Supreme Court: Silence Is Not Sufficient to Invoke Miranda

If you want to invoke your right to remain silent, you better first say so.

I posted a comment recently about Berghuis v. Thompkins, which was then pending argument in the Supreme Court.  Today the Court released its opinion in the case.

[I won't get into the facts of the case here.  Check the above link to my previous post which outlines the factual and procedural issues.]

In a predictable 5-4 split, the Court found that mere silence is not enough to invoke your right to . . . remain silent.  Justice Kennedy wrote the majority opinion, finding "there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel . . . ."  Essentially, the Court adopts the Davis standard for right-to-remain-silent cases, which means that a suspect must invoke the right "unambiguously."  Well, what about the fact that we're talking about the right to remain silent?  While it is certainly understandable that the Court likes bright-line tests when dealing with Miranda and the Fourth Amendment, it seems quite odd to suggest that it is ambiguous for a suspect to invoke the right to remain silent by doing exactly what the right allows -- that is, remain silent.

Justice Sotomayor dissented, joined by Justices Ginsburg, Breyer, and Stevens.  Interestingly, the Justice Sotomayor wrote that she would not reach the issue of whether Thompkins had indeed invoked his right to remain silent.  Instead, she wrote, she would have disposed of the case based on a finding that the State could not demonstrate that Thompkins had waived his right initially.  [This case actually involves 2 separate Miranda issues -- invocation and waiver.  I will write about the waiver issue separately.]  But, she continued, she could not agree "with the Court's much broader ruling that a suspect must clearly invoke his right to remain silent by speaking."  To me, this is a very succinct and accurate way of posing the issue of Miranda invocation in this case.

It looks like the Court has decided that, to turn a baseball phrase, the tie goes to the pitcher.  The default presumption is now that a suspect has not invoked his right to remain silent if he decides to do just that.  Instead, he must actually say something and clearly invoke the right.

This new rule will make South Carolina criminal defense attorneys (and those nationwide) take a more careful look at their clients' statements to police and determine whether a suppression hearing is appropriate, as well as gauge the likelihood of success on the suppression motion.  I guess now it's not good practice to tell your clients to just keep their mouth shut if they're arrested -- they need to say something first.