No Slack for Flack: Context, Clarity, and Pleading The 5th through an Aggregate of Statements in Kansas

State v. Flack, No. 115,964, 2024 Kan. LEXIS 6 (Jan. 19, 2024).

Ben Murphy, Staff Editor

Issue: Can a defendant invoke his right to remain silent by repeating “take me to jail” and similar statements?

Answer: No.  Contingent upon the context surrounding the statement, the 5th Amendment of the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights require an unambiguous and unequivocal request to properly invoke the right to remain silent.

Facts: Kyle Flack is on death row after a jury convicted him of multiple charges including capital murder.  In 2013, law enforcement arrested Flack, read his Miranda rights, and interviewed him.  Flack made ten separate “take me to jail” and similar statements throughout two interviews.  The district court admitted all of Flack’s statements from the interviews.  On appeal to the Kansas Supreme Court, Flack argued his aggregated “take me to jail” statements invoked his right to remain silent.  The Kansas Supreme Court held that none of Flack’s statements—together or apart—unambiguously and unequivocally invoked his right to remain silent.  Justice Wilson dissented.

Discussion: The Kansas Supreme Court evaluated Flack’s alleged invocation of his right to remain silent under the Fifth Amendment and Section 10 of the Kansas Constitution Bill of Rights.  The court emphasized the importance of context, “as ‘an invocation that is ambiguous by itself may be unambiguous when considered in conjunction with the statements or events proceeding it.’”[1]  The Court reasoned that Flack’s statements, within context, were susceptible to different reasonable interpretations—including that Flack only made them because he believed the interviewers had made up their minds about his involvement in the case and further questioning was irrelevant.  The court concluded that Flack did not invoke his right to remain silent because of his prior interview experience, the clear delivery of his Miranda rights, and because his statements could reasonably lead to multiple interpretations.

Justice Wilson dissented, determining Flack’s last four “take me to jail” statements unambiguously invoked his right to remain silent; if Flack meant anything other than to terminate the interview, he would have accompanied the isolated phrases in response to the varied questions with additional language.

Key Authorities: U.S. Const. amend. V; Kan. Const. Bill of Rights § 10; State v. Aguirre, 349 P.3d 1245 (2015); United States v. Cordier, 224 F. Supp. 3d 835, 840 (D.S.D. 2016).


[1] United States v. Cordier, 224 F. Supp. 3d 835, 840 (D.S.D. 2016) (relying on Smith v. Illinois, 469 U.S. 91 (1984)).

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