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When does a suspect waive his right to remain silent?

Below, Ray Seilie of Harvard Law School recaps Monday’s oral argument in Berghuis v. Thompkins.  Ray’s preview of the case is available here.  Check the Berghuis v. Thompkins (08-1470) SCOTUSwiki page for additional updates.

During Monday’s oral argument in Berghuis v. Thompkins, the Court focused on delineating when a suspect in custody can be considered to have impliedly waived his Fifth Amendment right to remain silent by failing to affirmatively assert the right.

Arguing on behalf of the state, Michigan Solicitor General Eric Restuccia began by emphasizing the Court’s decision in North Carolina v. Butler, in which the Court held that a suspect could impliedly waive his Miranda rights by remaining silent after he received the appropriate warnings.  The Justices then wrestled primarily over the question whether Thompkins’s silence, followed by his response to the officers’ questions, constituted a waiver of his right to remain silent or instead a failure to assert that right.  Justice Ginsburg suggested that the case was distinguishable from Butler, in which the suspect had explicitly declared that he would talk to the police; by contrast, in this case Thompkins had remained silent for over two hours before he eventually responded to the officer’s questions.  These facts, Justice Sotomayor posited, suggested that Thompkins had neither invoked nor waived his rights.  Mr. Restuccia countered, however, that Thompkins had waived his rights when he answered the questioning officer.

The Justices then turned to the reasonableness of the Michigan courts’ determination that Thompkins’s conduct constituted an implied waiver.  Justice Scalia seemed comfortable with a rule that would require police to simply warn a suspect and then shift the burden to the suspect to ask that questioning be stopped.  By contrast, Justices Breyer and Sotomayor resisted Mr. Restuccia’s suggestion that Thompkins’s silence was enough to constitute an implicit waiver of his right to remain silent.

Arguing on behalf of the United States as an amicus supporting Michigan, Assistant to the Solicitor General Nicole Saharsky emphasized that Miranda requires only that a suspect’s decision to talk to police be “knowing, intelligent, and voluntary.”  Although she conceded that prosecutors bear the burden of demonstrating a waiver, she suggested that the totality of circumstances surrounding Thompkins’s admission sufficed to justify its introduction at trial.

Arguing on behalf of Van Chester Thompkins, Ms. Elizabeth Jacobs began by attempting to distinguish Butler, which she characterized as a case that focused more on the right to counsel.  Thus, she maintained, Butler’s implied waiver holding does not necessarily extend to the right to remain silent.  When pressed by Justice Scalia about whether the Court’s cases clearly establish that interrogations cannot continue in the absence of a waiver, Ms. Jacobs countered that in any event the facts in this case did not demonstrate a waiver.

Jacobs then shifted her focus to the facts of the case.  She suggested that the evidence did not demonstrate that Thompkins either wanted questioning to continue or that his eventual response was voluntary.  Seizing on one of Justice Breyer’s earlier lines of questioning, Ms. Jacobs initially emphasized that the length of time between the delivery of the Miranda warnings and Thompkins’ eventual response suggested that the interrogation might have been coercive, only to retreat from this line of reasoning when Justice Kennedy suggested that the length of time was, in fact, irrelevant to the case.  Throughout Ms. Jacobs’s argument, Chief Justice Roberts and Justice Scalia emphasized that under AEDPA, Thompkins could only obtain reversal of his conviction if the state court’s interpretation of Miranda was unreasonable.  And although Justice Scalia acknowledged that the rule suggested by Ms. Jacobs was plausible, he seemed hesitant to agree that Michigan’s approach was unreasonable.

In his brief rebuttal, Mr. Restuccia emphasized that Miranda did not prohibit interrogations before the waiver.  When pressed by Justices Breyer and Stevens regarding the precise point at which Thompkins had waived his rights, Mr. Restuccia suggested that Thompkins should have invoked his rights more clearly if he had wanted to be left alone.  He concluded by reminding the court that the factual record established by the Michigan courts was entitled to deference under AEDPA.