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

Close Counts in Horseshoes and Miranda Warnings

In February, the Court announced the latest in a line of cases related to the sufficiency of Miranda warnings. In Florida v. Powell, the Court held that even though the police did not specifically inform the suspect that he had the right to consult with an attorney during questioning, what he was told was sufficient to convey that information.

In Miranda v. Arizona, the Court set out what it hoped would be a set of simple, easy to apply set of warnings that the police must give to a suspect before engaging in any custodial interrogation. The Miranda Court hoped that these warnings would help to level the playing field between a suspect and the police in the pressure-filled and coercive environment of a custodial interrogation. The Court also believed that a simple set of warnings would help to extract the Supreme Court and the lower courts from having to sort out the very fact-bound and inherently conflicting evidence that had, up to that time, characterized much of the litigation over the voluntariness of confessions.

Looking back now 44 years after Miranda, Florida v. Powell is another reminder that the Miranda Court’s vision has not been realized. On the contrary, Miranda has created a complex, confusing and inherently inconsistent body of caselaw and it leaves us wondering whether Miranda really solved anything.

The specific rights and warnings that the Court set out in Miranda were: the right to remain silent, the warning that anything the suspect says could be used against the suspect, the right to have an attorney present during questioning, and the right to have an attorney appointed if the suspect could not afford one. In Powell, the Court was asked to rule on the adequacy of the standard warnings used by the Tampa Police Department. The Tampa warnings did not specifically tell the suspect that he or she had the right to have an attorney present during questioning. Rather, the warnings told the suspect that he or she has the right to talk to a lawyer before questioning, and that the suspect has the “right to use any of these rights at any time you want during questioning.” The Court, in an opinion written by Justice Ginsberg, found that, while these warnings did not track exactly the requirements of Miranda, the warnings sufficiently informed the suspect that he or she could have an attorney present during questioning.

It is true that the Tampa Police Department’s warnings do not depart drastically from the Miranda requirements, but the question remains: if Miranda set out such bright line guidance, why depart from it at all? Could it be that the police are hoping that by simply throwing in a catch-all phrase at the end of the warning, the suspect will not fully make the connection between the right to consult with counsel before questioning and the right to have counsel present during questioning? When the Court approves of these “close enough” warnings procedures like the one in Powell, is it also signaling that it too does not think much of the protections provided by Miranda? What does seem sure is that a healthy majority of the Court, both liberals and conservatives, will continue to pursue a course of Miranda jurisprudence that departs from the simple guidance that the Miranda Court hoped to achieve.

Victor Hansen