Berghuis v. Thompkins

Under U.S. law and with rare exceptions,[note 1] people (whether criminal suspects or defendants or not) have the right to remain silent as part of their right not to incriminate themselves under the Fifth Amendment to the United States Constitution. Remaining silent is optional—they may speak or be silent as they wish. The Miranda warning concerns the duty of the police or other formal questioners to make sure that the suspect is aware they have that right prior to questioning, in case they want to be silent at some point or the suspect later pleads ignorance that they had the right (and would have relied upon it had they been aware). Miranda v. Arizona 384 U.S. 436 (1966) and related cases contemplate that a suspect might invoke their rights (make clear they wish to rely on them), waive their rights (make clear they do not wish to rely on them), or do neither of these. A number of cases such as the present one, refine Miranda by addressing when and at what point a suspect, who is aware that they have the right to remain silent, is said to have begun to rely on that right, as opposed to when they were aware of the right but were not choosing to rely on it.

Van Chester Thompkins was considered a suspect in a fatal shooting on January 10, 2000 in Southfield, Michigan. After advising Thompkins of his Miranda rights, police officers interrogated him. Thompkins did not state at any time that he wanted to rely on his right to remain silent, nor that he did not want to talk to the police, nor that he wanted an attorney. The court record suggested that he had been almost completely silent during the three-hour interrogation and the few sporadic comments he made had no bearing on the case[4] (police described it as "nearly a monologue"[5]), but near the end, detectives changed their approach and "tried a spiritual tac[k]" [6] and an "appeal to his conscience and religious beliefs".[7] Thompkins was asked in sequence—did he believe in God, did he pray to God, and did he pray to God to forgive him for shooting the victim. He answered "yes" to each of these.[1][2] Thompkins made a motion to suppress his statements, claiming that he had invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his inculpatory statements were involuntary. The trial court denied his motion and Thompkins was found guilty by a jury and sentenced to life imprisonment without the possibility of parole. Of note, there had been significant other evidence of guilt corroborating the conviction.[8]

Thompkins appealed his conviction on grounds that included suppression of his admission—that he had invoked and not waived his right to remain silent—and deficient representation related to improper jury instructions, but the Michigan Court of Appeals rejected Thompkins' Miranda claim. Thompkins then filed a writ of habeas corpus in federal District Court but it denied his request. However, the United States Court of Appeals for the Sixth Circuit reversed the District Court's decision, holding that the state court was unreasonable in finding an implied waiver of Thompkins' right to remain silent.

The state's petition to the Supreme Court advanced a number of reasons to hold that extended silence should not be construed as an invocation, and asserted that the interview in the present case had not been coercive.

Although the right of silence, in contrast to the right to counsel, can be exercised passively (by not speaking), a suspect's initial reticence does not inherently convey to a reasonable police officer that the suspect wishes to exercise a right to silence and terminate the interview. A suspect may want to listen to a recitation of the evidence against him or learn about the benefits of cooperation before deciding whether to exercise his rights. Or a suspect may be formulating an explanation of events that lessens his culpability, planning an alibi, or thinking through his options. Or he may be willing to talk about some topics but not others[9] ... Simply presuming an invocation after some initial period of silence ... would override the wishes of those suspects who wanted to listen and deliberate further, rather than to end questioning. ... Once a suspect has been provided with the requisite warnings and has had an opportunity to invoke his rights, the primary purposes of Miranda are fulfilled. This Court has described "a person's right to cut off questioning" as "[t]he critical safeguard"[10] provided by the Miranda warnings.[11]

The police did not aggressively and relentlessly question respondent... The three-hour time period is similar to those the courts of appeals have found acceptable, and does not begin to approach the lengthy interrogations that this Court has disapproved.[12]

The Court reasoned as follows on Thompkins' various arguments:[1]

There was no good reason why the standard for invoking the Miranda right to remain silent and the Miranda right to counsel should differ.[14] "Both protect... against compulsory self-incrimination... by requiring an interrogation to cease when either right is invoked".[15] Making either of these statements would have ended the questions but the accused made neither of them.[16]

The court further considered whether invocation of Miranda rights could be implied from the behavior or ambiguous words of the accused. It concluded (in line with previous cases such as Davis v. United States[17]) that there was good reason why invoking these rights should require an unambiguous act of the accused, including certainty for police, prosecutors, and accused,[17] and social benefit in law enforcement.

The court then considered whether the accused had taken action that waived those rights. Waiver must be a free choice with full awareness (Moran v. Burbine).[18] Miranda v. Arizona (the Miranda ruling) states that "[A] heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel."[19] It was noted that the accused had read and expressed understanding of the rights, and had them read aloud, he had not pleaded lack of understanding, was given time, and therefore knew his rights. Specifically, having read the 5th warning ("you have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned") he was aware this right was enduring and could be applied at any time in the questioning if he chose, and the police would have to honor the invocation if he did so.[20] The court observed that "[p]olice are not required to rewarn suspects from time to time". That a question is linked to religious beliefs does not cause the reply to be "involuntary". The accused, understanding his rights and that they were capable of invocation at any point, had not chosen to invoke them.

This is ignoring the fact that the question asked was a loaded question and the defendant would have been indicted in either case according to the traditional logic and rhetoric of legal interrogation.

The case of North Carolina v. Butler 441 U.S. 369 (1979) [21] showed that a waiver of Miranda rights may be implied through "the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver". The court held that where a Miranda warning had been given and was understood by the accused, an accused's uncoerced statement established an implied waiver of the right to remain silent. Thompkins' answer to the police question, having understood but not chosen to invoke his rights, was sufficient to show a course of conduct indicating waiver. Further corroboration was that he had sporadically made other comments as well.

The court concluded that:

In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police.

Justice Sotomayor wrote the dissenting opinion.

Associate Justice Sonia Sotomayor wrote the dissenting opinion for four Justices, her first major dissenting opinion on the Court.[22] She wrote that the case represented "a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided during custodial interrogation",[2] and that "[S]uspects 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."[1]

The dissent noted that the government must satisfy the "high standar[d] of proof for the waiver of constitutional rights [set forth in] Johnson v. Zerbst".[23] It cited from Miranda that:

[A] valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained [...] the fact of lengthy interrogation... before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege.

and that Miranda and North Carolina v. Butler both agreed that:

[a] court 'must presume that a defendant did not waive his right[s]'; the prosecution bears a 'heavy burden' in attempting to demonstrate waiver; the fact of a 'lengthy interrogation' prior to obtaining statements is 'strong evidence' against a finding of valid waiver; 'mere silence' in response to questioning is 'not enough'; and waiver may not be presumed 'simply from the fact that a confession was in fact eventually obtained'.

The Court had previously observed that "while the privilege [against self-incrimination] is sometimes a shelter to the guilty, [it] is often a protection to the innocent" and that "[f]or these reasons, we have observed, a criminal law system which comes to depend on the 'confession' will, in the long run, be less reliable and more subject to abuses than a system relying on independent investigation."[24]

Although giving "sporadic" comments during the interview, no answers had been given that touched upon the case. The Court had not previously considered "whether a suspect can invoke the right to remain silent by remaining uncooperative and nearly silent for 2 hours and 45 minutes" and the dissent considered that silence throughout a lengthy interrogation "long past the point when he could be deciding whether to respond[,] cannot reasonably be understood other than as an invocation of the right to remain silent". Butler also distinguished between a "sufficient course of conduct" and mere "inculpatory statements".

The dissent concluded that the ruling was unnecessary in the changes it established, "flatly contradicts" Miranda and Butler, and that "[e]ven if Thompkins did not invoke that right, he is entitled to relief because Michigan did not satisfy its burden of establishing waiver".

This particular view as the majority gave is not new. In the case of United States v. Johnson, 76 F. Supp. 538, 540 (D. Pa. 1947), the court ruled that,

The privilege against self-incrimination is neither accorded to the passive resistant, nor the person who is ignorant of his rights, nor to one indifferent thereto. It is a fighting clause. Its benefits can be retained only by sustained combat. It cannot be claimed by attorney or solicitor. It is valid only when insisted upon by a belligerent claimant in person. ... The one who is persuaded by honeyed words or moral suasion ... rather than make a last ditch stand, simply loses the protection.

Responses to the ruling were divided with a significant number of commentators focusing upon the erosion of Miranda, and others commenting upon the impact of the case on terrorism suspect interviews—a topic where Congress had recently attempted to legislate.

Cornell Law School professor Sherry F. Colb's discussion of the decision at Findlaw.com was one of the former. She called the decision "an alarming break with the philosophy of Miranda v. Arizona [that] leaves that decision to stand as an arbitrary disclosure requirement, rather than the protection against coercive interrogation that it was originally crafted to be".[25] The author noted the purpose of Miranda was to address psychologically pressured interviews and that it had noted that adequate protection was essential in order "to dispel the compulsion inherent in custodial surroundings". The Miranda decision was intended to prevent coercion, not merely to require a "disclosure of legal facts". The present decision "allow[ed] a waiver of the right to occur after interrogation had commenced, through a response to that interrogation". As a result, two subtly different meanings of "right to remain silent" could be construed,[25] and a suspect who was (in the words of Miranda v. Arizona) "vulnerable, unassertive, and in need of protection"—precisely the kind of suspect Miranda aimed at protecting—would be left unaware:

that one must utter magic words to go from possessing only one of these rights (to remain silent while interrogation takes place) to possessing the other right (to avoid interrogation altogether). Thus, the law of Miranda sets a trap for the unwary — the very people who are feeling unable to assert themselves—to be subjected to interrogation until they are worn down and respond to questions.[25]

A joint Amicus Curiae brief on behalf of the National Association of Criminal Defense Lawyers and American Civil Liberties Union cautioned similarly:

What is clear from the record is that the detectives chose not to seek an express Miranda waiver ... and importantly, the detectives made a strategic choice not to ask Thompkins whether he would be willing to waive his rights ... presumably because doing so risked invocation. ... Miranda's "waiver first" rule is the most effective way to avoid the very evil that case sought to address, namely that the highly coercive and intimidating custodial environment compels unwilling suspects to speak [...] a "waiver by confession" hours later is presumed to be the product of the interrogation environment–just the sort of coerced "waiver" Miranda sought to prevent. (emphasis in original)[26]

Steven Shapiro, legal director of the ACLU, stated on similar lines in The Wall Street Journal online edition, that Berghuis "seriously undermines" Miranda, in which the court had "recognized that a suspect in police custody can be worn down by prolonged questioning and other interrogation tactics".[5]

UC Berkeley law professor John Yoo responded in a matching article in the same publication, that the court's view provides interpretive guidance when a suspect says nothing for an extended period. More significantly (he wrote), it symbolizes and parallels the Obama administration's favoring of the "terrorism-as-crime" pre-2001 paradigm over the "terrorism-as-war" paradigm of the Bush era. (See anti-terrorism legislation and Bush Doctrine) This perspective could influence terrorism cases, when the opponents were declared to be at war, since "interrogation would seek actionable intelligence to stop attacks, not confessions for use in civilian trials". Yoo concluded that the court's "new flexibility" would perhaps allow it to "ease the burden" on military, intelligence and police" and permit "more [flexible responses to] terrorism within the criminal-justice paradigm, though at the expense of weakening the civil rights of all Americans". The present ruling might clarify that Miranda was not relevant where information was not being collected for use at a trial. As such it might act in mitigation of "weak anti-terrorism policies".[27]

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, stated that the court had recognized the "practical realities that the police face in dealing with suspects" and placed reasonable limits on "an artificial rule that is not really in the Constitution". The statement concluded that "[t]he rule that really is in the Constitution, that no person may be compelled to be a witness against himself, is not changed by today's decision".[28]

Emily Berman, counsel at the Brennan Center for Justice at the NYU School of Law commented that "[Berghuis]' potential consequences are as predictable as night following day: Police will interrogate criminal suspects who do not explicitly invoke their rights—often, those will be suspects who are unsophisticated, poorly educated or mentally ill—for hours on end. This will lead, just as inevitably, to more coerced—and therefore unreliable—confessions... the very phenomenon that Miranda aimed to eliminate." She noted the attorney general's comment that Miranda warnings had not deterred terrorism suspects such as Umar Farouk Abdulmutallab and Faisal Shahzad from talking and providing "valuable intelligence". The positive observation was a reflection upon attempts by Congress to amend Miranda legislatively, that the decision "sends a strong signal" that "the Supreme Court is not shy about curtailing Miranda protections, even without prodding from Congress". She concluded that "[w]hile it might look with hostility on congressional attempts to rein in the scope of the Miranda rule, the Supreme Court itself is willing to interpret narrowly the protections that Miranda affords criminal defendants. And it is willing to reach relatively far to do so." [29]

Other legal responses included Stanford University law professor Robert Weisberg, who stated that "this decision authorizes lower courts to construe ambiguous situations in favor of police and prosecutors",[30] and University of Michigan law professor Richard Friedman who concluded, "[t]his decision means that police can keep shooting questions at a suspect who refuses to talk as long as they want in hopes that the person will crack and give them some information... It's a little bit less restraint that the officers have to show."[2]

At least one scholar has argued that Thompkins effectively gutted Miranda. In The Right to Remain Silent, Charles Weisselberg argues that "the majority in Thompkins rejected the fundamental underpinnings of Miranda v. Arizona's prophylactic rule and established a new one that fails to protect the rights of suspects." and that "But in Thompkins, neither Michigan nor the Solicitor General were able to cite any decision in which a court found that a suspect had given an implied waiver after lengthy questioning. Thompkins persevered for almost three hours before succumbing to his interrogators. In finding a waiver on these facts, Thompkins gives us an implied waiver doctrine on steroids."[3]

National and regional media outlets reported a range of views similar to the above:

• Kansas City Star – "this is but one of a series of high court rulings in recent months that have effectively nipped away at the Miranda ruling. ... Perhaps because it is occurring incrementally, few outside the legal community have taken note of the trend... And besides, as long as the good guys win out over the bad, who cares how we get there, right?... We ought to care.... [z]eal for fighting crime shouldn't be allowed to undercut American standards like 'innocent until proven guilty'." It concluded that Sotomayor—the newest justice at the court—seemed to understand that "[g]ood policing is based on building cases, not on coercing confessions. ... What's the matter with the conservatives on the court?" [31]

• Bakersfield Californian – stated that "local attorneys [are] mixed on the decision", citing a variety of local attorneys. These included a defense attorney as saying "[t]ime will tell whether this activist conservative-majority Supreme Court is doing the right thing in moving back the clock on Miranda rights" and a district attorney as saying "Miranda had been broadened over the years far beyond what was necessary for its original goal of protecting suspects from [coercion]. ... police culture has dramatically changed for the better in the 40-plus years since it came into being". A second defense attorney was quoted as saying that "[i]t's placing too much on a person who is already in an incredibly stressful situation. If I sit you down in a chair in a little room and shine a harsh light in your face and question you for three hours, under those conditions I could get a ham sandwich to confess." A county public defender opined that the ruling was not unfavorable, as a clear answer would be preferable to uncertainty. Local police stated the ruling did not affect how interrogations would be conducted.[32]

• Philadelphia Inquirer – asked "[s]ince when do Americans have to declare their constitutional rights out loud in order to claim them?" and that the decision had "set off ... shock waves among rights activists". It commented that "[t]he fact that DNA exonerations often upend criminal confessions that turn out to have been coerced after lengthy interrogations demonstrates the risks of such police procedures. That's a key reason Miranda rights were established in the first place". The ruling made automatic videotaping of major-crime interviews "critical". It concluded that "[i]t may seem to some that the high court ruling will enable police to nab more bad guys and make the charges stick. But by setting up a 'gotcha' set of rules about a key constitutional protection, the high court has eroded individual liberty for all Americans."[33]

A number of newspapers, including well known and national titles such as USA Today,[30] The New York Times[22] and The Washington Post,[34] and titles such as Associated Press[2] and The Washington Times,[35] reported the facts on both sides without stating a strong editorial position in their coverage.