You do have the right to remain silent

Issue June 2013 By Patrick J. Noonan

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 you."

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 headquarters.

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 speak.

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 protected."

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.

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.