Vol. 25 No. 10 – Another New Miranda Decision: Suspects Must Speak Up In Order To Remain Silent


June 3, 2010

On June 1, 2010, the United States Supreme Court handed down another major decision regarding the procedure established in the 1966 case of  Miranda v. Arizona.  [See Jones & Mayer Client Alerts, Vol. Twenty-five, No. 4 (3/1/10) and Vol. Twenty-five, No. 8 (4/20/10) for the two prior decisions.]

In a 5 – 4 decision, the Court held, in the case of Berghuis v. Thompkins, that a suspect’s ” . . . silence during the interrogation did not invoke his right to remain silent.  A suspect’s Miranda right to counsel must be invoked unambiguously.  If the accused makes an ‘‘ambiguous or equivocal’’ statement, or no statement, the police are not required to end the interrogation, or ask questions to clarify the accused’s intent.”


The Court noted that in the past the government had the burden of showing that a suspect had “knowingly and intelligently waived” his or her right to remain silent. Now, the Court ruled, a suspect must speak up and specifically state that he or she doesn’t want to talk and/or wants an attorney present.  If the suspect does not make such statements, the police can continue with questioning the person.  Additionally, the Court held that police are “not required to obtain a waiver” of the suspect’s “right to remain silent before interrogating him.”

“The unambiguous invocation requirement (of the right to remain silent or for an attorney to be present) results in an objective inquiry that ‘‘avoid[s] difficulties of proof and … provide[s] guidance to officers’’ on how to proceed in the face of ambiguity.  Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning.  He did neither.”

Thompkins was being questioned about the shooting of two men, one of whom died as a result.  He was interrogated for almost three hours and said virtually nothing in response to questions.  However, when the detective asked him if he believed in God and if he prayed “to God to forgive you for shooting that boy down,” Thompkins said “yes.”  He refused to say anything else, or to sign a confession, but was convicted of murder based on that one word answer.

The Sixth Circuit U. S. Court of Appeals overturned the conviction on the grounds that the use of the answer, after his remaining silent for a long period of time, violated his right against self incrimination under Miranda.  The Supreme Court reversed on the basis that he never invoked his rights and, therefore, the ongoing questioning did not violate his right to remain silent.


“Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police,” wrote Justice Anthony Kennedy for the majority.  In order to invoke the right to remain silent, the suspect must “do so unambiguously.”

The Court held that, “if the State establishes that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver.  The record here shows that Thompkins waived his right to remain silent.”  Furthermore, said the Court, “. . . his answer to the question about God is a ‘‘course of conduct indicating waiver” of that right.  Had he wanted to remain silent, he could have said nothing in response or unambiguously invoked his Miranda rights, ending the interrogation.  That he made a statement nearly three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver.”


As noted above, this is the third major change to the Miranda decision and how it should be applied.  The first decision (Maryland v. Shatzer) allowed police to initiate contact with a suspect who had already invoked Miranda and reinterrogate him, under certain circumstances.

The second case (Florida v. Powell) held, basically, that there are no “magic” words which must be used when advising a suspect of his or her rights under Miranda.  There is a burden on law enforcement, however, to show that the suspect understood what those rights were.

And now, the Court has ruled that the burden is not on law enforcement to secure a waiver of rights but, rather, the suspect must “unambiguously” invoke those rights.

These decisions have altered the procedures which have been in place for over forty (40) years but must be applied carefully.  There is no doubt that challenges will be lodged when, for example, police continue questioning a suspect after providing Miranda warnings, or don’t use the standard language, or reinterrogate someone after that person invoked the right to remain silent, and then the police secure a confession.  It is always advisable to prepare for the “worst case scenario” and be able to prove that all which must be done, was done.

As with most legal matters, it is imperative in these situations that law enforcement seek out, and receive, advice and guidance from its designated legal counsel in order to insure that all rights are afforded suspects, thereby protecting all key evidence, including confessions.

As always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.