Berghuis v. Thompkins
Encyclopedia
Berghuis v. Thompkins, (docket 08-1470), is a decision by the United States Supreme Court
in which the Court considered the position of a suspect
who understands his or her right to remain silent under Miranda v. Arizona
and is aware he or she has the right to remain silent, but does not explicitly invoke or waive the right. The Court held that unless and until the suspect actually stated that he was relying on that right, his subsequent voluntary statements could be used in court and police could continue to interact with (or question) him. The mere act of remaining silent was, on its own, insufficient to imply the suspect has invoked his or her rights. Furthermore, a voluntary reply even after lengthy silence could be construed as implying a waiver.
The Court was split 5-4. The dissent, authored by Justice Sonia Sotomayor
, argued that Miranda and other previous cases had required a claimed waiver of a constitutional right to be shown more strongly, especially in light of a lengthy interrogation with a possible "compelling influence" during which the accused had remained almost entirely silent for almost 3 hours prior to the self-incriminating statement.
Responses from legal observers and the media were divided. Many considered Berghuis a further erosion of Miranda and were concerned it was "turning the clocks back" on safeguards developed in previous cases. Others saw the ruling as a sign of strength and a signal that the Court, under its own impetus, was willing to address known issues resulting from the view of terrorism as crime. The more common view was concern that vulnerable citizens could now be placed under pressure and, despite having an understanding of their rights, could be more easily coerced prejudicial to their interests.
and with rare exceptions,Three examples of potential exceptions are: Grand jury
witnesses may be given a grant of immunity
and compelled to give testimony under oath. A grant of immunity removes the possibility of the jeopardy of self incrimination, and therefore removes the right to remain silent to avoid self incrimination. The right against self-incrimination does not apply for testimony before a self-regulatory organization
(SRO), such as the National Association of Securities Dealers (NASD), since these are generally not considered as state actors subject to the restraints of the fifth amendment. In Raffel v. United States it was held that a criminal defendant who voluntarily testifies in his own behalf waives completely his privilege under the Fifth Amendment. ("The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf and not for those who do. There is a sound policy in requiring the accused who offers himself as a witness to do so without reservation") 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 well known 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 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.
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 3-hour interrogation and the few sporadic comments he made had no bearing on the case (police described it as "nearly a monologue"), but near the end, detectives changed their approach and "tried a spiritual tac[k]" and an "appeal to his conscience and religious beliefs". 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. 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.
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 Court ruled that Thompkins' silence during the interrogation did not invoke his right to remain silent and that he had waived his right to remain silent when he knowingly and voluntarily made a statement to police.
(On the other issue considered, the court ruled that prejudice due to deficient representation in respect of jury instruction was "doubtful", but even if it had been deficient, other evidence of guilt corroborating the conviction made it unlikely that a change of jury instruction would have made any difference.)
There was no good reason why the standard for invoking the Miranda right to remain silent and the Miranda right to counsel should differ. "Both protect... against compulsory self-incrimination... by requiring an interrogation to cease when either right is invoked". Making either of these statements would have ended the questions but the accused made neither of them.
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
) that there was good reason why invoking these rights should require an unambiguous act of the accused, including certainty for police, prosecutors, and accused, 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). 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." 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. 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.
The case of North Carolina v. Butler 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:
wrote the dissenting opinion for four Justices, her first major dissenting opinion on the Court. 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", 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."
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
". It cited from Miranda that:
and that Miranda and North Carolina v. Butler both agreed that:
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."
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".
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". 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, 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:
A joint Amicus Curiae
brief on behalf of the National Association of Criminal Defense Lawyers
and American Civil Liberties Union
cautioned similarly:
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".
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
favouring 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".
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".
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."
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", 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."
A number of newspapers, including well known and national titles such as USA Today
, The New York Times
and The Washington Post
, and titles such as Associated Press
and The Washington Times
, reported the facts on both sides without stating a strong editorial position in their coverage.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in which the Court considered the position of a suspect
Suspect
In the parlance of criminal justice, a suspect is a known person suspected of committing a crime.Police and reporters often incorrectly use the word suspect when referring to the...
who understands his or her right to remain silent under Miranda v. Arizona
Miranda v. Arizona
Miranda v. Arizona, , was a landmark 5–4 decision of the United States Supreme Court. The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant...
and is aware he or she has the right to remain silent, but does not explicitly invoke or waive the right. The Court held that unless and until the suspect actually stated that he was relying on that right, his subsequent voluntary statements could be used in court and police could continue to interact with (or question) him. The mere act of remaining silent was, on its own, insufficient to imply the suspect has invoked his or her rights. Furthermore, a voluntary reply even after lengthy silence could be construed as implying a waiver.
The Court was split 5-4. The dissent, authored by Justice Sonia Sotomayor
Sonia Sotomayor
Sonia Maria Sotomayor is an Associate Justice of the Supreme Court of the United States, serving since August 2009. Sotomayor is the Court's 111th justice, its first Hispanic justice, and its third female justice....
, argued that Miranda and other previous cases had required a claimed waiver of a constitutional right to be shown more strongly, especially in light of a lengthy interrogation with a possible "compelling influence" during which the accused had remained almost entirely silent for almost 3 hours prior to the self-incriminating statement.
Responses from legal observers and the media were divided. Many considered Berghuis a further erosion of Miranda and were concerned it was "turning the clocks back" on safeguards developed in previous cases. Others saw the ruling as a sign of strength and a signal that the Court, under its own impetus, was willing to address known issues resulting from the view of terrorism as crime. The more common view was concern that vulnerable citizens could now be placed under pressure and, despite having an understanding of their rights, could be more easily coerced prejudicial to their interests.
Legal background
Under U.S. lawLaw of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
and with rare exceptions,Three examples of potential exceptions are: Grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
witnesses may be given a grant of immunity
Prosecutorial immunity
Immunity from prosecution occurs when a prosecutor grants immunity, usually to a witness in exchange for testimony or production of other evidence. It is immunity because the prosecutor essentially agrees to never prosecute the crime that the witness might have committed in exchange for said...
and compelled to give testimony under oath. A grant of immunity removes the possibility of the jeopardy of self incrimination, and therefore removes the right to remain silent to avoid self incrimination. The right against self-incrimination does not apply for testimony before a self-regulatory organization
Self-regulatory organization
A self-regulatory organization is an organization that exercises some degree of regulatory authority over an industry or profession. The regulatory authority could be applied in addition to some form of government regulation, or it could fill the vacuum of an absence of government oversight and...
(SRO), such as the National Association of Securities Dealers (NASD), since these are generally not considered as state actors subject to the restraints of the fifth amendment. In Raffel v. United States it was held that a criminal defendant who voluntarily testifies in his own behalf waives completely his privilege under the Fifth Amendment. ("The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf and not for those who do. There is a sound policy in requiring the accused who offers himself as a witness to do so without reservation") 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
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
. Remaining silent is optional - they may speak or be silent as they wish. The well known Miranda warning
Miranda warning
The Miranda warning is a warning given by police in the United States to criminal suspects in police custody before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings. In Miranda v...
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 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.
Interrogation and conviction
Van Chester Thompkins was considered a suspectSuspect
In the parlance of criminal justice, a suspect is a known person suspected of committing a crime.Police and reporters often incorrectly use the word suspect when referring to the...
in a fatal shooting on January 10, 2000 in Southfield, Michigan
Southfield, Michigan
According to the United States Census Bureau, the city has a total area of , of which 0.04% is water. The main branch of the River Rouge runs through Southfield. The city is bounded to the south by Eight Mile Road, its western border is Inkster Road, and to the east it is bounded by Greenfield Road...
. 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 3-hour interrogation and the few sporadic comments he made had no bearing on the case (police described it as "nearly a monologue"), but near the end, detectives changed their approach and "tried a spiritual tac[k]" and an "appeal to his conscience and religious beliefs". Thompkins was asked in sequence - did he believe in God
God
God is the English name given to a singular being in theistic and deistic religions who is either the sole deity in monotheism, or a single deity in polytheism....
, did he pray
Prayer
Prayer is a form of religious practice that seeks to activate a volitional rapport to a deity through deliberate practice. Prayer may be either individual or communal and take place in public or in private. It may involve the use of words or song. When language is used, prayer may take the form of...
to God, and did he pray to God to forgive him for shooting the victim. He answered "yes" to each of these. Thompkins made a motion
Motion (legal)
In law, a motion is a procedural device to bring a limited, contested issue before a court for decision. A motion may be thought of as a request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is...
to suppress his statements, claiming that he had invoked his Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
right to remain silent, that he had not waived
Waiver
A waiver is the voluntary relinquishment or surrender of some known right or privilege.While a waiver is often in writing, sometimes a person's actions can act as a waiver. An example of a written waiver is a disclaimer, which becomes a waiver when accepted...
that right, and that his inculpatory statements were involuntary. The trial court denied his motion and Thompkins was found guilty by a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
and sentenced to life imprisonment without the possibility of parole
Parole
Parole may have different meanings depending on the field and judiciary system. All of the meanings originated from the French parole . Following its use in late-resurrected Anglo-French chivalric practice, the term became associated with the release of prisoners based on prisoners giving their...
. Of note, there had been significant other evidence of guilt corroborating the conviction.
State court appeal and federal court habeas corpus proceedings
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 AppealsMichigan Court of Appeals
The Michigan Court of Appeals is the intermediate-level appellate court of the state of Michigan. It was created by the Michigan Constitution of 1963, and commenced operations in 1965...
rejected Thompkins' Miranda claim. Thompkins then filed a writ of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
in federal District Court
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
but it denied his request. However, the United States Court of Appeals for the Sixth Circuit
United States Court of Appeals for the Sixth Circuit
The United States Court of Appeals for the Sixth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Kentucky* Western District of Kentucky...
reversed the District Court's decision, holding that the state court was unreasonable in finding an implied waiver of Thompkins’ right to remain silent.
Petition to the U.S. Supreme Court
The state's petition to the Supreme Court advanced a number of reasons to hold that extended silence should not be construed as a waiver, 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 ... 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" provided by the Miranda warnings."
- "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."
The Court's decision
On June 1, 2010, by a vote of 5-4, the Supreme Court reversed the Sixth Circuit's decision. In the Opinion of the Court, written by Justice KennedyAnthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
, the Court ruled that Thompkins' silence during the interrogation did not invoke his right to remain silent and that he had waived his right to remain silent when he knowingly and voluntarily made a statement to police.
(On the other issue considered, the court ruled that prejudice due to deficient representation in respect of jury instruction was "doubtful", but even if it had been deficient, other evidence of guilt corroborating the conviction made it unlikely that a change of jury instruction would have made any difference.)
Majority opinion
The Court reasoned as follows on Thompkins' various arguments:There was no good reason why the standard for invoking the Miranda right to remain silent and the Miranda right to counsel should differ. "Both protect... against compulsory self-incrimination... by requiring an interrogation to cease when either right is invoked". Making either of these statements would have ended the questions but the accused made neither of them.
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
Davis v. United States (1994)
Davis v. United States, 512 U.S. 452 , was a 1994 United States Supreme Court case that established that the right to counsel can only be legally asserted by an "unambiguous or unequivocal request for counsel."-Factual background:...
) that there was good reason why invoking these rights should require an unambiguous act of the accused, including certainty for police, prosecutors, and accused, 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). Miranda v. Arizona
Miranda v. Arizona
Miranda v. Arizona, , was a landmark 5–4 decision of the United States Supreme Court. The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant...
(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." 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. 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.
The case of North Carolina v. Butler 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."
Sotomayor's dissent
Associate Justice Sonia SotomayorSonia Sotomayor
Sonia Maria Sotomayor is an Associate Justice of the Supreme Court of the United States, serving since August 2009. Sotomayor is the Court's 111th justice, its first Hispanic justice, and its third female justice....
wrote the dissenting opinion for four Justices, her first major dissenting opinion on the Court. She wrote that the case represented "a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona
Miranda v. Arizona
Miranda v. Arizona, , was a landmark 5–4 decision of the United States Supreme Court. The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant...
has long provided during custodial interrogation", 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."
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
Johnson v. Zerbst
Johnson v. Zerbst, 304 U.S. 458 , was a United States Supreme Court case, in which the petitioner, Johnson, had been convicted in federal court of feloniously possessing, uttering, and passing counterfeit money in a trial where he had not been represented by an attorney but instead by himself...
". 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."
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".
Legal views and responses
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
Cornell Law School
Cornell Law School, located in Ithaca, New York, is a graduate school of Cornell University and one of the five Ivy League law schools. The school confers three law degrees...
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". 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, 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."
A joint Amicus Curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
brief on behalf of the National Association of Criminal Defense Lawyers
National Association of Criminal Defense Lawyers
The National Association of Criminal Defense Lawyers is an American criminal defense organization. Their stated mission is to "Ensure justice and due process for persons accused of crime. Foster the integrity, independence and expertise of the criminal defense profession...
and American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
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)
Steven Shapiro, legal director of the ACLU
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
, 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".
UC Berkeley law professor John Yoo
John Yoo
John Choon Yoo is an American attorney, law professor, and author. As a former official in the United States Department of Justice during the George W...
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
Presidency of Barack Obama
The Presidency of Barack Obama began at noon EST on January 20, 2009 when he became the 44th President of the United States. Obama was a United States Senator from Illinois at the time of his victory over Arizona Senator John McCain in the 2008 presidential election...
favouring of the "terrorism-as-crime" pre-2001 paradigm over the "terrorism-as-war" paradigm
War on Terror
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
of the Bush era. (See anti-terrorism legislation
Anti-terrorism legislation
Anti-terrorism legislation designs various types of laws passed in the aim of fighting terrorism. They usually, if not always, follow specific bombings or assassinations...
and Bush Doctrine
Bush Doctrine
The Bush Doctrine is a phrase used to describe various related foreign policy principles of former United States president George W. Bush. The phrase was first used by Charles Krauthammer in June 2001 to describe the Bush Administration's unilateral withdrawals from the ABM treaty and the Kyoto...
) 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".
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".
Emily Berman, counsel at the Brennan Center for Justice
Brennan Center for Justice
The Brennan Center for Justice at New York University Law School is a non-partisan public policy and law institute that focuses on issues involving democracy and 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
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
's comment that Miranda warnings had not deterred terrorism suspects such as Umar Farouk Abdulmutallab
Umar Farouk Abdulmutallab
Umar Farouk Abdulmutallab , popularly referred to as the "Underwear Bomber", is a suspected terrorist who attempted to detonate plastic explosives hidden in his underwear while on board Northwest Airlines Flight 253, en route from Amsterdam to Detroit, Michigan, on December 25,...
and Faisal Shahzad
Faisal Shahzad
Faisal Shahzad is a Pakistani American who attempted the May 1, 2010, Times Square car bombing. On , 2010, in Federal District Court in Manhattan he confessed to 10 counts arising from the bombing attempt...
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."
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", 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."
Media response
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?"
- Bakersfield CalifornianThe Bakersfield CalifornianThe Bakersfield Californian is the daily newspaper serving Bakersfield, California and surrounding Kern County in the state's San Joaquin Valley.-History:...
- 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 attorneyDistrict attorneyIn many jurisdictions in the United States, a District Attorney is an elected or appointed government official who represents the government in the prosecution of criminal offenses. The district attorney is the highest officeholder in the jurisdiction's legal department and supervises a staff of...
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 defenderPublic defenderThe term public defender is primarily used to refer to a criminal defense lawyer appointed to represent people charged with a crime but who cannot afford to hire an attorney in the United States and Brazil. The term is also applied to some ombudsman offices, for example in Jamaica, and is one way...
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.
- Philadelphia InquirerThe Philadelphia InquirerThe Philadelphia Inquirer is a morning daily newspaper that serves the Philadelphia, Pennsylvania, metropolitan area of the United States. The newspaper was founded by John R. Walker and John Norvell in June 1829 as The Pennsylvania Inquirer and is the third-oldest surviving daily newspaper in the...
- 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."
A number of newspapers, including well known and national titles such as USA Today
USA Today
USA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth. The newspaper vies with The Wall Street Journal for the position of having the widest circulation of any newspaper in the United States, something it previously held since 2003...
, The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
and The Washington Post
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...
, and titles such as Associated Press
Associated Press
The Associated Press is an American news agency. The AP is a cooperative owned by its contributing newspapers, radio and television stations in the United States, which both contribute stories to the AP and use material written by its staff journalists...
and The Washington Times
The Washington Times
The Washington Times is a daily broadsheet newspaper published in Washington, D.C., the capital of the United States. It was founded in 1982 by Unification Church founder Sun Myung Moon, and until 2010 was owned by News World Communications, an international media conglomerate associated with the...
, reported the facts on both sides without stating a strong editorial position in their coverage.
External links
- Berghuis v. Thompkins, No. 08-1470, slip op., 560 U.S. ___ (2010),
- Petition presented to Supreme Court
- docket files
- Case and links on SCOTUSblog
- Supreme Court Cases of Interest [notes] Criminal Justice, Vol. 24, Issue 4 (Winter 2010), pp. 48–51, Freeman, Carol Garfiel, 24 Criminal Justice 48 (2009–2010) [not available online at this time]