You Can Still Remain Silent -- Just Say So

The recent decision of the Supreme Court in requiring an unambiguous response to invoking one's right to remain silent has summoned a litany of panicked responses from many who believe that the Court has inflicted irreparable damage to an individual's rights. Time Magazine lamented: Has the Supreme Court Decimated Miranda? Hardly. In assessing the rights and requirements of both law enforcement and the accused, the Supreme Court has applied a reasonable standard to both parties while balancing the rights of the individual with the necessity of protecting lawful interrogations.

At issue is whether an individual engages in a de-facto invocation of his right against self-incrimination merely through silence alone. The case before the Supreme Court, Berghuis v. Thompkins, centered on the admissibility of an inculpatory statement made by Mr. Thompkins following a 3-hour interrogation. Thompkins, having been implicated for his involvement in a shooting that left one person dead, had been read his Miranda rights but remained largely uncommunicative and refused to acknowledge or invoke his understanding of the right to remain silent. He eventually answered "Yes" when questioned if he had asked God for forgiveness in shooting "that young boy down."

In a 5-4 ruling, the Supreme Court held that Mr. Thompkins statement was in fact admissible, stemming from his failure to "unambiguously" invoke his right against self-incrimination. Writing for the majority opinion, Justice Anthony Kennedy stated that, "Thompkins' silence during the interrogation did not invoke his right to remain silent." Kennedy further cited the need to "unambiguously" invoke one's Miranda right to counsel, relying on precedence established in Davis v. United States, 512 U.S. 452, 459.

In Davis, the Supreme Court held that until a suspect clearly states his desire to have counsel present during an interrogation officers are not required to conclude an interview. A brief background on the Davis case may provide additional clarity.

The petitioner, a member of the United States Navy, had been implicated in the death of a fellow service member. After having waived his rights, Davis participated in an interview with Naval Investigators for approximately one and a half hours after which time he stated, "Maybe I should talk to a lawyer." When investigators inquired if he was asking for counsel, Davis stated that he was not. Only after providing investigators with additional statements did Davis then expressly request the presence of an attorney.

During the appeals process Davis argued that the statements obtained following his vague mention of speaking to an attorney should be inadmissible. The Supreme Court ultimately disagreed, arguing that the ambiguity surrounding his statement of speaking to an attorney did not constitute a direct invocation and one that would, in light of precedence established in Edwards v. Arizona, 451 U.S. 477, 484-485, require investigators to refrain from continuing an interrogation.

In clarifying the Court's position in Davis, Justice Sandra Day O'Connor acknowledged that Edwards served to prohibit officers from "badgering" suspects into providing statements against their will; however, Justice O'Connor qualified the Edwards ruling by arguing that, "If a reference is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, Edwards does not require that officers stop questioning the suspect."

In Thompkins there was no unambiguous declaration on the suspect's part that would have required the detectives stop the interview process and summon legal representation. Thompkins mere silence alone did not portend that he refused to speak with investigators or that he desired the presence of an attorney.

Of course, there was significant disagreement throughout the appellate process whether greater salience should be placed on the defendant's tacit implication to remain silent rather than the necessity of him expressly desiring to do so.

In providing an amicus brief to the Sixth Circuit Court of Appeals, the American Civil Liberties Union (ACLU) argued that precedence had established the need for investigators to obtain an express waiver to remain silent before conducting an interrogation:

Thompkins never waived his right to remain silent. Under Miranda and its progeny, police must obtain a waiver before they interrogate, and the detectives did not do that here. 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. If a suspect waives his rights prior to interrogation, then the waiver presumably is made out of the suspect's uncoerced volition. If not, then 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.

Given the wide range of philosophical backgrounds arguing the relative merits of their respective positions it is unsurprising that having reached the Supreme Court a decision was split largely along predictable ideological lines. Justice Sonia Sotomayor was joined by Justices Stevens, Ginsburg, and Breyer in offering a dissenting opinion.

Justice Sonomayor argued that Miranda required establishing whether a suspect "knowingly and intelligently" waived his right to remain silent. Sotomayor further argued that the burden for establishing such prerequisites to interrogation rested on the government. Having sat in relative silence for nearly three hours Thompkins did not demonstrate an intelligent and willful waiver of his right to remain silent and thus an interrogation was not permissible. Sotomayor additionally challenged the majority opinion in stating that requiring suspects to "unambiguously invoke their right to remain silent ... counterintuitively requires them to speak."

It is doubtful that a suspect unwilling to participate in a police interrogation will unwittingly become compelled to do so should they be merely required to unambiguously state their desire not to answer questions that may lead to self-incrimination. Arguing that unambiguously invoking one's right to remain silent counterintuitively requires they speak becomes difficult to reconcile with the argument that investigators must establish a suspect's "knowing and intelligent" waiver of Miranda rights prior to interrogation.

Rather than muddling the standards necessary to allow investigators to conduct interrogations, Thompkins has provided a reasonable judgment by which a measure of responsibility is now placed on both law enforcement personnel and the suspects being questioned. Familiarity with one's Miranda rights has become ubiquitous throughout society. Pop culture, music, television, and Hollywood have stamped the individual's right to remain silent within the American lexicon. Given the apparently wide reach of that understanding it is not unreasonable to require an individual to "unambiguously" declare their desire to invoke it.

Scott Erickson has worked in the field of public safety for the past decade and hold his BS and MS in Criminal Justice Studies. Follow him on Twitter @SGErickson
The recent decision of the Supreme Court in requiring an unambiguous response to invoking one's right to remain silent has summoned a litany of panicked responses from many who believe that the Court has inflicted irreparable damage to an individual's rights. Time Magazine lamented: Has the Supreme Court Decimated Miranda? Hardly. In assessing the rights and requirements of both law enforcement and the accused, the Supreme Court has applied a reasonable standard to both parties while balancing the rights of the individual with the necessity of protecting lawful interrogations.

At issue is whether an individual engages in a de-facto invocation of his right against self-incrimination merely through silence alone. The case before the Supreme Court, Berghuis v. Thompkins, centered on the admissibility of an inculpatory statement made by Mr. Thompkins following a 3-hour interrogation. Thompkins, having been implicated for his involvement in a shooting that left one person dead, had been read his Miranda rights but remained largely uncommunicative and refused to acknowledge or invoke his understanding of the right to remain silent. He eventually answered "Yes" when questioned if he had asked God for forgiveness in shooting "that young boy down."

In a 5-4 ruling, the Supreme Court held that Mr. Thompkins statement was in fact admissible, stemming from his failure to "unambiguously" invoke his right against self-incrimination. Writing for the majority opinion, Justice Anthony Kennedy stated that, "Thompkins' silence during the interrogation did not invoke his right to remain silent." Kennedy further cited the need to "unambiguously" invoke one's Miranda right to counsel, relying on precedence established in Davis v. United States, 512 U.S. 452, 459.

In Davis, the Supreme Court held that until a suspect clearly states his desire to have counsel present during an interrogation officers are not required to conclude an interview. A brief background on the Davis case may provide additional clarity.

The petitioner, a member of the United States Navy, had been implicated in the death of a fellow service member. After having waived his rights, Davis participated in an interview with Naval Investigators for approximately one and a half hours after which time he stated, "Maybe I should talk to a lawyer." When investigators inquired if he was asking for counsel, Davis stated that he was not. Only after providing investigators with additional statements did Davis then expressly request the presence of an attorney.

During the appeals process Davis argued that the statements obtained following his vague mention of speaking to an attorney should be inadmissible. The Supreme Court ultimately disagreed, arguing that the ambiguity surrounding his statement of speaking to an attorney did not constitute a direct invocation and one that would, in light of precedence established in Edwards v. Arizona, 451 U.S. 477, 484-485, require investigators to refrain from continuing an interrogation.

In clarifying the Court's position in Davis, Justice Sandra Day O'Connor acknowledged that Edwards served to prohibit officers from "badgering" suspects into providing statements against their will; however, Justice O'Connor qualified the Edwards ruling by arguing that, "If a reference is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, Edwards does not require that officers stop questioning the suspect."

In Thompkins there was no unambiguous declaration on the suspect's part that would have required the detectives stop the interview process and summon legal representation. Thompkins mere silence alone did not portend that he refused to speak with investigators or that he desired the presence of an attorney.

Of course, there was significant disagreement throughout the appellate process whether greater salience should be placed on the defendant's tacit implication to remain silent rather than the necessity of him expressly desiring to do so.

In providing an amicus brief to the Sixth Circuit Court of Appeals, the American Civil Liberties Union (ACLU) argued that precedence had established the need for investigators to obtain an express waiver to remain silent before conducting an interrogation:

Thompkins never waived his right to remain silent. Under Miranda and its progeny, police must obtain a waiver before they interrogate, and the detectives did not do that here. 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. If a suspect waives his rights prior to interrogation, then the waiver presumably is made out of the suspect's uncoerced volition. If not, then 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.

Given the wide range of philosophical backgrounds arguing the relative merits of their respective positions it is unsurprising that having reached the Supreme Court a decision was split largely along predictable ideological lines. Justice Sonia Sotomayor was joined by Justices Stevens, Ginsburg, and Breyer in offering a dissenting opinion.

Justice Sonomayor argued that Miranda required establishing whether a suspect "knowingly and intelligently" waived his right to remain silent. Sotomayor further argued that the burden for establishing such prerequisites to interrogation rested on the government. Having sat in relative silence for nearly three hours Thompkins did not demonstrate an intelligent and willful waiver of his right to remain silent and thus an interrogation was not permissible. Sotomayor additionally challenged the majority opinion in stating that requiring suspects to "unambiguously invoke their right to remain silent ... counterintuitively requires them to speak."

It is doubtful that a suspect unwilling to participate in a police interrogation will unwittingly become compelled to do so should they be merely required to unambiguously state their desire not to answer questions that may lead to self-incrimination. Arguing that unambiguously invoking one's right to remain silent counterintuitively requires they speak becomes difficult to reconcile with the argument that investigators must establish a suspect's "knowing and intelligent" waiver of Miranda rights prior to interrogation.

Rather than muddling the standards necessary to allow investigators to conduct interrogations, Thompkins has provided a reasonable judgment by which a measure of responsibility is now placed on both law enforcement personnel and the suspects being questioned. Familiarity with one's Miranda rights has become ubiquitous throughout society. Pop culture, music, television, and Hollywood have stamped the individual's right to remain silent within the American lexicon. Given the apparently wide reach of that understanding it is not unreasonable to require an individual to "unambiguously" declare their desire to invoke it.

Scott Erickson has worked in the field of public safety for the past decade and hold his BS and MS in Criminal Justice Studies. Follow him on Twitter @SGErickson

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