Miranda rights and wrongs

Police officers have read it dozens of times, usually as a suspect is being handcuffed and placed under arrest. “You have the right to remain silent. Anything you say or do can and will be used against you in a court of law...” The Miranda warning...


Misunderstanding by the public is just one problem with Miranda. Some attorneys believe the original intent of Miranda has been seriously compromised by a recent Supreme Court decision.

Berghuis v. Thompkins

In January 2000, Van Chester Thompkins was arrested as a suspect in a fatal Michigan shooting. Police read Thompkins his rights and interrogation by detectives began. At no time did Thompkins state he was invoking his right to remain silent, nor that he did not wish to talk to the police, nor that he wanted an attorney present. He didn’t say anything at all during first three hours of the interrogation, at least as it related to the case.

Then, the detectives took a different tack. They switched to a spiritual approach by appealing to Thompkins’ conscience and religious beliefs. They asked Thompkins three questions—did he believe in God, did he pray to God, and did he pray to God to forgive him for shooting the victim. The suspect answered “Yes” to each question.

Later, Thompkins’ attorney moved to suppress the answers, claiming that Thompkins had in fact invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his inculpatory statements were involuntary. The trial court denied his motion and Thompkins was found guilty by a jury and sentenced to life imprisonment.

In Berghuis v. Thompkins (560 U.S.(2010)), the Supreme Court considered the position of a suspect who understands his right to remain silent but does not explicitly invoke or waive the right.

The Court held 5-4 that unless, or until, the suspect specifically stated that he was invoking his right to silence, his subsequent voluntary statements could be used in court and police could continue questioning. The Court held further that the mere act of remaining silent was, on its own, insufficient to imply the suspect has invoked his right to silence. Furthermore, a voluntary reply even after lengthy silence could be construed as implying a waiver.

Justice Sotomayor, writing in dissent, says that “suspects must now unambiguously invoke their right to remain silent—which, counter intuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.”

Berghuis is seen by some legal scholars as a symptom of greater Miranda depletion. Harvard law professor Laurence Tribe is one.

“I believe Miranda is gradually being eroded, although the place of Miranda in American legal and popular culture is so firmly established, as the Supreme Court itself recognized in the Dickerson case [Dickerson v. United States, 530 U.S. 428 (2000)], that it’s less likely ever to be overruled outright than simply hollowed out through a piling on of exceptions and qualifications,” Tribe says.

In Dickerson, the Court upheld the requirement that the Miranda warning be read to criminal suspects, and struck down a federal statute that purported to overrule Miranda v. Arizona.

Waiver inferred

Attorney David Rudovsky, of the University of Pennsylvania Law School, also believes that Berghuis is a significant erosion of the rights set forth in Miranda.

“The Miranda Court ruled there was a heavy burden on the state to show a knowing and voluntary waiver of the right to silence, and that Court would have never have approved of a process of ‘inferring’ waiver from silence itself,” Rudovsky says. “In effect, Berghuis flips the burden to the suspect who must now affirmatively state that she does not want to talk to the police.”

Rudovsky believes that Berghuis is just one of many post- Miranda cases that undermine the rule. “What is left of Miranda is up for debate, but in many ways the current rules are a faint shadow of what Miranda imposed,” he says.

Chicago-Kent College of Law professor Doug Godfrey says Berghuis demonstrates how the Supreme Court continues to truncate Miranda. “By holding that the [right to silence] waiver can be implied, the Court has strayed far from the language in the original Miranda decision that said that the waiver ‘had to be clear’ and that the state held ‘a strong burden’ when showing that an individual had waived his rights,” Godfrey said.

  • Enhance your experience.

    Thank you for your regular readership of and visits to Officer.com. To continue viewing content on this site, please take a few moments to fill out the form below and register on this website.

    Registration is required to help ensure your access to featured content, and to maintain control of access to content that may be sensitive in nature to law enforcement.