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June 30, 2010

Miranda Takes Another Pounding

With Berghuis v. Thompkins, the U.S. Supreme Court decided its third Miranda case of the 2009-2010 term. This case follows a consistent trend by the Court to further limit the protections provided by Miranda warnings. It leaves us wondering what protections remain from the Court’s initial Miranda opinion, and raises the question of what the best way is to protect the interests the Court originally identified in Miranda.

In Berghuis, the defendant, Thompkins, was given his complete Miranda warnings and said virtually nothing for the next three hours. After this almost three hours of silence, where Thompkins neither expressly invoked or expressly waived his Miranda rights, the police asked him if he believed in God and if he prayed to God to forgive him for shooting the victim. To this question the defendant answered “yes” and this statement was admitted against him at trial.

The issue for the Court was whether by saying nothing at all, Thompkins had invoked his right to remain silent. Relying and expanding on its precedents in Davis v. United States and North Carolina v. Butler, the Court held that under these facts, Thompkins had not invoked his right to silence by saying nothing at all. What is most interesting and perhaps most telling about the Court’s current view of Miranda protections was the Court’s willingness to apply their holdings in Davis and Butler to these facts without any attempt to distinguish those cases.

In Davis, after the defendant had been advised of his Miranda rights and expressly waived those rights, during the course of the interrogation he made an equivocal request for counsel. The Court held that such an equivocal request for counsel made during the course of the interrogation is not an invocation of that right and the police are under no obligation to stop questioning or to clarify the accused’s intent. In Berghuis the Court saw no reason to craft a different rule with respect to the defendant’s right to silence.

It certainly makes sense and provides useful symmetry to apply the same standard to an invocation for the right to counsel and the right to remain silent. What the Court ignored in Berghuis, however, is what really distinguishes this case from Davis. In Davis, at the beginning of the interrogation, the defendant expressly waived both his right to silence and the right to counsel. Because of that express waiver, there was no real question that he understood his rights and that he intended to waive them. Berghuis presented the Court with a critical difference. At no time did Thompkins indicate that he understood his rights and there was never an express waiver. This difference certainly raises a question as to the knowing and voluntariness of the defendant’s waiver that did not exist in Davis. Other than Thompkins’ three-hour silence in the face of persistent questioning followed by a “yes,” there is nothing in the record to indicate that Thompkins either understood his rights or that he intended to waive them.

While this is not the first time the Court has held that a waiver can be implied from the facts and circumstances of the case (see North Carolina v. Butler), this is certainly the first case where the Court has held that a three-hour silence in the face of persistent questioning is evidence of an implied voluntary waiver.

Moreover, the Court’s opinion in Berghuis undermines one of the core rationales for Miranda warnings. One of the primary reasons the Miranda Court required warnings in a custodial interrogation setting was to empower the suspect with the knowledge that he does not have to submit to the interrogation and he can stop the interrogation at any point. If we now say that the suspect’s silence in the face of police questioning will earn him hours of persistent questioning until he says something, it is difficult to see how Miranda warnings really level the playing field.

Nevertheless, Berghuis has the value of consistency in that it is the latest reflection of the Court’s disdain for Miranda. In light of this hostility, maybe it is time for advocates of Miranda type protections to focus their efforts on statutory reforms that codify Miranda’s most important protections. These advocates would do well to look at how the military treats these issues. Interestingly, Article 31 of the Uniform Code of Military Justice codified Miranda type warnings years before Miranda was decided. Because these requirements are not court-created rules but requirements imposed by Congress, they are not so easily avoided or narrowed by the courts. Certainly getting legislators and policymakers to support statutes, rules, and procedures that at first blush might be seen to benefit criminal defendants is no easy task, but it seems a better option than being continually pounded by the Court.

Victor Hansen

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