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Analysis: Tilting Miranda toward the police


More than four decades after the Supreme Court ordered police to warn suspects about their rights before questioning them, the actual day-to-day practice has not turned out to be a simple ritual under clear ground rules.  Encounters in interrogation rooms still and often are a test of wills, with detectives trying to get answers and suspects trying to avoid talking themselves into deeper trouble.  As a result, the Court often has had to reinterpret its 1966 decision in Miranda v. Arizona.  It did so again on Tuesday, and this time the result decisively tilted the warnings procedure toward the police.

By a 5-4 vote, the Court for the first time made two things clear about Miranda rights: first, if a suspect does not want to talk to police — that is, to invoke a right to silence — he must say so, with a clear statement because it is not enough to sit silently or to remain uncooperative, even through a long session; and, second, if the suspect finally answers a suggestive question with a one-word response that amounts to a confession, that, by itself, will be understood as a waiver of the right to silence and the statement can be used as evidence.  Police need not obtain an explicit waiver of that right. The net practical effect is likely to be that police, in the face of a suspect’s continued silence after being given Miranda warnings, can continue to question him, even for a couple of hours, in hopes eventually of getting him to confess.

Those two declarations emerged in Berghuis v. Thompkins (08-1470), a Michigan drive-by shooting case.  Van Chester Thompkins, Jr., of Southfield, Mich., was convicted of murder, assault, and several firearm charges, and is serving life in prison without parole.  On Tuesday, the Court ruled that his Miranda rights had not been violated, and thus reaffirmed his conviction and sentence.  (In a separate part of the ruling, the Court also rejected a claim that his defense lawyer was ineffective in failing to seek a jury instruction to limit the damaging testimony of another man involved in the crime.)

Justice Anthony M. Kennedy wrote for the majority, joined by the Court’s four most conservative members, Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas.  Justice Sonia Sotomayor wrote a strongly worded dissent, accusing the majority of deciding the case more sweepingly than it needed to do and of carrying out “a substantial retreat from the protection” given by the Miranda decision.

Although the majority clearly intended to use this case to make broad new declarations about Miranda rights, the specific facts case gave them the opportunity to do so.  Thompkins, captured in a neighboring state more than a year after the January 2000 shooting in Michigan, was questioned by two detectives in a county jail for close to three hours.  At the beginning, they warned him about his rights, and asked him to read part of the list out loud, to make sure he understood English.  But he refused to sign the form, showing he understood his rights.  There is a dispute about whether he ever was asked orally whether he understood the warnings.

The detectives went ahead with the questioning, and, they said later, it was almost completely one-sided: the officers did almost all of the talking.  A few of his answers were single words.  Near the end of the questioning, one officer asked whether Thompkins believed in God.  Tears welled up in Thompkins’ eyes as he said “Yes.”  The officer then asked: “Do you pray to God?” Again, the suspect said “Yes.”  The officer then asked: “Do you pray to God to forgive you for shooting that boy down?” Thompkins said “Yes,” and then looked away.   He refused to make any written confession, and the questioning stopped after about three full hours.

That one-word confession to the crime was used at Thompkins’ trial, and he was convicted.   After state courts upheld the conviction, Thompkins pursued a challenge in federal courts, ultimately winning in the Sixth Circuit Court, which ruled that Thompkins had not waived his right to silence, finding his persistent silence through the prolonged interview indicated he did not want to waive his rights.  (It also ruled in his favor on the ineffective lawyering claim.)

The Supreme Court divided its ruling into two segments: one interpreting how a suspect invokes the right to silence under Miranda, and one interpreting how a suspect can accomplish a waiver of that right.

Turning back to a 1994 ruling, in Davis v. U.S., where the Court had said that a suspect must make clear without ambiguity when he wants to claim the right to counsel after getting Miranda warnings, the Court laid down the same rule for claiming the right to silence under Miranda. There is no reason to treat those two rights differently, Justice Kennedy wrote.  If a suspect could invoke the right to silence by simply staying silent, or by some other “ambiguous act, omission, or statement,” that could complicate the dealings with police and require the officers to make difficult decisions about what the suspect actually intended, and run the risk of guessing wrong.

In this case, the Court concluded, it was decisive that “Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police.”  (Justice Sotomayor, in dissent, criticized that conclusion as indicating that the Court was not mandating that suspects in police custody used some form of “magic words” in order to claim their right not to give evidence against themselves. She also wrote that police were not likely to advise the suspect about what words he might use to claim that right.)

Turning to the question of how a suspect gives up the right to silence, by “waiving” it, the Court majority concluded that police need only give the warnings and then satisfy themselves that the suspect understood his rights; they are not required, at any point in the interview, to obtain an explicit waiver from the suspect.  Thus, the questioning can go on (the Court did not say how long it could continue, though this case involved about three hours overall) unless the suspect, at some point, explicitly and without ambiguity invokes the right to silence.  If the suspect continues to remain silent or uncooperative, police may then use a strategy to try to get the suspect, at last, to confess.

In this case, the Court found that, once Thompkins had said “Yes” to the question about praying to God for forgiveness for the shooting, he engaged in “a course of conduct” that indicated he was surrendering the right to silence with that confession.  “If Thompkins wanted to remain silent, he could have said nothing in response to [the detective’s] questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation,” Justice Kennedy wrote.  (Justice Sotomayor, in dissent, clearly regarded this part of the Court’s ruling as more important even than its decision on how to invoke the right to silence.  The dissenting opinion said that the waiver ruling ran counter to decades of the Court’s precedents making clear how heavy a burden prosecutors faced when trying to convince courts that a suspect had given up the right to silence.)

The one theme underlying both parts of the opinion for the majority was that the detectives here had given Thompkins his Miranda rights, and had validly determined that he understood them.  After that, the Court made clear, the way the interrogation went — or stopped — depended upon choices that Thompkins had available to him.  Failing to explicitly invoke his right to silence, and given it up by briefly confessing, Thompkins opted to give evidence against himself, according to the ruling.

Although it probably will take years for police to decide how, in the real world, and whether, in fact, they want to take advantage of the new ruling, one curious facet of the decision as it emerged was that a number of police manuals do explicitly require more of questioning officers than the Court’s decision now does.  Many of those manuals, it appears, tell police that they should not do any questioning at all until they have obtained an explicit waiver of the suspect’s rights.  It is now clear that that is not constitutionally required.