Defendant Must Unambiguously Invoke Miranda Right to Remain Silent; Mere Silence During Interrogation Is Not Sufficient

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In Berghuis v. Thompkins (2010) ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 2010 WL 2160784, officers administered Miranda warnings to defendant, a murder suspect. The officers then began interrogation, and defendant never stated that he wanted to remain silent or desired an attorney. Defendant remained mostly silent for about 2 hours and 45 minutes of questioning, but then answered “yes” when asked “Do you believe in God?” “Do you pray to God?” and “Do you pray to God to forgive you for shooting that boy down?” Defendant moved to suppress his statements. The trial court denied the motion, and a jury convicted him. The Circuit Court of Appeals granted defendant a writ of habeas corpus. Held, reversed and remanded.

(a) Defendant did not invoke his privilege to remain silent by not saying anything during the interrogation before he made inculpatory statements. Under Davis v. United States (1994) 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362, 5 Cal. Crim. Law (3d), Criminal Trial, §125, the assertion of the Miranda right to the presence of counsel must be unambiguous. The same rule applies to the invocation of the Miranda right to remain silent. A requirement of an unambiguous invocation avoids difficulties of proof and provides guidance to officers. Thus, a suspect must unambiguously state that he or she wants to remain silent or that he or she does not want to talk with the police. Here, defendant said neither, and therefore did not invoke his right to remain silent. (___ S.Ct. ___, ___ L.Ed.2d ___, 2010 WL 2160784, p. 8.)

(b) Even if defendant invoked his right to remain silent, he waived this right by responding to the questions:

(1) Even without a defendant's invocation of the right to remain silent, a statement during a custodial interrogation is inadmissible unless the prosecution can establish that the accused knowingly and voluntarily waived Miranda rights. (___ S.Ct. ___, ___ L.Ed.2d ___, 2010 WL 2160784, p. 9, citing North Carolina v. Butler (1979) 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286, 5 Cal. Crim. Law (3d), Criminal Trial, §134.)

(2) Although Miranda may be read to require an express waiver of rights, subsequent cases demonstrate that a waiver may be implied through the defendant's silence, coupled with an understanding of his or her rights and a course of conduct indicating waiver. (___ S.Ct. ___, ___ L.Ed.2d ___, 2010 WL 2160784, p. 10.)

(3) Here, there was no evidence that defendant did not understand his Miranda rights. Second, his responses to the officer’s questions concerning prayer indicated a waiver of the right to remain silent, even though the responses came almost 3 hours after the beginning of the interrogation. Third, nothing indicated that defendant’s statements were coerced. (___ S.Ct. ___, ___ L.Ed.2d ___, 2010 WL 2160784, p. 11.)

(c) The officers were not required to obtain defendant’s waiver before asking any questions. After giving Miranda warnings, police may interrogate a suspect who has neither invoked nor waived Miranda rights. (___ S.Ct. ___, ___ L.Ed.2d ___, 2010 WL 2160784, p. 13.)

Four justices dissented. The dissent first addressed the issue of waiver and argued that the prosecution had not met its burden of showing that defendant had waived his right to remain silent. (___ S.Ct. ___, ___ L.Ed.2d ___, 2010 WL 2160784, p. 15.) It then disagreed with the majority’s determination that a suspect must unambiguously invoke the right to remain silent. (___ S.Ct. ___, ___ L.Ed.2d ___, 2010 WL 2160784, p. 24.) The dissent summarized its views as follows: “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. Those results . . . find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.” (___ S.Ct. ___, ___ L.Ed.2d ___, 2010 WL 2160784, p. 27.)

Witkin References

On Miranda rights generally, see 5 Cal. Crim. Law (3d), Criminal Trial, §89 et seq.

On assertion of Miranda rights, see 5 Cal. Crim. Law (3d), Criminal Trial, §123 et seq.

On waiver of Miranda rights, see 5 Cal. Crim. Law (3d), Criminal Trial, §133 et seq.