The Journal of The DuPage County Bar Association

Back Issues > Vol. 23 (2010-11)

You Have the Right to Remain Silent: But You Better Speak Up!
By Matthew Dowd

In 1966, the United States Supreme Court articulated the now well-familiar warnings police officers must administer before interrogating the accused in Miranda v. Arizona.[1] It did so in an attempt to protect the citizens’ right against compelled self-incrimination under the Fifth Amendment, which states: “No person shall... be compelled in any criminal case to be a witness against himself....”[2] The Court explained that law enforcement officers, before a custodial interrogation, must, inter alia, inform the accused that they have the right to remain silent and that they have the right to talk to a lawyer.[3] These mandatory guidelines, though distinct, each protect the accused’s Fifth Amendment right against self-incrimination. Once the accused invokes either of these rights, the interrogation must cease unless and until the accused waives his rights and independently commences the interrogation on his own accord.[4]

Miranda, however, did not articulate what exactly is required for effective invocation of these rights. What act, statement, or omission constitutes a valid invocation of the right against self-incrimination that mandates the end of the interrogation? In Davis v. United States, the Supreme Court determined that the accused must make an “unambiguous” statement in order to invoke the right to counsel.[5] But does this “unambiguous” requirement apply in the context of invoking the right to remain silent? Can the accused merely remain silent to invoke his right to remain silent? According to the recent - and ironic - Supreme Court decision in Berghuis v. Thompkins, silence is not enough.[6] The Thompkins Court held that in order for the accused to invoke his right to remain silent, he must do so in an unequivocal and unambiguous manner.[7]

Thompkins, relying heavily on Davis, emphasized that its holding would “avoid difficulties of proof and... provide guidance to [law enforcement] officers.”[8] Moreover, the Court concluded that “an ambiguous... omission... could require police to end interrogation [and police would be] required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression ‘if they guess wrong [as to whether the accused properly invoked his right to remain silent].’”[9] This article contends that the Thompkins Court laxidasically adopted the narrow holding in Davis, which only addressed effective invocation of the right to counsel, without its own, independent, analysis regarding proper invocation of the right to remain silent. Even though each right offers the accused separate avenues toward the same protection against self-incrimination, they are effectively distinct and require a separate analysis. To support its contention, this article will analyze three Fifth Amendment Supreme Court cases decided after Miranda: Michigan v. Mosley, [10]Edwards v. Arizona,[11] and Davis v. United States.[12]  Finally, this article looks to the reasoning in Davis and underscores Justice Sotomayor’s dissent in Thompkins to find that the majority’s holding in Thompkins is not supported by Miranda or its progeny, and was therefore wrongly decided.[13]

Miranda and its Progeny.  Miranda warnings are necessary to even the scales between police officers and suspected criminals during custodial interrogations, which are unbalanced due to the inherently coercive environment of a custodial interrogation.[14] The Miranda Court reasoned that issuing these warnings prior to custodial interrogations would make it clear to the accused that they have the power to stop questioning at any time, and that they do not have to say anything until the state provides them with legal representation. In so holding, the Court concluded that “[i]f [an] individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.... Any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.”[15] Miranda’s benefit was twofold in that it: (1) gave notice to the accused that they have the right to stop questioning at any time, and (2) added legitimacy to any statements made by suspects during custodial interrogations because it assured courts that the statements were not products of coercion by law enforcement officers. Despite the single right that Miranda set out to protect (i.e., the right against self-incrimination) subsequent Supreme Court jurisprudence established different standards surrounding the right to remain silent and the right to counsel.

In 1975, the Supreme Court in Michigan v. Mosley determined that the interrogation of a criminal suspect need not cease forever after that suspect invokes his right to remain silent.[16] After defendant Mosley invoked his right to remain silent during a custodial interrogation, police officers immediately ceased questioning and released Mosley.[17] Two hours later, however, different police officers approached Mosley about a different crime, Mirandized him, and began another interrogation.[18] This time, Mosley did not invoke his right to remain silent and his subsequent inculpatory statements were admitted against him at trial.[19] In holding that his statements were properly admitted, the Supreme Court emphasized the fact that the police officers administered fresh Miranda warnings; that two hours had passed since his initial invocation, and that different police officers conducted the second interrogation, which involved a different crime.[20] Together, these factors indicated that, in the totality of the circumstances, Mosley’s right to remain silent was “scrupulously honored.”[21]

Six years later, in Edwards v. Arizona, the Supreme Court addressed a similar issue regarding the right to counsel.[22] Defendant Edwards invoked his right to counsel during a custodial interrogation, and questioning immediately stopped.[23] He was placed in a holding cell overnight, and the next day two different detectives began interrogating him once again.[24] This time, Edwards did not invoke his right to counsel and he made incriminating statements that were admitted at his trial.[25] The Supreme Court agreed that his incriminating statements must be suppressed because they were elicited in violation of Edward’s Fifth Amendment right against self-incrimination, as he had already invoked his right to counsel.[26] The Court developed new standards surrounding the right to counsel; namely, that an accused who has invoked his right to counsel can only be interrogated if counsel is present or if the suspect “initiates further communications, exchanges, or conversations with the police.”[27]

In 1994, the Supreme Court in Davis v. United States addressed whether ambiguous or equivocal statements regarding a right to counsel by a criminal suspect constitutes proper invocation of the right to counsel under the standards set out in Edwards.[28] Defendant Davis was a member of the United States Navy and was suspected of murdering another sailor after a game of pool.[29] Prior to Davis’s interview with the Naval Investigative Service (NIS), he was fully Mirandized and provided a written and oral waiver of his rights.[30] About an hour and a half into the interview, defendant said, “Maybe I should talk to a lawyer.”[31] The NIS agents then stopped questioning defendant and asked him to clarify, and defendant responded, “No, I don’t want a lawyer.”[32] His inculpatory statements that followed were admitted against him at his murder trial, and he was later convicted.[33] In holding that the statements were properly admitted, the Davis Court emphasized that the defendant had furnished a valid waiver of his rights, and that “he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect.”[34] Indeed, Davis’s narrow holding was largely predicated on the defendant furnishing a Miranda waiver: “We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.”[35]

Moreover, the standards set out in Mosley, Edwards, and Davis are completely consistent with the reasoning in Miranda, which “distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney.”[36] Edwards effectively mandated higher standards for police conduct surrounding the right to counsel than the standards for police conduct surrounding the right to remain silent in Mosley. The Edwards Court only permitted police interrogation after a suspect invoked his right to counsel if: (1) the suspect was actually provided with counsel, or (2) the suspected independently initiated communications with the police.[37] The Supreme Court eventually recognized that this categorical bar on police interrogation after invocation of right to counsel necessitated higher standards for actually invoking that right in Davis (i.e., clear and unambiguous).[38] The higher standard, in turn, eliminated “irrational obstacles” in effective police investigation, as police would not be barred from questioning suspects after an unclear or ambiguous statement regarding the right to counsel. The Mosley Court, however, provided for a more relaxed standard surrounding interrogation after a suspect invoked his right to remain silent, which required that invocation to be “scrupulously honored” under a totality of the circumstances analysis. [39]In this context, effective police investigation would not be thwarted because there is no categorical bar on police interrogation after the right to remain silent has been invoked; meaning police are given somewhat more flexibility in their interrogation conduct even after a proper invocation of the right to remain silent.

Miranda’s progeny classified the right to remain silent and the right to counsel to such an extent that the question of “what constitutes effective invocation of the right to remain silent” appeared to have an obvious answer: any unclear or ambiguous statement that suggested the accused was invoking his right to remain silent must be “scrupulously honored,” and the interrogation must end. However, when the Supreme Court finally addressed the issue, no such answer was found.

The Holding in Berghuis v. Thompkins.[40]  On January 10, 2000, a shooting took place outside of a shopping mall in Southfield, Michigan leaving one dead and another injured. Van Chester Thompkins, who was a suspect in the shooting, fled the scene and was found in Ohio one year later. There, he was arrested and taken into police custody. After the arrest, Thompkins was placed in a room where he awaited his transfer back to Michigan. Two Michigan police officers traveled to Ohio to interrogate Thompkins before his transfer. Before the interrogation began, the officers gave Thompkins a sheet of paper that stated in full his rights under Miranda, including his right to remain silent.

The three hour interrogation that followed was largely “one-sided” and “nearly a monologue,” as Thompkins remained almost completely silent for its duration. Thompkins’s only communicative conduct throughout the first two hours and forty-five minutes was limited: “To the extent Thompkins gave any response, his answers consisted of ‘a word or two. A yeah, or a no, or I don’t know... And sometimes... he simply sat down... with [his] head in [his] hands looking down. Sometimes... he would look up and make eye-contact would be the only response.’” Toward the end of the interrogation, one officer asked Thompkins if he believed in God, and Thompkins said “yes.” The officer then asked if he prayed to God, and Thompkins said “yes.” Finally, the officer asked “Do you pray to God to forgive you for shooting that boy down?” Thompkins responded “yes.” Thompkins said nothing else and the interrogation ended.

At his trial for first-degree murder, Thompkins made a motion to suppress this incriminating statement claiming that it was elicited after he invoked his Fifth Amendment right against self-incrimination (i.e., his right to remain silent under Miranda). Specifically, Thompkins argued that he invoked this right after he remained silent for a sufficient period of time. The denial of the motion led to his subsequent conviction, and for the first time, the United States Supreme Court addressed the issue of whether the accused’s near silence for three hours during a custodial interrogation was sufficient to invoke his right to remain silent.[41]

The Thompkins Court concluded that Thompkins did not properly invoke his right to remain silent by remaining silent.[42] Justice Kennedy, writing for the majority, found that “there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis.”[43] The Court essentially mandated all criminal suspects make a clear and unambiguous statement regarding their intention to invoke their right to remain silent. Moreover, the Court briefly dismissed Miranda’s “goal of dispelling the compulsion inherent in custodial interrogations,” reasoning that “full comprehension of the rights to remain silent and request [of] an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process.”[44] The Court ultimately adopted the reasoning in Davis which effectively equated the standard for invoking the right to counsel with that of the right to remain silent.[45]

Separate Standards for Separate Privileges. In requiring a clear and unambiguous statement to invoke the right to remain silent, the Thompkins Court ignored the distinct standards between the right to counsel and the right to remain silent that Miranda and its progeny established. Rather, the Court adopted the reasoning in Davis and found that a suspect must make an “unambiguous” statement in order to invoke his “right to cut off questioning.” The “unambiguous statement” requirement from Thompkins diminishes the accused’s Fifth Amendment rights against self-incrimination and empowers the state in the interrogation process. As Justice Sotomayor articulated in her dissent, the Court’s decision was wrong on many levels.[46] Initially, Davis’ narrow holding offers little support to the broad rule that the Thompkins Court set out. In addition, the Thompkin’s Court failed to align itself with Miranda and its progeny, and offer the accused more protection in invoking their right to remain silent. Secondly, the Court’s decision is confusing when viewed in the context of the language of the Miranda warning itself. Finally, a less strict standard has not and will not burden effective law enforcement.

In its holding, the Thompkins Court applied the reasoning in Davis, which involved invocation of the right to counsel, not the right to remain silent: “there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis.”[47] However, there is a principled reason to adopt a different standard, and that reason can be found in Edwards and Davis.

The standards surrounding the right to counsel after Edwards strongly favored the criminal suspect because Edwards categorically banned all questioning after the suspect invoked his right to counsel.[48] In order to alleviate some of this favoritism, the Davis court required a “clear and unambiguous” standard when invoking the right to counsel. [49] This rule conditioned the suspect’s benefit of the Edward’s rule (categorical ban on questioning) with a high standard for invocation (clear and unambiguous statement).[50]  Criminal suspects would only reap the benefits of the categorical ban if they could overcome the initial “clear and unambiguous” statement hurdle for invocation.[51]

Prior to Thompkins, the standards surrounding the right to remain silent favored the state. As articulated by the Mosley court, the issue of whether the police “scrupulously honored” a suspect’s right to remain silent will be analyzed under the “totality of the circumstances.”[52] This standard favors the state because there is room to argue that any questioning after the right to remain silent has been invoked was reasonable under the circumstances. Under Davis’s reasoning, therefore, the suspect should be afforded more protection regarding the invocation of that right in order to balance the scale between the state and the suspect during the interrogation. As Davis recognized, this would be in accord with Miranda’s purpose, which was to protect the accused during interrogations.

Instead, the Thompkins Court gave even more power to the state during custodial interrogations than it already had after Mosley. By requiring criminal suspects to unambiguously invoke their right to remain silent, the Court took one step backwards from Miranda. Criminal suspects now must invoke their right to remain silent through an unambiguous statement, and survive any arguments by the state that questions after this invocation were reasonable under the circumstances.

In addition, the plain language of the Miranda rights do not suggest that the accused must invoke their right to silence through a statement. As Justice Sotomayor properly pointed out in her dissent, “advising a suspect that he has a ‘right to remain silent’ is unlikely to convey that he must speak (and must do so in a particular fashion) to ensure the right will be protected.”[53] On the other hand, “telling a suspect ‘he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires’ implies the need for speech to exercise that right.”[54] In this regard, the Davis decision regarding the right to counsel makes sense when looked at through the lens of Miranda, whereas the Thompkins decision adds confusion to a straightforward rule.

Moreover, the Thompkins decision was, in part, based on fear that a rule requiring something less than an unambiguous statement might lead to the police having to make “difficult decisions about an accused’s unclear intent” and “fac[ing] the consequences of suppression ‘if they guess wrong.’”[55] However, this argument ignores what would likely take place if the accused makes such an ambiguous statement. “If a suspect makes an ambiguous statement or engages in conduct that creates uncertainty about his intent to invoke his right, police can simply ask for clarification.”[56] A clear example of this is found in Davis, when the defendant said “Maybe I should talk to a lawyer.”[57] The NIS agents then asked the defendant to clarify his answer, and the defendant eventually made a clear and unambiguous statement: “No, I don’t want a lawyer.”[58] The Thompkins’ Court ignores this type of reasoning, and instead permits law enforcement officers to continue to question a suspect until the statement is clear and unambiguous.

Conclusion.  Ultimately, the Thompkins decision undermined Miranda’s intent to dispel the compulsion inherent in custodial interrogations. The Court failed to recognize the state’s advantageous position over criminal suspects regarding the right to remain silent. The Court maintained that criminal suspects must make an unambiguous statement to properly invoke their right to remain silent merely because the same standard applied to invoking the right to counsel. Thompkins essentially gives the state more power over criminal suspects in the interrogation process while ignoring Miranda’s attempt to even the playing field between criminal suspects and law enforcement officers. Moreover, the Court’s holding is off-base because the Miranda warnings themselves do not suggest that a criminal suspect must speak to invoke their right to remain silent, unlike the right to counsel. Finally, the Court improperly dismissed a lower standard for invocation because it would be too burdensome on law enforcement officers without analyzing the practical effects of such a rule.

Finally, in her dissent, Justice Sotomayor alluded to the peculiar nature of the majority’s holding. After addressing the “clear statement” rule in Davis, she cited to a federal circuit opinion that, perhaps, summed up the issue best with a single question: “What in the world must an individual do to exercise his constitutional right to remain silent beyond actually, in fact, remaining silent?”[59] 

[1] Miranda v. Arizona, 384 U.S. 436 (1966).
[2] U.S. Const. amend. V.
[3] Miranda, 384 U.S. at 479.
[4] Id. at 473-74.
[5] Davis v. United States, 512 U.S. 452, 459 (1994).
[6] Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).
[7] Id. at 2259-60.
[8] Id. at 2260 (quoting Davis v. United States, 512 U.S. at 458-59).
[9] Id. (emphasis added) (quoting Davis v. United States, 512 U.S. at 461).
[10] Davis v. United States, 512 U.S. 452 (1994).
[11] Edwards v. Arizona, 451 U.S. 477 (1981).
[12] Michigan v. Mosley, 423 U.S. 96 (1975).
[13] Thompkins, 130 S. Ct. at 2266-2275 (Sotomayor, J., dissenting).
[14] Moran v. Burbine, 475 U.S. 412, 425 (1986).
[15] Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).
[16] Michigan v. Mosley, 423 U.S. 96 (1975).
[17] Id. at 97.
[18] Id. at 98.
[19] Id. at 98-99.
[20] Id. at 104-05.
[21] Mosley, 423 U.S. at 104.
[22] Edwards v. Arizona, 451 U.S. 477 (1981).
[23] Id. at 479.
[24] Id.
[25] Id. at 479-80.
[26] Id. at 485.
[27] Id.
[28] Davis v. United States, 512 U.S. 452 (1994).
[29] Id. at 454.
[30] Id. at 455.
[31] Id.
[32] Id.
[33] Davis v. United States, 512 U.S. 452, 455 (1994).
[34] Id. at 459, citing Moran v. Burbine, 475 U.S. 412, 433  n.4 (1986).
[35] Id. at 461.
[36] Thompkins, 130 S.Ct. at 2275 (Sotomayor, J., dissenting), quoting Michigan v. Michigan, 423 U.S. at 104, n.10.
[37] Edwards, 451 U.S. at 485.
[38] Davis, 512 U.S. at 452.
[39] Mosley, 423 U.S. at 104.
[40] See Thompkins 130 S. Ct. at 2256-68 (summarizing the relevant facts).
[41] There were actually three questions presented to the Supreme Court: (1) whether Thompkins effectively invoked his right to remain silent; (2) whether Thompkins waived his right to remain silent; and (3) whether Thompkins was given effective assistance of trial counsel.
[42]  Thompkins, 130 S.Ct. at 2260.
[43] Id.,citing Solem v. Stumes, 465 U.S. 638, 648 (1984).
[44] Id, citing Moran v. Burbine, 475 U.S. 412, 425, 427 (1986).
[45] Id.
[46] Id. (Solomayor, J., dissenting).
[47] Id. at 2260.
[48] Edwards, 451 U.S. at 485.
[49] Davis, 512 U.S. at 452.
[50] Edwards, 451 U.S. at 485.
[51] Davis, 512 U.S. at 452.
[52] Mosley, 423 U.S. at 104.
[53] Thompkins, 130 S.Ct. at 2276 (Sotomayor, J., dissenting).
[54] Id.
[55] Id. at 2260.
[56] Id. at 2276 (Sotomayor, J., dissenting).
[57] Davis, 512 U.S. at 455.
[58] Id.
[59] Id. at 2276 (Sotomayor, J., dissenting), quoting Soffar v. Cockrell, 300 F.3d 588, 603 (5th Cir. 2002) (DeMoss, J., dissenting).
 
 
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