Upset by this week’s Miranda decision? Get over it.


So yesterday, the Supreme Court ruled 5-4 in Berghuis v. Thompkins (opinion here) that you need to actually tell the cops that you’re invoking your right to remain silent, if you want them to stop asking questions (or at least not be able to use your subsequent responses against you).  Merely remaining silent isn’t the same as invoking the right.

This, of course, got all kinds of clever responses in the media, along the lines of “to invoke your right to remain silent, speak up!”  Very witty, we agree.

But we have to say, this decision is not that big a deal.

Our immediate reaction on reading the slip opinion, right when it came out, was “yeah, that sounds about right.”

We headed over to court for a case later that morning, and while we were sitting in chambers with some other defense lawyers and prosecutors, we summed up the Court’s decision.  The immediate reaction of literally everyone in the room was “yeah, that sounds about right.”  The judge’s law secretary added “isn’t that already how we do it here in New York?”

Later in the day, we discussed the case with some defense types who are fairly well-known for their pit-bull approach to the law.  Their immediate reaction was “yeah, that sounds about right.”


Here’s how we see it, in a nutshell:

There’s a difference between exercising your right to remain silent, and invoking it.  Exercising it means you’re keeping your trap shut.  (A sound policy, and one we heartily recommend.)  Invoking your right, however, means you’re giving the authorities a clear signal that that they can’t ask you any more questions.  You’re taking the Fifth.

When cops read you your rights from one of those Miranda cards, they typically end with the waiver questions.  When they ask “do you wish to talk to us now,” and you say nothing, you haven’t answered the question.  But if you say “NO,” then you have invoked your right to remain silent.

The dissent, and many critics we’ve been reading lately, say it’s obvious that someone who’s kept his mouth shut for three hours, as in this case, is someone who has clearly invoked his right to remain silent.  At some point, his exercise of his right should have indicated to the cops that he was actually invoking it.

But at what point, exactly?  There’s no obvious demarcation line here.  It clearly can’t be that silence in response to the very first questions counts as an invocation of the right.  That would be stupid.  Mere silence cannot be enough.  And silence is all we had here — there’s no point where the suspect told the cops to stop asking questions.  He allowed them to ask, and just said nothing for a while.

But aha! it’s not just mere silence — it’s silence plus time!  At some point, enough time has passed that any cop with sense would know he ought to stop asking questions.

That’s also not very helpful.  At what point, exactly, does mere silence convert into a constructive invocation of the right?  If cops can’t figure this out pretty clearly, there’s not going to be any point in having the rule to begin with.  And deciding it after the fact, on a case-by-case basis, is just an incentive for cops to go too far in the first place, and let the judges sort it out later, if the case even gets that far (which most don’t).

The cops do need to know how far they’re allowed to go.  That’s how the exclusionary rule works.  We don’t punish cops for crossing the line, because they’ll never go near it, and society will lose out on evidence that could properly have been used.  All we do is take away the evidence they shouldn’t have gotten.  That prevents the government from securing a conviction through violating your rights, but also allows the government to gather and use all the evidence it can lawfully obtain. 

But if the cops don’t know where the line is, the exclusionary rule breaks down.  They’ll shy away from some lawful evidence, in one case.  In another case, they’ll go way over the line, and only find out after the hearing that they did it wrong.

So if you haven’t invoked your right to remain silent, but instead are just exercising it and keeping quiet, there’s no obvious point at which a reasonable person would think the cops shouldn’t be allowed to ask any more questions.


We have to interject here, to quote a great line from James Taranto that we just read while taking a coffee break (link here):

There’s something screwy about Sotomayor’s logic.  The court did not hold that Thompkins could be compelled to speak, only that he had to speak up in order to exercise his right to end the interrogation, which is a corollary to the right to remain silent.  Having failed to do so, he still had every right to remain silent — a right he could easily have exercised by remaining silent.

Snarky, but sound.


So what did the majority actually say here?  Let’s summarize:

Miranda deals with two rights — the right to counsel, and the right against compelled self-incrimination.

If a suspect invokes either right, the interrogation must cease.

There wasn’t any rule, really, about how to invoke the right to remain silent.  But the Davis rule has long been that the right to counsel must be invoked “unambiguously” and “unequivocally” to make the police stop questioning.  That avoids difficulties of proving whether it had been invoked in less clear circumstances.  And it gives guidance to officers on what they can and cannot do in a given situation.

There’s no reason why the same reasoning shouldn’t apply for a rule about invoking the right to remain silent.  If it’s unambiguous and unequivocal, then the cops have to stop asking questions.  If the circumstances are iffy, then the cops can keep asking.

Thompkins exercised his right to remain silent for three hours, but he never invoked it.

When a person has been mirandized, and he has neither invoked nor waived his rights, the police are allowed to question him.  The police don’t need an express or implied waiver first, before they’re allowed to interrogate.  And even if the suspect has given an express waiver, or implied one by answering questions, all the suspect has to do is invoke his rights and the interrogation must stop.

A waiver can be inferred from the circumstances, but an invocation has to be clear.

When Thompkins did eventually speak to the police, there was no reason to believe he did so involuntarily.  There was no reason to believe he wasn’t aware of what he was doing, and the consequences.  There was no coercion.  He could have continued to remain silent if he so desired.  He understood his rights, and now made a voluntary choice to waive his right to remain silent. 


That’s pretty much it, for the Miranda portion of the decision.  All they did, really, was clarify an open area of law, in a manner consistent with the existing rules.  They didn’t suddenly turn Miranda on its head, no matter what the dissent says.  All the majority did was fill in a gap in Miranda using the same policy and reasoning as for the rest of it.

So yeah, that sounds about right.

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1 Response

  1. lindsay says:

    great summary! i Agree

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