The Miranda warnings are so ingrained in our culture most kids can probably recite them by heart. One of those warnings is the right to remain silent. A suspect in custody need not talk to the police. And if a suspect who is being interrogated invokes his Miranda rights and tells the police he doesn’t want to talk to them, the questioning must stop.
What isn’t so well known is that the U.S. Supreme Court has been systematically cutting back Miranda’s protections in recent years. At the end of its term in June the high court continued this trend in Berghuis v. Thompkins. Here’s what happened.
Two men were shot outside a mall in Southfield Michigan. One died, but the other recovered and later testified. Thompkins, who was a suspect in the shootings, fled. He was arrested about a year later in Ohio. Two Michigan police offers came to Ohio to question Thompkins. What happened during this period of interrogation is what this case is all about.
Thompkins was questioned for about three hours. At the beginning of the questioning, one of the officers gave Thompkins a form containing the Miranda warnings. To make sure that Thompkins could read and that he understood English, the officer had Thompkins read the final warning out loud, which he did. The officer read the other four warnings out loud, and asked Thompkins to sign the form to show that he understood his rights. Thompkins refused. The evidence was then in conflict about whether Thompkins did or did not verbally confirm that he understood the rights listed on the form.
During the nearly three hours of questioning, Thompson said almost nothing other than an occasional “yeah” or “I don’t know”. Toward the end of the questioning, though, when one officer asked Thompkins if he believed in God, whether he prayed to God, and whether he prayed to God to forgive him for “shooting that boy down”, Thompkins answered yes to all three questions. But then Thompkins refused to make a written confession.
Thompkins was charged with first-degree murder and some related offenses. He moved to suppress the statements made during his interrogation on the grounds that he had not waived his right to remain silent, and the statements he made were in violation of that right. The trial court refused to suppress the statements. The confession he had made was allowed into evidence.
The jury convicted Thompkins. He was sentenced to life in prison without parole. On appeal, the U.S. Court of Appeals for the Sixth Circuit, which sits in Cincinnati, reversed, finding that Thompkins’ “persistent silence” for almost three hours was a clear invocation of his right to remain silent and that he did not wish to waive that right. The U.S. Supreme Court took up the case.
All parties in the case agreed that there was nothing wrong with the initial Miranda warnings given to Thompkins. The dispute was over whether Thompkins invoked his right to remain silent, and whether he waived that right. The prosecution bears the burden of proving both. A sharply divided 5-4 Court (Justice Stevens sat on this case which was released before his retirement) found that there were no Miranda violations in this case. Justice Anthony Kennedy wrote the majority opinion.
The Court first found that an accused who wants to invoke the right to remain silent must do so unambiguously and unequivocally. The police should not have to infer the invocation of this right from the fact that the suspect being questioned does not answer any questions. At no time did Thompkins say he wanted to remain silent or that he did not want to talk to the police, so the Court found that he had not invoked the right to remain silent. In other words, simply remaining silent during questioning does not invoke the right to remain silent.
But even if an accused does not invoke the right to remain silent, the prosecution must still prove that the accused knowingly and voluntarily waived his Miranda rights when making the incriminating statements. Voluntary means free from coercion. Knowing means made with full awareness of the nature of the right and the consequences of giving up that right.
Justice Kennedy conceded that there is language in the original Miranda decision which could be read “to indicate waivers are difficult to establish absent an explicit written waiver or a formal express oral statement.” Still, the Court held that the waiver need not be express, but could be implied. So when the Miranda warnings have been given and understood, and the accused makes an uncoerced statement, an implied waiver of the right to remain silent is established. Kennedy wrote that “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.” Thompkins knew what he was giving up when he spoke. And there was no evidence that he was coerced.
Justice Sonia Sotomayor wrote the dissent in the case—considered by many to be her most significant since joining the Court. In her view the majority decision literally turns Miranda on its head—in order to invoke the right to remain silent, the accused must speak. And she also disagrees with the majority that a suspect who utters a few one word responses after sitting silently for nearly three hours of questioning has waived the right to remain silent. She thinks past precedent of the Court has established that a waiver cannot be presumed from a suspect’s silence or from the fact that a confession was eventually obtained later. Time and again in her dissent she talks of the heavy burden on the prosecution to prove a knowing and intelligent waiver of the right to remain silent.
“Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which counterintuitively requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so…Today’s decision bodes poorly for the fundamental principles that Miranda protects,” Sotomoyor wrote. She was joined in dissent by Justices Ginsburg, Breyer, and Stevens.