Do we have to talk in order to remain silent?

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In the recent case of Berghuis v. Thompkins [560 U.S.____(2010) (docket 08-1470)] the U.S. Supreme Court ruled five to four that persons being interviewed by the police are required to articulate their answers to the Miranda warning that they have the right to remain silent. The case originated when Van Chester Thompkins was being questioned about a shooting in which one person was killed. Instead of invoking his Miranda right to remain silent, Thompkins simply remained silent, which is what the warning seemed to be allowing him to do. In fact, he remained silent through two hours and forty-five minutes of questioning, at which point the detective asked him if he believed in God and prayed, to which Thompkins spoke for the first time, saying "yes." The detective then asked him, "Do you pray to God to forgive you for shooting the boy down?" Thompkins again answered "yes," but refused to produce a written statement.

Thompkins was convicted and his appeal was denied by the Michigan Court of Appeals. The U.S. Court of Appeals for the Sixth Circuit, however, reversed the appellate court's decision and ruled in favor of Thompkins. The case then went to the U.S. Supreme Court, where Justice Kennedy, writing for the majority, opined that Thompkins' mere silence in the face of questioning was not a clear and unambiguous invocation of his right to remain silent.

Thompkins' lawyers argued that his statement should be suppressed because he had never adequately waived his right to remain silent. In contrast, the Supreme Court argued that his "yes" to the religious questions was not coerced and it established an implied waiver of his right to remain silent. In Justice Kennedy's words, "simply presuming an invocation after some initial period of silence…would override the wishes of those  suspects who wanted to listen and deliberate further, rather than to end the questioning." In short, by being silent during the interrogation Thompkins did not invoke his right to remain silent, but he waived his right when he said "yes" to the detective's questions about religion. Kennedy added that the accused are required to talk in order to indicate their unwillingness to talk. The Court relied on the earlier decision in North Carolina v. Butler [441 U.S. 369], which ruled that a waiver of Miranda rights may be implied through the defendant's silence. Apparently however, an invocation of these rights can not be implied.

Justice Sotomayer wrote the dissenting opinion, saying (1) that it is counterintuitive for defendants to speak after they are told they have the right to remain silent, (2) that in such cases detectives should presume that the suspects have invoked their rights to silence when they remain silent for almost three hours of questioning, and (3), citing Miranda: "…the fact that an individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege."

In this case, five Supreme Court justices agreed that Thompkins' silence implied his waiver of rights, supporting this ruling with the Butler case that said essentially the same thing. In their dissenting opinion four Supreme Court justices agreed that Thompkins' silence during all but the last fifteen seconds of the interrogation implied that he had actually invoked his right to remain silent. The nine justices also were split on how to imply meaning about what constitutes being coercive or voluntary. But aside from these issues, it would seem that things need to be clarified about what the Miranda warning's right to remain silent really means. And how long do suspects have to continue their silence until detectives can infer that this was the suspects' intention? And how can suspects who are unfamiliar with the niceties of the interrogation speech event know that breaking silence on a topic unrelated to the interrogation constitutes a waiver of their right to remain silent about the substantive issues and questions of the interrogations? Then there is also Justice Sotomayer's nagging question about the logic of a rule specifying that the only way to remain silent is to break the silence by responding with an answer.

I am not suggesting that Thompkins was innocent of this crime, for he did say that he'd pray that God would forgive him for killing the boy, and I understand that there also was other evidence indicating his guilt. But the Court's meandering path about Miranda raises some serious questions.

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