You Have to Speak Up to Remain Silent: The Supreme Court Revisits the Miranda Right to Silence

By Rudd, Jonathan L. | The FBI Law Enforcement Bulletin, September 2010 | Go to article overview

You Have to Speak Up to Remain Silent: The Supreme Court Revisits the Miranda Right to Silence


Rudd, Jonathan L., The FBI Law Enforcement Bulletin


Forty-four years ago, the U.S. Supreme Court handed down one of its most famous decisions--Miranda v. Arizona. (1) In Miranda, the Court addressed the application of the Fifth Amendment privilege against self-incrimination to in-custody interrogations and attempted "to give concrete constitutional guidelines for law enforcement agencies and courts to follow." (2) Despite these guidelines and the fact that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture," (3) the practical application of Miranda continues to be debated and refined. This article focuses on the Supreme Court's most recent decision in this area, Berghuis v. Thompkins, which was decided on June 1, 2010, and shines new light on issues surrounding both the invocation and waiver of the Miranda right to remain silent. (4)

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Setting the Stage

In Miranda, the Court held that "the prosecution may not use statements [...] stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." (5) The procedural safeguards mandated by the Court are a specific set of warnings that must be given to individuals who are in custody and subject to interrogation. (6) As one modern textbook explains, "The formula should be as easy as 1 + 1 = 2; that is, 'custody' + 'interrogation' = the requirement that Miranda warnings be given." (7)

Once the warnings have been given, subjects must waive their rights before making any statements that can be used against them at trial, or, in the alternative, subjects may invoke the right to silence, the Miranda right to counsel, or both. Once either or both of these rights are invoked, all questioning of subjects must cease. "Although the rule seems straightforward enough, a number of issues arise in cases regarding the application of Miranda that typically hinge on the meaning of [the] terms: custody, interrogation, warning, [invocation] and waiver." (8) Berghuis is one of these cases.

As we will see, the issue in Berghuis is not whether the subject was in custody or whether appropriate warnings were given. "The dispute centers on the response--or nonresponse--from the suspect" once the warnings were given. More specifically, in Berghuis, the Court refines the meaning and scope of an invocation and waiver of the Miranda right to silence.

Berghuis v. Thompkins

In Berghuis, Van Chester Thompkins was arrested in Ohio for a shooting that occurred approximately 1 year earlier in Southfield, Michigan. While in custody, Thompkins was questioned by two detectives in a police interview room. At the beginning of the interrogation, the detectives presented Thompkins with a general set of Miranda warnings. (9)

To make sure Thompkins could understand English, one of the detectives asked Thompkins to read a portion of the warnings out loud, which he did. Thereafter, the detective read the rest of the warnings to Thompkins and asked him to sign the form, indicating that he understood his rights. Thompkins refused to sign the form, and the officers began interrogating Thompkins. "At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney." (10)

With the exception of some minor verbal responses and limited eye contact, Thompkins remained silent for most of the 3-hour interview. Approximately 2 hours and 45 minutes into the interrogation, one of the detectives asked Thompkins if he believed in God. Thompkins said that he did. The detective then followed up by asking Thompkins if he prayed to God. Thompkins said, "Yes." The detective then asked, "Do you pray to God to forgive you for shooting that boy down?" To which, Thompkins answered, "Yes." Thompkins refused to make a written statement, and the interrogation ended. …

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