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.

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.