In Berghuis v. Thompkins, 560 U.S. 370 (2010), Samuel
Morris and Frederick France were shot outside a mall in Southfield,
Michigan. Morris died of multiple gunshot wounds. France recovered
from his injuries. The main suspect in the shooting was Van Chester
Thompkins, who evaded capture and fled Michigan. Approximately one
year later, Thompkins was arrested in Ohio. Two police officers
from Southfield traveled to Ohio and interrogated him there.
Detective Helgert started the interrogation by presenting
Thompkins with a form entitled "Constitutional Rights and
Notification." The form enumerated Thompkins' constitutional rights
derived from Miranda v. Arizona. Detective Helgert
wanted to ensure that Thompkins could read and understand English
so he asked Thompkins to read the fifth warning out loud. Thompkins
complied and read aloud the fifth right listed on the form:
"5. 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."
Based on Thompkins' recitation, Detective Helgert concluded that
the suspect could read and understand English. Detective Helgert
then read the remaining four Miranda rights out loud to Thompkins.
After advising the suspect of his Miranda rights, Detective Helgert
asked Thompkins to sign the form as evidence and confirmation that
the suspect understood all the rights listed on the form. Thompkins
refused to sign the form. Nevertheless, Helgert initiated the
interrogation and proceeded to question Thompkins about the
shooting for approximately three hours during which time Thompkins
remained "largely" silent.
About 2 hours and 45 minutes into the interrogation, Helgert asked
Thompkins three questions, which elicited three affirmative
responses. First, Helgert asked Thompkins whether he believed in
God ("yes"). Second, Helgert asked Thompkins whether he prayed to
God ("yes"). The final question elicited a fatal affirmative answer
and solidified Thompkins' conviction for first-degree murder:
Helgert asked, "Do you pray to God to forgive you for shooting
that boy down?" Thompkins answered "Yes."
Thompkins claimed that he "invoked his privilege" to remain silent
by not saying anything. That is, he invoked his right to remain
silent by "largely" remaining silent for almost two-hours and
forty-five minutes. Put simply, he invoked his right to remain
silent by remaining silent.
The Supreme Court found Thompkins' claim unpersuasive. The court
expanded the standard set forth in Davis v. United
States, holding that a suspect must invoke his right
to remain silent "unambiguously." The right to remain silent cannot
be invoked ambiguously and equivocally. Here, Thompkins did not
"unambiguously" invoke his right to remain silent because he did
not make the simple statements that he wanted to remain silent or
that he did not want to talk to police. Therefore, in order to
invoke the right to remain silent, the suspect must affirmatively
state "I want to remain silent" or "I do not want to talk to
The Supreme Court departed from the government's "heavy burden" of
establishing waiver. Now, the prosecution need not show that a
waiver of Miranda rights was express. Rather, an "implicit waiver"
of the "right to remain silent" is sufficient to admit a suspect's
statement into evidence. A waiver of Miranda rights may be implied
through "the defendant's silence, coupled with an understanding of
his rights and a course of conduct indicating waiver."
The court stated that an implied waiver can be accomplished where
the prosecution shows that (1) a Miranda warning was given, (2)
that is was understood by the accused, and (3) the accused's
statements were uncoerced. No waiver is presumed,
from the very fact that the defendant made any uncoerced
statements, but the defendant cannot invoke his right to remain
silent unless he does so with the utmost clarity. Here, the
government is relieved of its "heavy burden" of establishing waiver
and places the onus on the suspect to invoke his right to remain
silent with the utmost clarity.
The Supreme Court found that Thompkins implicitly waived his
Miranda rights under the utmost clarity standard. First, there was
more than enough evidence that Thompkins understood his rights.
Second, Thompkins' did not invoke his right to remain silent with
the utmost clarity because he answered Detective Helgert's
questions, which was a "course of conduct indicating waiver." "If
Thompkins wanted to remain silent, he could have said nothing in
response to Helgert's questions, or he could have unambiguously
invoked his Miranda rights and ended the interrogation."
In Commonwealth v. Clark,, 461 Mass. 336 (2012),
Detectives Ahlborg and Lyles of the (MBTA) transit police arrested
the defendant for an indecent assault and battery. After the
arrest, the defendant was brought to an interrogation room at MBTA
Similar to Thompkins, Ahlborg provided the defendant with
a waiver form, which listed his rights under Miranda. Like
Detective Helgert, Ahlborg verbally reviewed the rights in the form
with the Defendant. After reviewing those rights with the
defendant, Ahlborg asked him whether he wanted to discuss the
charges. After a brief exchange, Ahlborg asked the defendant, "So
you don't want to speak?" In response, the defendant "shook his
head back and forth in a negative fashion." Ahlborg interpreted the
defendant's head movement as an indication that he didn't want to
Lyles, on the other hand, didn't have the same interpretation and
sought to correct a misapprehension that she thought resulted from
that brief exchange. The "misapprehension" was the implication of
the defendant's decision not to speak. Alhborg informed that the
defendant that "nothing" would happen if he chose not to speak.
Lyles explained that "nothing" did not mean that the defendant
would be free to leave and go home. In a further exchange, Lyles
asked the defendant whether he wanted to speak with them. The
defendant answered, "Yeah." The defendant then signed the Miranda
waiver form. In the ensuing interrogation, the defendant made
inculpatory statements. The defendant successfully suppressed the
inculpatory statements made post head-shake.
Relying on Thompkins, the commonwealth argued that the
defendant must actually speak to invoke the right to remain silent,
e.g., that he must unambiguously invoke his right to remain silent
with the utmost clarity. The SJC rejected the premise that a
suspect must affirmatively speak in order to invoke his right to
remain silent emphasizing the communicative value of nonverbal
expressive conduct. Here, the defendant's nonverbal expressive
conduct of shaking his head back and forth in a negative fashion
was sufficient to invoke his right to remain silent. Citing the
dissenting opinion in Thompkins, the SJC found that to
require a suspect to affirmatively speak in order to invoke his
right to remain silent is counterintuitive. As Justice Sotomayor
pointed out, "Advising a suspect that he has a 'right to remain
silent' is unlikely to convey that he must speak (and must do so in
some particular fashion) to ensure the right will be
Thompkins created a heightened standard in which the suspect
is required to invoke his right to remain silent with the "utmost
clarity." The SJC declined to adopt this heightened standard.
Instead, SJC adheres to the principle of Miranda, which
sets a lower bar for the invocation of the right to remain silent.
"If the individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent,
the interrogation must cease." (Emphasis added). Thompkins
utmost clarity standard ignores this longstanding precedent. Here,
defendant Clark indicated that he wished to remain silent in a
manner of shaking his head from side to side in a negative fashion.
Placing such a heightened burden on the suspect "turns
Miranda upside down" by placing too great a burden on the
exercise of a fundamental constitutional right.
The SJC rejected Thompkins approach to implied waiver
(which places the burden on the defendant to invoke his right to
remain silent with the utmost clarity) because such an approach
effectively reverses the burden of proof applicable to waiver. That
is, the suspect (not the government) must prove waiver with the
utmost clarity. Instead, the SJC keeps the "heavy burden" on the
government in proving waiver, as a matter of state law. Under
Massachusetts law, "[t]he court will indulge every reasonable
presumption against waiver of constitutional rights."
Commonwealth v. Hosey, 368 Mass. 571, 577, 334 N.E.2d 44
(1975). If the commonwealth cannot prove waiver beyond a reasonable
doubt, Commonwealth v. Tavares, 385 Mass. 140, 430 N.E.2d
1198 (1982), then all evidence derived therefrom is tainted.
Thompkins unquestionably favors police interrogators by
allowing them to question a criminal detainee for hours on end with
impunity unless and until the detainee has the wherewithal to utter
those magic words with the utmost clarity to cease the
interrogation. In Clark, the SJC placed a limit on the
power of the interrogator and tipped the scales back toward the
detainee by giving him the power to exert some control over the
course of the interrogation in a police-dominated atmosphere.
Patrick J. Noonan is a graduate of Stonehill College and
UMASS School of Law. He practices as a criminal defense attorney at
the Law Offices of Gerald J. Noonan in Brockton, Mass.