The Sound of Silence: Miranda Waivers, Selective Literalism, and Social Context


The Sound of Silence


Richard A. Leo

In 2010 the United States Supreme Court ruled in Berghuis v. Thompkins that a waiver of a suspect’s Miranda right to counsel can be implied through silence. At the beginning of what would be a three-hour interrogation, police presented Mr. Thompkins with a standard Miranda form that notified him of his rights to silence and appointed counsel as well as of the possible in-court consequences of making a statement to police. In addition to these standard Miranda warnings, the investigator added a fifth warning to the form, which he had Mr. Thompkins read out loud: “You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.” (Berghuis v. Thompkins, 2010: 2256). The detective subsequently requested that Mr. Thompkins sign the Miranda waiver form, but Mr. Thompkins declined to do so. Although Mr. Thompkins never stated that he wished to remain silent, he did remain “largely” silent during the subsequent interrogation. Approximately two hours and 45 minutes into accusatory questioning, the detective asked Mr. Thompkins whether he prays “to God to forgive you for shooting that boy down?” and Mr. Thompkins “answered yes and looked away.” (Berghuis v. Thompkins, 2010: 2257).

This incriminating statement was ultimately treated as a confession and used to convict Mr. Thompkins, who argued on appeal that by persisting in silence for almost three hours, he had communicated that he did not wish to speak to the police and thus had invoked his Miranda right to silence. His incriminating statement, elicited in violation of Miranda, therefore should have been excluded from evidence at trial and because it was not, his conviction should be reversed. The Supreme Court rejected his argument, holding 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 police.” (Berghuis v. Thompkins, 2010: 2264).

Thompkins is widely regarded as one of the most significant Miranda cases yet decided (Weisselberg, 2010; Thomas and Leo, 2012). This is because the Miranda decision in 1966 made clear that police detectives could not interrogate a custodial suspect prior to obtaining an explicit waiver to both the rights to silence and counsel, and that the state bears a heavy burden to demonstrate the waiver was both knowing and voluntary. Thompkins seems to defy one of the founding premises of Miranda, namely that Miranda warnings can only mitigate the inherent compulsion of police interrogation when waivers are freely and voluntarily given. As Justice Sotomayor complained in dissent in Thompkins, “Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, 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 v. Thompkins, 2010: 2278). Charles Weisselberg adds: “the Court [in Berghuis v. Thompkins

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