Used to, if you were being interrogated by the police, they had to read you your Miranda rights, and then they could question you until they either essentially got a confession or you invoked your right to have counsel present which pretty much requires the questioning to stop.

Your “right to remain silent” meant you didn’t have to answer the police in a custodial interrogation and if you weren’t under arrest or already incarcerated, you could terminate the questioning by just leaving (which is psychologically difficult to do under the circumstances.)  It, of course, meant that you had to be silent for a very long time in circumstances that make it psychologically difficult not to respond.

For Van Chester Thompkins, it became too much.  After largely remaining silent for roughly three hours of constant police questioning, he cracked and made an incriminating response.  He challenged the use of that response at trial saying that he had invoked his right to be silent by…. being silent and that the continued questioning by police violated his Miranda rights.

The U.S. Sixth Circuit Court of Appeals in Cincinnati agreed and reversed his conviction.  Today, a conservative majority in the U.S. Supreme Court in a 5-4 decision reversed the Sixth Circuit.  The Court held that Thompkins needed to first “affirmatively” assert his right to remain silent by explicitly telling the police that he was affirmatively asserting his right to remain silent.  Had he done so, the majority ruled, the police would have to immediately end all questioning.

The minority opinion by Justice Sotomayor wrote the dissent:

“Criminal suspects must now unambiguously invoke their right to remain silent – which counterintuitively, requires them to speak,” she said. “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, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.”

However, I think the majority decision actually creates a massive problem for law enforcement which is still overly reliant (despite what you see on “CSI”) on custodial interrogation as a means to solve crimes.  By equating the affirmative assertion of remaining silent to the affirmative assertion of the right to counsel, the conservative majority has created a path to end custodial interrogations altogether.

Once a person asserts a right to counsel, the police cannot continue to question the suspect or come back and start questioning again without counsel being present (unless the suspect contacts the police and asks that they resume counsel, or the suspect retains counsel and agrees to resume questioning.)

Ordinarily, a suspect would not assert a right to counsel because they didn’t have the means to hire an attorney and didn’t want to wait to be charged and appear in court in order to obtain one.

However, now, all a suspect needs to do is say the magic words “I’m asserting my right to be silent” and all the psychological tactics that law enforcement has developed over the year to get reluctant suspect’s to come around to talking goes out the window.

I think in the end, this decision creates an easier path for criminal suspects to quickly end custodial interrogations than the conservative majority realizes.  However, given the high number of well-documented false confessions that still occur all too regularly in the criminal justice system, that may not be a bad thing.  But I’m not sure this is the result the conservative majority intended or expected.

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  • mvirenicus

    informative read and interesting analysis. these days the only thing a cop would get out of me is a stream of tobacco juice across his shoes. whether thru nature or nurture i want to respect law enforcement. i really do. but my experience and observation is that they're no friend of mine.

  • baggeroh

    Yeah, but then we now have the problem of language barrier. Many non-english speakers simply stay silent when faced with a barrage of incoherent sounds. If they speak a not very common dialect or language from, let say Africa or Amazon valley, they may still be harassed til they nod in some way that may be incriminating from the surface while the authorities “find” a translator. This is a mess and a shifting of responsibility to the stressed individual from the guarantees of the mighty government.

  • Shalom Brian,

    So the new magic phrase is:

    In accordance with Berghuis v. Thompkins I hereby invoke my rights under the 5th Amendment to the Constitution of the United States to remain silent?

    Works for me.



  • David B. Holt

    Until you call for their help. Then they're your best friend. Don't be so naive. This analysis is bunk. Suspects all the time assert their right to an attorney — not because they can afford one, contrary to this silly analysis, but because it's their right. Now, they must assert their right to silence. And they do this all the time too — “I don't want to talk.” Not a difficult thing to comprehend, whatever language you speak.

  • mvirenicus

    the main reason i've formed my opinion of cops is exactly because i *have* called for their help. i call them the “blue wall of i don't give a shit.”

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