appears to have concluded that, absent such testimony, an element of coerciveness or at least unfair treatment by the police has entered the picture.

We think, contrarily, that Dr. Stammeyer's testimony was a highly significant and obviously relevant piece of "additional evidence," basing as it did a finding that appellant had the capacity to comprehend the warnings as they were given to him. That finding, certainly in the absence of testimony from appellant, remits to sheer speculation the reason why appellant spoke as he did with relation to note-taking. We do not think the District Court was required to speculate about it, nor do we. What is clear is that the interpretation which the panel majority insists in placing upon it is simply one of several speculative hypotheses which might be indulged in, by no means all of which are incompatible with a legally sufficient waiver.7

Neither do we think that this conviction should be reversed on any theory that appellant was so shabbily dealt with by the police that emanations from the Due Process Clause point towards that result. It appears clearly from the record that appellant had already confessed his most serious crime (the armed robbery of a High's Store in which he shot a female employee) before the note-taking episode occurred. From Detective Keahon's standpoint, the procession of admissions which began to follow were of primary interest as clearing the police records, but of secondary importance in terms of appellant's having voluntarily put himself in the toils of the law. Keahon's purpose in reaching for pencil and paper was, as he testified, simply to keep track of what was pouring from appellant's mouth on the heels of the High's Store confession. Had the interview been stopped when appellant objected to the note-taking, the utility of that confession would not have been affected. Thus, it does not seem to us that there can be any suggestion that Keahon was deliberately luring appellant into the deeper and more dangerous waters of criminal admissions. Appellant had already taken that plunge.

Moreover, we remind that one of the purposes of Miranda was to introduce into the post-arrest period more regularized procedures, eliminating the high degree of informality and variability which contributed heavily to the evils of stationhouse interrogation. Witness the care with which the Supreme Court spelled out the precise character of the words of warning to be given, and the wide extent to which law enforcement authorities have embodied such warnings in haec verba on printed cards to be used by arresting officers. We doubt that the warmest friends of Miranda wish to see a return to the days when such officers, although not lawyers themselves, were free with legal advice to their prisoners.

It was not for Keahon to place a legal interpretation on the language of Miranda warnings he was directed to give, and to continue or to suspend the interview in accordance with what that interpretation might be. He had given the warnings as required; appellant had signified his understanding and his wish to talk without a lawyer present; appellant had indeed already confessed a most serious crime before he objected to Keahon's starting to take notes. We cannot see how, under these circumstances, Keahon's allowing appellant to pursue his evident desire to keep on talking was either an unreasonable or deceptive tactic on Keahon's part, falling short of those concepts of ordered liberty which are at the core of the concept of due process.

Wise administration of the waiver of the Miranda rule is, of course, of central importance to the continued health of the rule itself, which was promulgated upon the explicit premise that it could be validly waived.8 When the police have, as here, faithfully followed the exact procedure prescribed by the Supreme Court, inferior courts should be slow to mandate, after the fact, enlarged responsibilities alien to the duties and the training of policemen. In any event, we see no basis in the record before us for overturning the District Court's resolution of the issue entrusted to it upon remand.

Affirmed.

I dissent from the decision of the court today because it seems to me manifestly in error, but I am also concerned about the circumstances under which this decision has been rendered.

* At issue in this case is the admissibility of certain statements made by Frazier during the course of police interrogation. It is undisputed that Frazier was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prior to the onset of the interrogation. And it is also agreed that he signed a written statement waiving the protection of those rights. But as soon as the interrogating officer attempted to take written notes on Frazier's statements, Frazier refused to continue. However, when the officer ceased making contemporaneous notes, Frazier did make further statements. The confession at issue here was made during the latter period and involved a crime not discussed before the notetaking incident. The question in this case is whether, on the unusual facts presented, the government met its "heavy burden" of proving that the waiver was knowing and intelligent.

When the case first reached this court, a panel concluded that Frazier's unwillingness to have his statements recorded in writing may have signalled a mistaken assumption on his part that only written statements could be used against him. Frazier v. United States, 136 U.S.App.D.C. 180, 419 F.2d 1161 (1969). We therefore remanded the case to the trial court to afford the government an opportunity to meet its burden of showing a knowing and intelligent waiver by demonstrating, for example, that Frazier had been admonished that "even an oral confession would be used against him and [that he] replied that he knew that but still did not want anything written down." However, on remand, the police interrogator stated why he did not admonish Frazier:

"I didn't want to start arguing with [appellant] as long as he was talking about hold-ups. . . . [H]e was telling me things about hold-ups that I didn't know. I didn't want to stop him. So, as soon as he said, 'Don't write,' I stopped writing and pushed the pad away."

Thus the interrogator, with commendable candor, made absolutely clear that because he was aware of the appellant's misunderstanding he elected not to risk any clarification for fear appellant would stop talking. Moreover, it is of critical importance that the trial court's findings did not indicate the court had even considered the significance of Frazier's ban on notetaking. Accordingly, when the case returned to this court for the second time, we held that the government had not met its burden of proving that Frazier's statements were the product of a knowing and intelligent waiver, and we held the statements inadmissible.1 It is that decision which has now been overturned by the court en banc.

The purpose of the Miranda warnings is to convey information to the suspect. Plainly, one who is told something he does not understand is no better off than one who is told nothing at all. Without full understanding, the warnings are simply a "preliminary ritual."2 The majority today concedes that Frazier may not have understood the warnings before he made his confession. But the court finds, nonetheless, that the government can meet its burden-and has met it here-by offering proof that the warnings have been given and by making "a showing-if the issue is raised-that the person warned was capable of understanding" the warnings. Majority opinion at 896 supra.

Of course, the problem posed by this case would not exist if the warnings were so clear that no one possessing even minimal intelligence could possibly misunderstand them. But capacity to understand the warnings does not by any means guarantee that they will actually be understood. The available empirical evidence clearly indicates that many, if not most, defendants do not understand the warnings,3 even where the defendants are intelligent and well educated.4 The likelihood of understanding is necessarily reduced where, as here, the 28-year old defendant has been afflicted with sickle cell anemia for many years and used narcotic drugs to mitigate his pain.5

That is not to say, however, that Miranda requires an inquiry in every case into the special capacity to understand the warnings. If that were the case, the government could validly contend that the panel decision "forces the police to become mind-readers and then blames them if they guess wrong." In fact, the government's contention rests on a complete misunderstanding of the panel opinion.

Miranda was designed as a prophylactic rule for the precise purpose of avoiding the morass into which the courts had previously slipped by attempting to judge, after the fact,-and from the inevitable swearing contest between the police and the accused as to what transpired6-the precise subjective state of mind of every defendant whose confession was challenged as involuntary. In the usual case a written waiver obtained without coercion after a full and accurate explanation of the meaning of the rights and the consequences of waiving them is sufficient to meet the government's burden regardless of any subsequent claim that the suspect did not understand what he was told. But where, at the time of the interrogation, the suspect says or does something sufficient to put a reasonable man on notice that the warnings may not have been understood even though a waiver was signed, the interrogation must stop until the matter has been clarified or all statements elicited thereafter will be inadmissible. The panel concluded that a reasonable police officer would have determined on the basis of Frazier's objective behavior that he may not have grasped the meaning of the warnings. Far from requiring the police officer to read Frazier's mind, our earlier decision required only that the officer clear up a possible misunderstanding that would have been apparent to any reasonable observer-as it was to the police interrogator here.

That the court should today carve out a highly damaging exception to a fundamental principle of Miranda is disquieting enough. But the court's en banc decision here is disturbing in another regard. The panel decision in this case occasioned substantial, hostile comment in the news media. Plainly, widespread criticism of a decision is neither a cause for alarm nor a reason to insulate the decision from re-examination. What makes this case exceptional is that the nation's highest law enforcement officer, the then Attorney General, saw fit to lash out publicly at the panel decision while the government's petition for rehearing en banc was pending before the court.7 In a speech delivered to the National District Attorneys Association, the Attorney General singled it out as "Case No. 1" in his explanation of what he unfortunately sees as the "public's los[§ of] confidence in the ability of the courts to dispense justice." I had understood that the Department of Justice's professed policy was, wisely, to refrain from comment on pending cases and to make its argument in court.8 The Attorney General's deviation from that sensible rule clearly endangers the integrity of the judicial process.

In an appeal from a contempt conviction of a defense counsel for his public comments on a pending case, Mr. Justice Frankfurter issued the following warning:

If the prosecutor in this case had felt hampered by some of the rulings of the trial judge, and had assailed the judge for such rulings at a mass meeting, and a conviction had followed, . . . is it thinkable that this Court would have found that such conduct by the prosecutor was a constitutionally protected exercise of his freedom of speech, or, indeed, would have allowed the conviction to stand?

******

* * *

The delicate scales of justice ought not to be willfully agitated from without by any of the participants responsible for the fair conduct of the trial.9

Circuit Judges J. SKELLY WRIGHT and SPOTTSWOOD W. ROBINSON, III, concur in Part I of this dissent and in the panel's majority opinion attached hereto as an appendix.

Opinions issued February 24, 1971, and vacated on September 24, 1971, by the Court en banc:

Before BAZELON, Chief Judge, and ROBINSON, Circuit Judge, and NICHOLS,* Judge, United States Court of Claims.

The sole question before us is the admissibility of certain statements made by appellant Frazier to a police interrogator.1 In an earlier appeal,2 we found strong indications in the record that appellant did not "knowingly and intelligently" waive his constitutional privilege against self-incrimination, and consequently that his statements were inadmissible under Miranda v. Arizona.3 Appellant had initially agreed to speak to the police interrogator, but he refused to continue if the officer took written notes. This refusal, we said, "inveighs against intelligent waiver," but we remanded for a hearing specifically to afford the Government an opportunity to present evidence that the waiver was valid. On remand, the District Judge found a valid waiver, but we disagree. We think it plain that the Government did not discharge the "heavy burden" imposed by Miranda of establishing that appellant knowingly and intelligently waived his fifth Amendment rights.

* At the remand hearing the Government introduced evidence showing the following facts.4 Appellant was arrested about 4:15 on the afternoon of September 7, 1966, on a warrant for the robbery of Mike's Carry Out. Appellant was advised of his rights,5 and taken to the Robbery Squad office, arriving, after processing, at about 5:20 p. m.

Detective Sergeant Keahon read the Miranda warnings to appellant6 and gave him a copy of the warnings, which he read. The Sergeant then read to appellant a "Consent to Speak" form,7 which appellant read and signed at 5:30 p. m. Appellant, a man of at least low average mentality, told the officer that he understood his rights and that he did not want a lawyer. He was not distracted in any way while being given the warnings.

Sergeant Keahon then started to ask appellant about the Mike's Carry Out robbery, but appellant interrupted him to admit a robbery and shooting at High's Market. According to the Sergeant, appellant said he was admitting this crime in order to clear another person who had already been charged with it. The officer reached for a pad and pencil to transcribe the confession. Appellant, however, said: "Don't write anything down. I will tell you about this but I don't want you to write anything down." Sergeant Keahon put down the pad and said nothing. Appellant continued his description of the High's Market episode, touched briefly on another crime, and then, about five minutes after he had barred transcription of his statements, admitted the Meridian Market robbery, the crime which underlies this conviction. A little while later appellant re-enacted the High's Market robbery for the benefit of several witnesses who were unable to identify him by sight. The questioning ended at about 7:30 p. m. when appellant said: "That's it; that's all I know and that's all I am going to tell you." Sergeant Keahon then asked appellant to write out a statement himself or to sign a typewritten summary of his confession. Appellant refused, saying: "No, I'm not going to sign anything." He was then taken to his cell. Throughout the entire investigation appellant cooperated with the police and was treated with courtesy by them.

The trial court concluded that the Government carried its "heavy burden" of establishing that appellant validly waived his privilege against self-incrimination. Since that conclusion was based on the uncontroverted facts in the record, and not on an assessment of the credibility of witnesses, it is settled that we are in as good a position as the District Judge to determine the effect of that evidence.8 It is highly significant in this connection that the District Judge gave no express consideration to the effect of appellant's refusal to permit his statements to be reduced to writing, despite our emphasis on the point in our prior opinion. In our view, the evidence introduced by the Government cannot support the conclusion that appellant knowingly and intelligently waived his Fifth Amendment rights.

Miranda teaches that after the warnings have been given, "the accused is entitled to the assistance of counsel before he is questioned and, in effect, that any confession he makes while in exclusive police custody prior to arraignment is presumptively inadmissible . . . ."9 When the police continue to question a suspect in the absence of counsel a confession "can stand if, but only if, the accused affirmatively and understandingly waives his rights."10 In order for a waiver to be effective, the accused must realize the consequences of his act-in particular he must understand that anything he says can and will be used against him in court. "It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege."11 Furthermore, "a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination."12 A determination whether the accused made a valid waiver requires the court to examine "the particular facts and circumstances surrounding [the] case,"13

We said in the prior appeal that appellant's ban on note-taking creates "[t]he strong implication . . . that appellant thought his confession could not be used against him so long as nothing was committed to writing."14 We said that this implication

might be overcome, for example, [by evidence that] Sergeant Keahon admonished [appellant] that even an oral confession would be used against him, and [that] appellant replied that he knew that but still did not want anything written down.15

Absent some additional evidence, comparable in quality, of understanding waiver, however, his confession cannot stand.

No such evidence was forthcoming. The record makes it crystal clear that the officers failed to correct appellant's apparent misunderstanding-by explaining to him that an oral confession was as damaging as a written one-because they were afraid he would stop talking.17 Sergeant Keahon stated with commendable candor that

I didn't want to start arguing with [appellant] as long as he was talking about hold-ups. . . . [H]e was telling me things about hold-ups that I didn't know. I didn't want to stop him. So, as soon as he said, "Don't write," I stopped writing and pushed the pad away.

The Government says that it discharged its "heavy burden" by evidence that appellant was not interrogated in an oppressive manner nor subjected to physical or psychological coercion; and that he was given the warnings several times, said he understood them, and had sufficient mental capacity to understand them. Absent appellant's ban on notetaking "[t]here [would indeed be] nothing in the surrounding circumstances peculiarly susceptible to the interpretation that appellant misapprehended what the officers said he was told."18 But appellant attached a peculiar condition to his consent to speak, a condition that should have alerted the officers to the possibility of a misunderstanding. He may well have thought that the Government could make no use of an oral statement in court, and there is no evidence that he was otherwise informed by the officers, by prior experience,19 by education, or otherwise.

The Government contends that appellant's ban on note-taking does not necessarily mean that appellant failed to understand the consequences of an oral confession. Appellant, says the Government, "may have reasoned that if he ever decided to recant his decision to talk, he could . . . deny he said anything [,] and it would then be his word against that of the police [in court]."20 At best, however, this speculation fits the facts only as well as any number of conceivable explanations. For example, appellant might have thought that by barring transcription of his statements he could clear a friend who had been charged with a crime21 while at the same time preventing the police from using his confession against him. In any event, this sort of speculation cannot meet the Government's burden-established by ruling case law as well as the law of this case as set down on the prior appeal-of rebutting with affirmative and convincing evidence the inference that appellant did not validly waive his Fifth Amendment privilege.22

The plain rule of Miranda requires us to reverse this conviction. The Supreme Court has often stated that a waiver of the right against self-incrimination is ineffective if there is any doubt that it was made with full understanding of the consequences.23 Since there is ample reason to doubt appellant's understanding here, it was improper for the police officers to receive his statement, and error for the trial court to admit it.

It is not our role to question the plain teaching of Miranda. But were we to do so, we would be compelled to conclude that the Miranda rule reflects a principle fundamental to a democratic society. The Fifth Amendment protects all persons; it ensures that no individual need incriminate himself "unless he chooses to speak in the unfettered exercise of his own will."24 Miranda is designed to make that protection meaningful for the man who has neither the education, the experience, nor the counsel that would enable him to make an informed decision. Far from being a mere technicality, it touches the heart of a system of justice that purports to treat all of its citizens equally under the law.

If we were to uphold this confession, then Miranda would indeed become "a preliminary ritual."25 For the forms of Miranda were satisfied here: the officer read the warnings, and the suspect purported to waive his rights. But Miranda requires more of the interrogating officers. It requires them not only to recite the warnings, but also to be certain before questioning the accused that he understands his rights, realizes the consequences of speaking, and intelligently and voluntarily waives his privilege of silence.26 Where the police officers are dealing with ill-educated and uncounselled suspects, they have a special obligation to be alert for signs of misunderstanding or confusion. Here the officers had ample reason to doubt that the accused understood the warnings. Yet they took no further steps-such as admonishing appellant that even an oral confession would be used against him in court, or halting the questioning until a lawyer could be obtained-to bring the warnings home to him in terms he could clearly comprehend.

We recognize that we are vulnerable to the old criticism that criminals should not go free for the constable's blunder.27 But the error involved in this case is no ordinary blunder. It is an egregious failure to observe a basic constitutional requirement. When we are ready to overlook errors of this type, we will have abandoned once and for all the effort to extend the same quality of justice to all persons, the ignorant as well as the educated, the poor as well as the rich.

Reversed.