Can Silence Constitute a Valid Waiver of Your Right to Remain Silent?

Today the Supreme Court of the United States will hear argument in Berghuis v. Thompkins, reviewing an important Sixth Circuit decision relating to Miranda.  The main issue in Thompkins is

 "Whether the Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them."

The defendant, Thompkins, was arrested on suspicion of murder.  He was verbally advised of his Miranda rights, but he refused to sign a written acknowledgment of his rights.  After three hours of interrogation, during which Thompkins continued to exercise his constitutional right to remain silent, one of the interrogating officers decided to take a "spiritual tack" and asked Thompkins if he had sought God's forgiveness for the murder.  At that point, Thompkins broke down in tears and responded, "Yes."

Of course, Thompkins's lawyer argued to suppress his statement, but the motion was denied by the trial court.  His appeal was denied by the Michigan Court of Appeals, and the Michigan Supreme Court declined to review his case.  Thompkins then filed for habeas relief in federal district court, was denied, and appealed to the Sixth Circuit.  The Sixth Circuit, however, found in Thompkins's favor, reversing the Eastern District of Michigan and setting up today's showdown in Washington.

It appears the essential question boils down to what should be the default presumption regarding a Miranda waiver where the suspect understands his rights, but neither explicitly invokes nor waives them.  Should the courts consider it a valid waiver if the suspect then begins to talk?  If so, how long is too long?  Thompkins didn't start talking until about 3 hours into the interrogation, which was admittedly one-sided.  Would it be different if he started talking within 30 minutes?  What about 5 hours?

Since the question of whether a suspect has validly waived his Fifth Amendment right to remain silent under Miranda is always an extremely important pretrial matter, South Carolina criminal defense attorneys should await the Court's decision with some interest.  If the Court affirms the Sixth Circuit, then defense attorneys may have a new avenue through which to attack confessions at suppression hearings.

A synopsis of the case and supporting briefs, including amici curiae, are available from SCOTUSWiki.