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By a 5-4 vote (with a spirited dissent led by new Justice Sotomayer), the Supreme Court in Berghuis v. Thompkins, (Supreme Court #08-1470, decision filed 6/2/10) ruled that if a suspect wishes to invoke his constitutional right to remain silent, he must say so.  It is not enough to merely stay silent.  This rule apparently pertains no matter how long the interrogation lasts, and any response the suspect finally makes will be understood as a waiver of the right to remain silent, and the statement can be used.

So when the police give the Miranda warning advising that a suspect “has the right to remain silent,” it ain’t necessarily so.  You got to speak up.

Of course the decision raises as many questions as it answers and legal commentators and scholars, both conservative and liberal, have voiced their displeasure with this seeming illogical decision.  One Yale law professor, clearly in the conservative camp, has noted that the inequities in the decision will fall heaviest on those who are least experienced or least educated.  Being steadfastly silent after being told of one’s right to do so won’t be enough.  You’ll have to know and be aware of the need to be clear and explicit about the waiver.  The more educated and those recidivist criminals who know how to gain the system should have no trouble at all with the new rule.  They know how to invoke their rights.

Predictably, law enforcement is pleased with the decision.  Essentially, police now have carte blanche to continue interrogation with an uncooperative or non-responsive suspect conceivably without limitation.  Given past law enforcement dissatisfaction with the Miranda rules requiring cessation of interrogation upon a clear invocation of the right to remain silent (and the number of documented cases in which police have simply disregarded the invocation no matter how clearly stated), clearly this decision tilts the entire body of Miranda-based law to the law enforcement end of the spectrum.

The case facts are interesting.  Thompkins was a suspect in a 2000 shooting in Michigan.  He was advised of his rights, asked to read part of the list of rights out loud to make sure he understood English, but he refused to sign the form indicating he understood the rights.  Thereafter he was interrogated for three hours and refused to answer questions.  Eventually one officer asked:  “Do you pray to God to forgive you for shooting that boy down?”  Thompkins said, “Yes.”  He refused any further answers and a written confession.  His one-word answer was essentially argued as a confession to the crime and he was convicted.  The court found that the one-word answer was an indication that Thompkins was “surrendering the right to silence.”  “If Thompkins wanted to remain silent, he could have said nothing in response to [the detective’s] questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation,” Justice Kennedy wrote.  The court also held that the rule requiring clear unambiguous request for counsel (as laid out in the 1994 ruling in Davis v. U.S.) should also be applied to the claim of the right to remain silent under Miranda.

In her dissent, Justice Sotomayer forcefully argued that the waiver ruling ran counter to decades of the court’s precedents, which made clear how heavy a burden prosecutors face when trying to convince a court that a suspect had given up his right to silence.

To what extent this will actually change police procedure is yet to be determined.  If one thing is clear, this area of the law will continue to generate more and more appellate activity for criminal defense attorneys and prosecutors.  Interestingly enough, many police manuals now in effect have actually required more than the court would require in its new decisions.  Many instruct police that they should not do any questioning at all until they have obtained an explicit waiver of the suspect’s rights.  It is now apparently clear that this is not constitutionally required.

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