Miranda Rights: Valid Waiver Though Preceded by 3 Hours’ Silence

By Wisconsin State Public Defender
Jun 1, 2010

Berghuis v. Thompkins, USSC No. 08-1470, 6/1/10

Thompkins’ acknowledgment that he prayed for God’s forgiveness for the shooting was admissible as valid waiver of Miranda rights, despite being preceded by nearly 3 hours of silence during custodial interrogation. Rights must be invoked unequivocally, or not at all:

The Court has not yet stated whether an invocation of the right to remain silent can be ambiguous or equivocal, but there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. See, e.g., Solem v. Stumes, 465 U. S. 638, 648 (1984) (“[M]uch of the logic and language of [Mosley],” which discussed the Miranda right to remain silent, “could be applied to the invocation of the [Miranda right to counsel]”). Both protect the privilege against compulsory self-incrimination, Miranda, supra, at 467– 473, by requiring an interrogation to cease when either right is invoked, Mosley, supra, at 103 (citing Miranda, supra, at 474); Fare v. Michael C., 442 U. S. 707, 719 (1979).

Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his “‘right to cut off questioning.’” Mosley, supra, at 103 (quoting Miranda, supra, at 474). Here he did neither, so he did not invoke his right to remain silent.

Thompkins, then, didn’t invoke his right to silence. But did he waive it, a separate inquiry? You bet, given the “implied waiver” doctrine:

If the State establishes that a Miranda warning was given and the accused made an uncoerced statement, this showing, standing alone, is insufficient to demonstrate “a valid waiver” of Miranda rights. Miranda, supra, at 475. The prosecution must make the additional showing that the accused understood these rights. See Colorado v. Spring, 479 U. S. 564, 573–575 (1987); Barrett, supra, at 530; Burbine, supra, at 421–422. Cf. Tague v. Louisiana, 444 U. S. 469, 469, 471 (1980) (per curiam) (no evidence that accused understood his Miranda rights); Carnley v. Cochran, 369 U. S. 506, 516 (1962) (government could not show that accused “understandingly” waived his right to counsel in light of “silent record”). Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.

Nor was his waiver coerced. (“It is true that apparently he was in a straight-backed chair for three hours, but there is no authority for the proposition that an interrogation of this length is inherently coercive. Indeed, even where interrogations of greater duration were held to be improper, they were accompanied, as this one was not, by other facts indicating coercion, such as an incapacitated and sedated suspect, sleep and food deprivation, and threats.”) But surely there must be some showing of waiver beyond the bare fact of a statement … guess again:

In order for an accused’s statement to be admissible at trial, police must have given the accused a Miranda warning. See Miranda, 384 U. S., at 471. If that condition is established, the court can proceed to consider whether there has been an express or implied waiver of Miranda rights. Id., at 476. In making its ruling on the admissibility of a statement made during custodial questioning, the trial court, of course, considers whether there is evidence to support the conclusion that, from the whole course of questioning, an express or implied waiver has been established. Thus, after giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived his or her Miranda rights. On these premises, it follows the police were not required to obtain a waiver of Thompkins’s Miranda rights before commencing the interrogation.

Give warnings, get statement: who knew life could be so simple? Kurt Scheidegger terms the decision, without exaggeration, as “A Major Pruning of Miranda.” Ditto, Lyle Denniston (“The net practical effect is likely to be that police, in the face of a suspect’s continued silence after being given Miranda warnings, can continue to question him, even for a couple of hours, in hopes eventually of getting him to confess.”) Together with last Term’s Montejo v. Louisiana, 556 U.S. ___, 129 S. Ct. 2079 (2009) (post-charge: not enough to obtain counsel, defendant must expressly invoke right to counsel to bar interrogation), this decision will almost certainly encourage vigorous interrogation efforts that in the past would have been forestalled out of caution. Indeed, as Denniston points out, “Many [police] manuals, it appears, tell police that they should not do any questioning at all until they have obtained an explicit waiver of the suspect’s rights. It is now clear that that is not constitutionally required.” What were flashing amber lights now shine solid green. Any chance Wisconsin will chart its own course? That probably depends on the outcome of State v. Forbush.