Oklahoma Criminal Defense Blog

Everyone knows from thousands of television programs that someone has a right to silence when arrested.  On television, that right is rarely exercise since it makes better theater to include an interrogation scene.   In real life as well, the right to remain silent is rarely exercised, often because people believe they will look guilty.  But t he right to remain silent is commonly understood to exist

How to exercise the right to remain silent is not commonly understood, however.  Most people are afraid that if they declare their wish to remain silent can be used in evidence against them.  It cannot.  The very existence of a right to remain would be meaningless if its use were presented to a jury as prosecution evidence.

So, when someone is read his Miranda Rights, does he just remain silent, and that act of silence constitute the exercise of the right to remain silent?  Some people have thought so.  It could make sense for it to operate that way, but it depends on the courts say.  Now the U.S. Supreme Court has told us, and the answer is no.

Van Chester Thompkins was accused of shooting another man in in Michigan in 2000.  When he was read his Miranda rights, he refused to sign the acknowledgment form which would have given acknowledgment that he understood his rights.   He then remained silent for three hours of police interrogation.  Finally, a police officer asked a few questions of Thompkins, the last one of which which was, “Do you pray to God to forgive you for shooting that boy down?”

Thompkins answered affirmatively to that question, and that response was used as evidence against him at his trial.  He was convicted of first-degree murder.  His appeal of that conviction found favor at the U.S. Court of Appeals for the Sixth Circuit in Cincinnati.  That court agreed Thompkins’ response should have been excluded as protected speech under the Fifth Amendment right to remain silent on the rationale that the prosecution could not prove Thompkins had knowingly and voluntarily waived his right.

After winning that round, however, Thompkins lost the final round at the U.S. Supreme Court in the decision entitled Berghuis v. Thompkins.  In a 5-4 decision, Justice Kennedy wrote that decisions from the Court issued since the Miranda decision had diminished the language of the original Miranda decision.  A more sensible rule, Justice Kennedy wrote, would be to put the burden on suspects to invoke their rights, affirmatively.   “A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,” Justice Kennedy stated.

Justice Kennedy was joined by Chief Justice John Roberts, Justices Scalia, Thomas and Alito in the opinion.  Justice Kennedy said that someone who knew their rights and acted “in a manner inconsistent with their exercise might be presumed to have waived their rights.  The point he made was that responding to police questioning is itself an implied waiver of the right to remain silent.

But Justice Sotomayer in her dissenting opinion, then picked up that point from the majority opinion and questioned it as a paradox.  “A suspect who wishes to guard his right to remain silent must, counterintuitively, speak.”

She went on in her dissent, joined by Justices Stevens, Ginsburg and Breyer, to urge that the principles in the majority’s decision “flatly contradict” earlier decisions from the Court.  She said the better practice when faced with ambiguous responses from a suspect, as in this case, would call for the police to ask follow-up questions like, “Do you want to talk to us?”

When you are arrested, you have the right to remain silent. Everyone knows that.  But if you simply maintain silence, the police can continue to question you until you finally talk.  That is the recent ruling from the United States Supreme Court.  If you want to protect your right to remain silent, you must, interestingly, speak up to assert that right.

In the case of Berghuis versus Thompkins, the Supreme Court decided by a vote of 5-4 in a split along well-known ideological lines not to suppress the statements of a suspect who incriminated himself after 3 hours of police interrogation.  Justice Anthony Kennedy wrote the majority opinion which decided that courts need not suppress statements made by defendants who receive the “Miranda” warning and do not expressly waive their rights and speak only after remaining silent through hours of interrogation.  Justice Sonia Sotomayor wrote her first major dissent.  She wrote that the majority’s decision “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.”

The case involved a Michigan man, Van Chester Thompkins, accused of shooting a man to death in 2000.  He was arrested a year later and read his Miranda rights.  He refused to sign a form to acknowledge he understood his Miranda rights.  He then sat through three hours of interrogation, silent.
Then, after two hours and forty-five minutes into the interrogation, Thompkins answered with the answer, “yes,” to three questions: “Do you believe in God?” “Do you pray to God?”  “Do you to pray to God to forgive you for shooting that boy down?”  His answer to the last question was introduced as evidence against him at his trial, at which he was convicted of murder in the first degree.  The U.S. Court of Appeals had ruled that statement should have been excluded because the prosecution could not prove Thompkins did not knowingly and voluntarily waive his right to remain silent, and it was that decision the U.S. Supreme Court reversed.

The famous 1966 U.S. Supreme Court decision of Miranda versus Arizona ruled that a “valid waiver will not presumed from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”  It also said the government faced a “heavy burden” in trying to prove that a suspect’s waiver was knowing and intelligent.
Justice Kennedy in Berghuis acknowledged that “some language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement.”  Justice Kennedy then said that decisions Miranda have diminished its language, and a more sensible rule put the burden on suspects to invoke their rights.

“A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,” Justice Kennedy wrote.   He said that people who knew their rights and acted “in a manner inconsistent with their exercise’ might be presumed to have waived their rights, meaning that responding to police questioning in itself an implied waiver of the right to remain silent.”  As criminal defense lawyers know, just because the Miranda rights are read, many suspects do not understand their rights;  They often have the impression that is not really a right which they can actually invoke.
Justice Kennedy was joined in the majority opinion by Justices Antonin  Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts.

Justice Sotomayer’s dissent pointed out the majority opinion created a paradox.  “A suspect who wishes to guard his right to remain silent must, counterintuitively, speak.”  She said the principles flatly contradict earlier decisions from the court.  “At best, the court today creates an unworkable and conflicting set of presumptions.  At worst, it overrules sub silentio an essential aspect of the protections Miranda has long protected.”  She was joined in her dissent by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.