FCDJ
Volume IV
BERGHUIS V. THOMPKINS AND THE MODERN
MIRANDA LANDSCAPE
STEPHANIE-LOUISE JAMIESON1
1
LL.M. Trial Advocacy, California Western School of Law (2011).
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I.
INTRODUCTION
Since Miranda v. Arizona2 was decided over four decades ago, numerous
Supreme Court decisions have sought to alter how Miranda applies in practice. The result
has been a systematic reshaping of suspects’ rights during the interrogation process.
The most recent decision affecting the scope of Miranda protections was
Berghuis v. Thompkins.3 This case addresses the way in which a suspect must invoke his
right to remain silent in order to secure that right throughout the interrogation. Although
an apparent contradiction, the holding in Thompkins indicates that the only way to secure
the right to remain silent is by doing the opposite: stating unambiguously and
unequivocally
that
one
is
refusing
to
speak.4
This article will discuss the evolution of Fifth Amendment protections since
Miranda and the background of Thompkins. It will cover the practical implications of
Thompkins for criminal defense attorneys and propose solutions for dealing with those
implications in the pre-trial setting.
II.
BACKGROUND
Since its 1966 decision in Miranda v. Arizona, the Supreme Court has repeatedly
interpreted the scope and meaning of Miranda’s holding. Most cases interpreting
Miranda have served to limit and amend the Fifth Amendment protections provided to
suspects during custodial interrogation, rather than safeguard and reinforce those
2
Miranda v. Arizona, 384 U.S. 436 (1966).
Berghuis v. Thompkins, 130 S.Ct. 2250 (2010).
4
Id. at 2264.
3
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protections.5 In the last forty years, the Court has reduced the standard of proof of waiver
from a “heavy burden” to a “preponderance of the evidence,”6 required unambiguous and
unequivocal invocation of a suspect’s fundamental right to counsel,7 and made it easier
for a suspect to waive his Miranda rights than to invoke them.8
A.
Miranda v. Arizona
With seemingly noble intentions, the Court decided Miranda v. Arizona in 1966.
Miranda was a consolidation of four cases. In each case a confession was obtained from a
defendant without officers advising him of his right to an attorney or of his right to be
protected from self-incrimination.9 The Supreme Court reversed all four convictions and
ordered that the confessions in each case be suppressed.10
The Court ruled that,
an individual held for interrogation must be clearly informed that he has the right
to consult with a lawyer and have the lawyer with him during interrogation …
[that he has] the right to remain silent and that anything stated can be used in
evidence against him …that if he is indigent a lawyer will be appointed to
represent him.11
Warnings regarding these rights were necessary in order to counteract inherently coercive
interrogation techniques that “brutalize the police, harden the prisoner against society,
and lower the esteem in which the administration of justice is held by the public.”12 The
Court noted that the interrogation process “isolates and pressures the individual” and
5
See, e.g., Colorado v. Connelly, 479 U.S. 157 (1986); Davis v. United States, 512 U.S. 452 (1994); North
Carolina v. Butler, 441 U.S. 369 (1979).
6
Connelly, 479 U.S. at 168.
7
Davis, 512 U.S. at 456.
8
Butler, 441 U.S. at 373.
9
Miranda v. Arizona, 384 U.S. 436, 491-99 (1966).
10
Id.
11
Id. at 471.
12
Id at 448.
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“trades on [his] weaknesses.”13 Accordingly, the Miranda warnings, advising suspects of
their right to counsel during interrogation and right to remain silent were established.14
This decision was a significant departure from established law regarding police
interrogations and admissibility of confessions. Prior to Miranda, a confession would be
suppressed only if a court determined that it resulted from some actual coercion or
threats.15 This changed under Miranda which established the presumption that a
statement is involuntary if it is taken during custodial interrogation without a suspect
waiving his rights.16
B.
Partial Waiver of Miranda
Miranda emphasized that a suspect may selectively invoke or waive his rights
once he has been informed of them. Connecticut v. Barrett17 reaffirmed this principle,
explaining that Miranda grants a suspect the right to choose between speech and silence.
In Barrett, the defendant agreed to discuss the case, but refused to put anything in writing
until his attorney was present.18 The Court held that Barrett had selectively waived his
right to silence, making his oral statements admissible.19 Furthermore, Miranda applies to
every question investigators pose, providing a suspect with a new opportunity to invoke
his Miranda rights with each question.20
13
Id. at 445-46.
See Miranda, 384 U.S. at 475.
15
See Rogers v. Richmond, 365 U.S. 534, 540-41 (1961); see also Lisenba v. California, 314 U.S. 219, 236
(1941).
16
Miranda, 384 U.S. at 475.
17
Connecticut v. Barrett, 479 U.S. 523, 529 (1987).
18
Id. at 525.
19
Id. at 529.
20
Miranda, 384 U.S. at 445.
14
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C.
Burden of Proof of Waiver
The burden of proof that a defendant waived his Miranda rights rests on the
State.21 In order to prove a valid waiver, the State must prove that the defendant
knowingly and intelligently waived his Miranda rights.22 Although it was initially
established by Miranda that the State had a “heavy burden” to meet, 23 the Supreme Court
later clarified that the standard of proof for this “heavy burden” is merely a
preponderance of the evidence.24
D.
Right to Counsel
The Miranda requirements and presumptions were significantly loosened in Davis
v. United States.25 In Davis, the Supreme Court addressed the means by which a suspect
must invoke his right to counsel in order to end an interrogation.26 The Court established
a bright-line rule that a suspect’s invocation of his right to counsel after an initial waiver
must be unequivocal and unambiguous.27 In Davis, the suspect initially waived his
Miranda rights and responded to questions by agents.28 After approximately one and a
half hours, the suspect said, “[m]aybe I should talk to a lawyer.”29 Agents indicated that
questioning would cease if the suspect were requesting a lawyer, to which he replied,
“[n]o, I’m not asking for a lawyer.”30 After another hour of questioning, the suspect said,
“I think I want a lawyer before I say anything else.”31 At that point, questioning ceased.32
21
See Tague v. Louisiana, 444 U.S. 469 (1980).
Id.
23
Miranda, 384 U.S. at 475.
24
Colorado v. Connelly, 479 U.S. 157, 168 (1986).
25
Davis v. United States, 512 U.S. 452 (1994).
26
Id. at 460.
27
Id.
28
Id. at 455.
29
Id.
30
Id.
31
Id.
22
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The Court held that an “ambiguous or equivocal” reference to an attorney did not require
cessation of questioning.33 A “suspect must unambiguously request counsel” in order to
effectively assert his Miranda right to counsel and end questioning, regardless of the
Government’s “heavy burden” under Miranda to prove the suspect’s Miranda waiver
was knowing, intelligent, and voluntary.34 A suspect’s articulation of his desire to have
counsel present must be sufficiently clear that a reasonable police officer would
understand the statement to be a request for an attorney.35
E.
Public Safety Exception to Miranda
Despite the “inherently coercive nature” of custodial interrogation 36, Miranda
warnings are not required prior to interrogation if there is a pressing public safety
consideration.37 In New York v. Quarles, the Supreme Court created the public safety
exception to the Miranda rule.38 In Quarles, officers responded to reports that an armed
rape suspect had entered a supermarket.39 One officer entered the market and saw a man
matching the description of the alleged rapist.40 The man, Benjamin Quarles, ran from the
officer but was eventually apprehended inside the supermarket.41 Quarles was wearing an
empty shoulder holster.42 Without advising Quarles of his Miranda rights, but after
handcuffing him, the officer questioned Quarles about the gun’s location.43 Quarles
32
Id.
Id. at 459.
34
Id.
35
Id. at 459.
36
Miranda v. Arizona, 384 U.S. 436, 448 (1966).
37
See New York v. Quarles, 467 U.S. 649 (1984).
38
Id.
39
Id. at 651.
40
Id. at 652.
41
Id.
42
Id.
43
Id.
33
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responded, “the gun is over there” and indicated a pile of empty cartons. 44 Officers found
the gun in the empty cartons.45 The Court found that Quarles had been subjected to
custodial interrogation when asked about the firearm, but held that his statement in
response to questioning was admissible although no Miranda warnings had been given.46
The Court reasoned that the concern for public safety was paramount to the need for
Miranda warnings,47 concluding that the warnings would tend to deter a suspect from
making statements.48
F.
Right to Remain Silent: Impeachment
Five years after Miranda, the Supreme Court decided Harris v. New York.49
Under Harris, a defendant’s prior statements may be used against him even if they were
obtained in violation of Miranda in order to impeach his credibility.50 The police in
Harris failed to advise the defendant of his right to counsel prior to interrogating him.51
The prosecution did not attempt to use the statement during its case in chief. 52 When the
defendant took the stand, however, he contradicted his statements made post-arrest and
was impeached by the prosecution.53
The Supreme Court allowed the prosecution’s use of the statement to impeach the
defendant on cross-examination because the Court was not inclined to allow the
defendant to use the Miranda exclusionary rule as a license to commit perjury.54 The
44
Id.
Id.
46
Id. at 655.
47
Id. at 653.
48
Id. at 657.
49
Harris v. New York, 401 U.S. 222 (1971).
50
See id.
51
Id. at 223-24.
52
Id. at 224.
53
Id.
54
Id. at 225.
45
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Court found that admitting the prior statements was helpful to the jury’s ability to judge
the credibility of the defendant when he chooses to testify. 55 Furthermore, the Harris
court abandoned the presumption that statements made by a suspect during custodial
interrogation are involuntary, noting that the defendant made “no claim that the
statements made to the police were coerced or involuntary.”56 This departure was
significant because the presumption was the reason for requiring Miranda warnings in the
first place.57
The Harris decision was later limited by Mincey v. Arizona.58 In Mincey,
statements were taken from a defendant while he was seriously injured and sedated in a
hospital.59 These statements admitting guilt were considered involuntary, as they were
“not the product of a rational intellect and free will.”60 The Court held that “any criminal
trial use against a defendant of his involuntary statement is a denial of due process of
law.”61
The government may not, however, use a defendant’s invocation of his right to
silence against him at trial, not even for impeachment purposes. 62 In Doyle v. Ohio, two
suspects chose to remain silent after they had been advised of their Miranda right to do
so.63 During trial, each suspect took the stand and testified to the events in question.64 The
prosecution cross-examined each defendant about why he had failed to tell officers the
55
Id.
Id. at 224.
57
Miranda v. Arizona, 384 U.S. 436, 475 (1966).
58
Mincey v. Arizona, 437 U.S. 385 (1978).
59
Id. at 396.
60
Id. at 398, (internal quotations omitted).
61
Id. (emphasis original).
62
See Doyle v. Ohio, 426 U.S. 610 (1976).
63
Id. at 613.
64
Id.
56
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same story he testified to on direct.65 The Doyle court held that this impeachment
improperly penalized the defendants’ silence pursuant to their Miranda rights.66 The
Court held that the Miranda warnings carry the implicit promise that if suspects remain
silent, that silence will not be used against them.67
G.
Implicit Waiver
The Supreme Court has held that a suspect’s waiver of his Miranda rights need
not be explicit or written.68 Instead, a waiver of rights may be implicit, inferred from the
actions and words of the suspect.69 In Butler, the defendant was arrested for kidnaping,
armed robbery, and felony assault.70 Following his arrest, the defendant was advised of
his rights which he said he understood.71 He refused to sign a waiver form, but agreed to
speak with officers.72 The defendant then made incriminating statements to officers.73
Despite the fact that the defendant did not explicitly waive his rights, he never requested
counsel or attempted to end questioning.74 The Court held that the defendant’s
willingness to speak with officers, having understood his rights, constituted an implicit
waiver of those rights.75 An implicit waiver may even be inferred from a suspect’s
silence.76 Specifically, a suspect’s silence coupled with an understanding of his rights and
65
Id. at 611.
Id. at 618.
67
Id. at 618; see also New Jersey v. Portash, 440 U.S. 450, 459-60 (1979).
68
North Carolina v. Butler, 441 U.S. 373 (1979).
69
Id. at 376.
70
Id. at 370.
71
Id. at 370-71.
72
Id. at 371.
73
Id.
74
Id.
75
Id. at 373.
76
Id.
66
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a course of conduct indicating waiver may support a conclusion that the suspect has
waived his rights.77
III.
BERGHUIS V. THOMPKINS
A.
Facts
On January 10, 2000, a young boy was killed in a shooting outside a mall in
Southfield, Michigan.78 Van Chester Thompkins fled the scene and was found in Ohio
and arrested one year later.79 While Thompkins was awaiting transfer to Michigan, two
officers from Southfield traveled to Ohio to interrogate him.80 The interrogation began
around 1:30 p.m. and lasted nearly three hours.81
Officers thoroughly advised Thompkins of his Miranda rights, providing him first
with a form titled, “NOTIFICATION OF CONSTITUTIONAL RIGHTS AND
STATEMENT,” which listed five bullet points outlining Thompkins’ rights under
Miranda.82 Thompkins was asked to read the fifth bullet point out loud, which he did.83
One officer then read aloud to Thompkins the other four bullet points and asked him to
sign the form to demonstrate that he understood his rights.84 Thompkins refused to sign
the form.85
77
Id.
Berghuis v. Thompkins, 130 S.Ct. 2250, 2256 (2010).
79
Id.
80
Id.
81
Id.
82
Id.
83
Id.
84
Id.
85
Id.
78
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After this review of Thompkins’ Miranda warnings, the interrogation began.86
Thompkins was “[l]argely silent during the interrogation” giving only a few verbal
responses such as “yeah,” “no,” and “I don’t know,” and occasionally nodding his head.87
At some point during the interrogation, Thompkins also responded that he “didn’t want a
peppermint” that he was offered and that the chair he was “sitting in was hard.”88
Thompkins never stated that he wished to invoke his right to silence or to an attorney.89
Approximately two hours and forty-five minutes into the interrogation, one
detective asked Thompkins, “[d]o you believe in God?”90 Thompkins’ eyes welled up
with tears; he made eye contact with the detective, and said, “[y]es.” 91 Encouraged by the
reply, the detective asked “[d]o you pray to God?”92 Thompkins again responded,
“[y]es.”93 Finally the detective asked, “[d]o you pray to God to forgive you for shooting
that boy down?”94 Thompkins again responded, “[y]es,” and looked away.95 About
fifteen minutes later, the interrogation ended when Thompkins refused to make a written
confession.96
Thompkins was charged with first-degree murder, among other crimes.97 At a
suppression hearing, Thompkins argued that he had invoked his Fifth Amendment right
to remain silent requiring officers to end the interrogation, that he had not waived his
86
Id.
Id.
88
Id. at 2257.
89
Id. at 2256.
90
Id. at 2257.
91
Id.
92
Id.
93
Id.
94
Id.
95
Id.
96
Id.
97
Id.
87
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Miranda rights, and that his confession was involuntary.98 Thompkins’ motion was
denied and a jury convicted him on all counts.99 He was sentenced to life in prison
without parole.100
B.
Holding
The Supreme Court held that “a suspect who has received and understood the
Miranda warnings, and has not invoked his Miranda rights, waives the right to remain
silent by making an uncoerced statement to the police.”
101
After extensive analysis, the
Court concluded that Thompkins had not invoked his Miranda rights and that his
statements to officers were not coerced.102 Furthermore, Thompkins waived his Miranda
rights through a course of conduct indicating waiver.103 Relying heavily on Davis v.
United States, the Court held that only an express invocation of one’s right to remain
silent is sufficient to cut off questioning and end interrogation.104 Justice Kennedy found
“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.105 The Court reasoned that “[i]f an ambiguous . . . statement could require police
to end the interrogation, police would be required to make difficult decisions about an
accused’s unclear intent.”106 Justice Kennedy’s concern was about the “significant
98
Id.
Id. at 2257-58.
100
Id. at 2258.
101
Id. at 2264.
102
Id.
103
Id. at 2262.
104
Id.
105
Id.
106
Id. at 2260.
99
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burden” that would be borne by society’s interest in prosecuting criminal activity if
voluntary confessions would be unnecessarily suppressed due to a suspect’s ambiguity.107
C.
What Thompkins Means for Modern Miranda
A suspect’s rights remain unchanged following Thompkins; merely the invocation
of those rights and the requirements for invocation have been clarified. Accordingly, a
suspect is not limited in his right to remain silent. He is however limited in his ability to
end interrogation. Silence alone is insufficient to end questioning.
The Thompkins Court addressed and resolved a circuit split that has existed since
the decision in Davis v. United States. The First, Sixth, Seventh, Eighth and Eleventh
Circuits already required any invocation of Miranda rights, to remain silent and to
counsel, be unequivocal and unambiguous, pursuant to Davis.108 Fifteen years before
Thompkins was decided, the Eleventh Circuit decided Medina v. Singletary109 in which
the court held that “[l]aw enforcement officers are not required to terminate an
interrogation unless the invocation of the right to remain silent is unambiguous.” In
Arnold v. Runnels, the Ninth Circuit considered extending Davis to the right to remain
silent, but opted to leave the question open.110 In Arnold, the Ninth Circuit hesitated to
extend Davis to the right to silence.111 However, the Court noted, “even under the rule set
107
Id. at 2260.
See e.g., James v. Marshall, 322 F.3d 103, 108 (1st Cir. 2003); United States v. Hurst, 228 F.3d 751,
759-760 (6th Cir. 2000); United States v. Banks, 78 F.3d 1190, 1197-98 (7th Cir.), vacated on other
grounds by Mills v. United States, 519 U.S. 990 (1996); Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th
Cir. 2001); United States v. Mikell, 102 F.3d 470, 476-77 (11th Cir. 1996).
109
Medina v. Slingletary, 59 F.3d 1095, 1100 (11th Cir. 1995).
110
Arnold v. Runnels, 421 F.3d 859, 866 n. 8 (9th Cir. 2005) (applying the Davis standard, but recognizing
that the question of application of Davis to invocations of one’s right to silence has been left open by Ninth
Circuit law); see also Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir. 1996).
111
Arnold, 421 F.3d at 866.
108
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forth in Davis, Arnold’s statement that he didn’t want to talk on tape was clear and
unambiguous.”112
Accordingly, the implications of Thompkins for modern Miranda are unlikely to
be grave in those Circuits that have already applied the Davis standard to the right to
remain silent. Even in the Ninth Circuit, changes may be minimal. The Ninth Circuit had
initially held in United States v. Wallace113 that a suspect’s complete silence in the face of
ten minutes of questioning invoked the right to remain silent and required questioning to
stop. However, this decision preceded the Supreme Court’s Davis rule requiring
unambiguous invocation of the right to counsel. Since the Davis ruling, even the Ninth
Circuit has tended to lean toward applying the “unambiguous and unequivocal
invocation” rule to the right to remain silent, despite attempts to avoid a clear ruling on
the issue.114
IV.
HOW THE CIRCUITS ARE DEALING WITH THE
BERGHUIS V. THOMPKINS DECISION
Despite the relative recency of the Thompkins decision, lower courts have wasted
no time applying the holding. The majority of decisions have taken Thompkins at face
value. One case, however, has attempted to distinguish the Thompkins holding.
A. Hurd v. Terhune115
In March 1995, Dale Hurd was convicted of the first degree murder of his wife,
Beatrice.116 Beatrice was shot in Hurd’s home in April 1993. Hurd called 911 and was
112
Id.
United States v. Wallace, 848 F.2d 1464, 1475 (9th Cir. 1988).
114
See Evans, 98 F.3d at 1176; see also United States v. Soliz, 129 F.3d 499, 504 (9th Cir. 1997).
115
Hurd v. Terhune, 619 F.3d 1080 (9th Cir. 2010).
116
Id. at 1082.
113
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taken into custody.117 Police immediately informed him of his Miranda rights which
Hurd waived prior to questioning.118 Despite agreeing to respond to questioning outside
the presence of an attorney, Hurd declined to undergo a polygraph exam and refused to
reenact the shooting.119 Throughout Hurd’s trial and in closing argument, the prosecution
relied upon Hurd’s refusals to reenact the shooting as evidence of his guilt.120 The Ninth
Circuit determined that Hurd’s refusals were improperly used against him at trial and that
his Miranda rights were violated because he unambiguously invoked his right to silence
by refusing to reenact the shooting or take a polygraph exam.121
In reaching its decision, the court explains that Thompkins “stands for the
proposition that a voluntary confession should not be suppressed just because a defendant
has refrained from answering other questions.”122 The Thompkins decision does not
change established principles that a suspect’s silence may not be used against him at trial,
regardless of whether that silence was a valid invocation of his right to end
questioning.123 Furthermore, a suspect need not “utter a talismanic phrase to invoke his
right to silence.”124 Any unambiguous expression of a suspect’s unwillingness to respond
to a question or line of questioning is sufficient.125
117
Id.
Id. at 1083.
119
Id. at 1084.
120
Id.
121
Id. at 1088.
122
Id.
123
Id.
124
Id. at 1089 (internal quotations omitted).
125
Id.
118
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V. HOW TO APPROACH SUPPRESSION OF STATEMENTS FOR
MIRANDA VIOLATIONS POST-THOMPKINS
Despite the fact that the Thompkins holding initially seems to cause a significant
detriment to a suspect’s Miranda rights, a suspect is not left without a defense under this
newly clarified case law. The language used by the Court in Thompkins provides ample
ground for challenging post-Miranda confessions. Furthermore, although Miranda did
not emerge from the Thompkins holding unscathed, it’s primary principles remain intact.
Finally, as a highly fact-specific holding, there is significant room for defense counsel to
distinguish a suspect’s case from the facts underlying Thompkins.
A.
Rely on the Court’s Own Language
The Thompkins Court emphasized that even if a defendant fails to invoke his right
to remain silent, any statements he makes during custodial interrogation are inadmissible
against him at trial unless the prosecution can meet its burden of proving that the accused
knowingly and intelligently waived his Miranda rights when making the statement.126
This must become the focus for any attorney faced with incriminating post-Miranda
statements. This requirement was established long before Thompkins, and remains
unchanged.127 The prosecution must still show a knowing, intelligent, and voluntary
waiver of rights.128 The prosecution bears the burden of proving a valid waiver by a
preponderance of the evidence.129
Justice Kennedy outlined three ways an apparent waiver of rights may be
overcome: (1) a suspect must understand his rights; (2) there must be a course of conduct
126
Berghuis v. Thompkins, 130 S.Ct. 2250, 2260 (2010).
Id.; Miranda, 384 U.S. at 475.
128
Thompkins, 130 S.Ct. at 2260; Miranda, 384 U.S. at 475; Colorado v. Connelly, 479 U.S. 157, 168
(1986).
129
Connelly, 479 U.S. at 168.
127
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indicating waiver; and (3) there must not have been any police coercion. 130 The Miranda
requirements are met “if a suspect receives adequate Miranda warnings, understands
them, and has an opportunity to invoke the rights before giving any answers or
admissions.”131 Kennedy notes in concluding that Thompkins validly waived his Miranda
rights that the “main purpose of Miranda is to ensure that an accused is advised of and
understands his rights.”132 “If the right to counsel or the right to remain silent is invoked
at any point during questioning, further interrogation must cease.”133
The crux of the Thompkins holding is not that a suspect does not have the right to
remain silent. Rather, the Court held that a suspect may remain silent throughout
interrogation and is under no obligation to incriminate himself. However, in order to end
questioning and prevent further interrogation, a suspect must unequivocally and
unambiguously invoke his right to silence, telling officers he does not wish to speak to
them. Had Thompkins said that he wanted to remain silent or that he did not want to talk
with the police, these statements would have been unambiguous enough to cut off
questioning.134
B.
Go Back to Basics: Miranda v. Arizona
Another approach to challenging post-Miranda confessions lies in Miranda itself.
The Thompkins court did not overturn Miranda. On the contrary, it addresses only a very
small and specific aspect of Miranda waivers and the right to silence. The prosecution
continues to bear a “heavy burden” of proving waiver.135 Furthermore, there is no
130
Thompkins, 130 S.Ct. at 2262-2263.
Id. at 2263.
132
Id. at 2261.
133
Id. at 2263-64.
134
Id. at 2260.
135
Colorado v. Connelly, 479 U.S. 157, 168 (1986).
131
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presumption of waiver and silence itself is not considered a waiver of one’s rights. 136
“Presuming waiver from a silent record is impermissible.”137 There must instead be a
record that a suspect “intelligently and understandingly” rejected his rights. 138 “Anything
less is not waiver.”139
A knowing and intelligent waiver is one that is made with “full awareness of both
the nature of the right being abandoned and the consequences of the decision to abandon
it.”140 In determining whether a suspect has knowingly and intelligently waived his
Miranda rights, a court must consider the “totality of the circumstances.”141 This includes
the suspect’s “age, experience, education, background and intelligence” and “whether he
has the capacity to understand the warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving those rights.”142
C.
Distinguishing from Thompkins
A third avenue for attacking a post-Miranda statement despite the Thompkins
holding is by distinguishing on the facts. Even in light of Thompkins, courts must look to
the context of the suspect’s invocation of rights to determine if the assertion is
unambiguous.143 The Court in Thompkins focuses heavily on Thompkins’ willingness to
speak to officers prior to his incriminating statements and the uncoerced nature of his
statements to officers. These statements are not only referenced to bolster the absence of
coercion, but also to support the Court’s conclusion that Thompkins demonstrated “a
136
Miranda v. Arizona, 384 U.S. 436, 475 (1966).
Id.
138
Id.
139
Id.
140
Moran v. Burbine, 475 U.S. 412, 421 (1986).
141
Fare v. Michael C., 442 U.S. 707, 725 (1979).
142
Id.
143
Connecticut v. Barrett, 479 U.S. 523, 528 (1987).
137
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course of conduct indicating waiver.”144 The Court confirms its conclusion that
Thompkins’ statements were an implied waiver “by the fact that before then Thompkins
had given sporadic answers to questions throughout the interrogation.”145
The language of Justice Kennedy’s opinion seems to indicate that the holding is
relatively fact specific. In theory, if a suspect had remained wholly silent throughout the
interrogation, stubbornly refusing to speak until the very end of the interrogation when
incriminating statements were made, there may be some argument that there was no
“course of conduct indicating waiver.”146 The problem that arose through Thompkins’
willingness to speak to officers when responding to innocuous questions was that his
purported “invocation” of his rights through silence became ambiguous.
Furthermore, officers in Thompkins’ case went to great lengths to ensure that he
understood his rights. Not only did they read his rights out loud to him off of a written
rights form, but they had him read one section of the rights form out loud in order to
ensure that he could read and understand English. Because of the Court’s emphasis on the
need for a suspect to understand his rights before a waiver can be valid, this is a point
ripe for drawing distinctions. A close and careful analysis of the methods used by officers
(or methods the officers failed to use) to verify that a suspect understood his rights prior
to questioning could provide adequate grounds for challenging post-Miranda statements.
IV.
CONCLUSION
At first blush, the holding in Berghuis v. Thompkins seems extremely damaging to
a suspect’s Miranda rights. However, in many circuits, a defendant’s rights remain
144
Berghuis v. Thompkins, 130 S.Ct. 2250, 2263 (2010).
Id.
146
Id.
145
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Volume IV
unchanged by the decision. Numerous circuits had already begun systematically applying
the Davis holding, requiring unambiguous invocation of all Miranda rights.
A close examination of the Thompkins opinion reveals subtleties that can be
exploited in favor of a defendant’s rights. A suspect’s right to silence remains intact postThompkins. Only the right to end interrogation and cut off questioning has been clarified.
Even the Thompkins opinion itself provides significant basis to challenge a post-Miranda
confession that may have been the product of involuntariness or misunderstanding. It lies
with defense counsel to look beyond the Thompkins holding to the fundamental case law
that defines a suspect’s Miranda rights.
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