On Having the Right to Remain Silent

The Supreme Court has just ruled, in the case of Berghuis v. Thompkins, that a person has the right to remain silent as long as they tell law enforcement they intend to remain silent. The case revolved around Van Chester Thompkins, who was convicted in a drive-by shooting.

Upon being arrested, law enforcement must inform the accused of their Miranda rights. A person has the right to remain silent and to have an attorney present during questioning. The person is asked if they wish to waive these rights and, if they do, many departments require the person to then sign a waiver. But, there is a “gray area,” and law enforcement routinely takes advantage of it.

While a person may not waive their rights, many times people cannot afford a lawyer and, because many arrests happen during evening or early morning hours, there is no access to a pro-bono lawyer. Suspects are then kept in an interrogation room for hours as investigators actively work to break the person down. Such was the case as Thompson was interrogated for almost three hours even though he had refused to sign a waiver of his rights, or to even acknowledge he was notified of his rights.

In the court’s syllabus, it states: “The Federal District Court denied his subsequent habeas request, reasoning that Thompkins did not invoke his right to remain silent and was not coerced into making statements during the interrogation.”

While it may be true that officers did not assault Thompkins or issue threats during the interrogation, the mere fact that they kept him in an interrogation room for almost three hours after he refused to waive his rights is, by definition, an act in and of itself designed to coerce statements, or at least it should be.

In the court’s ruling, they state: “(a) Thompkins’ silence during the interrogation did not invoke his right to remain silent. A suspect’s Miranda right to counsel must be invoked ‘unambiguously.’ Davis v. United States, 512 U. S. 452, 459. If the accused makes an “ambiguous or equivocal” statement or no statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused’s intent, id., at 461-462. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. The unambiguous invocation requirement results in an objective inquiry that ‘avoid[s] difficulties of proof and … provide[s] guidance to officers’ on how to proceed in the face of ambiguity. Davis, supra, at 458-459. Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning. He did neither. Pp. 8-10.”

It is precisely the ruling in Davis v. United States that provided this “gray area” and ambiguity for law enforcement to exploit in the first place. A person’s rights don’t begin when they receive the Miranda warnings. These rights are absolute. The person is asked if they waive their rights and, in many cases, to sign a written waiver form just so there is no ambiguity on the person’s intent. The denial to sign the waiver form at the start of an interrogation itself should be proof of the person’s intent.

The court further stated: “(b) Thompkins waived his right to remain silent when he knowingly and voluntarily made a statement to police. A waiver must be ‘the product of a free and deliberate choice rather than intimidation, coercion, or deception’ and ‘made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.’ Moran v. Burbine, 475 U. S. 412, 421. Such a waiver may be ‘implied’ through a ‘defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver.’ North Carolina v. Butler, 441 U. S. 369, 373. If the State establishes that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver.”

As the court correctly notes, a person’s waiver must be free and deliberate rather than coerced. But it was this statement in the court’s ruling that is truly extraordinary: “Had he wanted to remain silent, he could have said nothing in response or unambiguously invoked his Miranda rights, ending the interrogation. That he made a statement nearly three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver.”

In reality, had Thompkins simply remained silent, the interrogation would have simply continued for untold hours. By the court’s ruling, as long as you remain silent, law enforcement can continue to interrogate you for days without restraint. In fact, that is EXACTLY what the court ruled: “Third, there is no evidence that his statement was coerced. See Burbine, supra, at 421. He does not claim that police threatened or injured him or that he was fearful. The interrogation took place in a standard-sized room in the middle of the day and there is no authority for the proposition that a 3-hour interrogation is inherently coercive.”

There is no AUTHORITY that a 3-hour interrogation is INHERENTLY coercive? How about 20 hours or even 38 hours? How long should law enforcement be allowed to hold a person in an interrogation room before it is deemed to be “inherently coercive”?

In addition, as the court notes, departments are not required to get a written waiver: “After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived Miranda rights. Thus, the police were not required to obtain a waiver of Thompkins’ Miranda rights before interrogating him. Pp. 15-17.” Again, this simply reinforces the gray area for law enforcement.

By not being required to obtain a written waiver before interrogating a person and allowing an interrogation to go on indefinitely, law enforcement knows that they can simply drag out an interrogation for as long as it takes before a suspect breaks down.

The Reid Technique, which is sometimes used during interrogations, establishes nine steps to be used by an interrogator. The very first step uses confrontation between the person and interrogator. Every step is designed to coerce a suspect to give information or a confession, but the interrogation is always started with the intent to intimidate. Deception, trickery and psychological manipulation are all approved methods of interrogation. The Innocence Project, a nonprofit legal clinic, claims 8 percent of wrongful convictions are due to forced or coerced confessions.

Many times, an interrogation will last hours, during which time the person may be denied food, sleep or even the use of the bathroom by interrogators. This was the case in 1999 when Keith Zinetti was charged with his wife’s murder after a 38-hour sleepless interrogation in Prince Georges County, Maryland. After spending eight months in jail, he was finally exonerated for the crime.

But the Prince George County Police Department’s troubles were only beginning. Zinetti’s interrogation was one of four that were investigated. In the investigation of the four suspects who were charged with murder, it was found three of them had been denied their right to counsel, all of them had been threatened or intimidated during the interrogation, all of the interrogations lasted for 11 hours or more and, in all of the cases, the confession of the suspect was the major evidence used by the department. All four suspects have since been exonerated. April Witt of The Washington Post reported in 2001 that some Prince Georges lawyers, to include country prosecutors, had stated that interrogation-room abuse was routine.

In dissent to the ruling of the court, Justice Sotomayor, Justice Stevens, Justice Ginsberg and Justice Breyer correctly state: “The Court concludes today that a criminal suspect waives his right to remain silent if, after sitting tacit and uncommunicative through nearly three hours of police interrogation, he utters a few one-word responses. The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of ‘waiver’ must, counter-intuitively, speak – and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police.”

But it is in this portion that these dissenting justice’s bring home the tactics that will allow this to continue: “Thompkins’ non-responsiveness is particularly striking in the context of the officers’ interview strategy, later explained as conveying to Thompkins that ‘this was his opportunity to explain his side [of the story]’ because ‘[e]verybody else, including [his] co-[d]efendants, had given their version,’ and asking him ‘[w]ho is going to speak up for you if you don’t speak up for yourself?’ Id., at 10a, 21a. Yet, Helgert confirmed that the “only thing [Thompkins said] relative to his involvement [in the shooting]” occurred near the end of the interview – i.e., in response to the questions about God. Id., at 10a-11a (emphasis added). The only other responses Helgert could remember Thompkins giving were that “‘[h]e didn’t want a peppermint'” and “‘the chair that he was sitting in was hard.'” Id., at 152a. Nevertheless, the Michigan court concluded on this record that Thompkins had not invoked his right to remain silent because ‘he continued to talk with the officer, albeit sporadically,’ and that he voluntarily waived that right. App. to Pet. for Cert. 75a.”

By engaging Thompkins in meaningless dialog, such as asking if he wanted a mint, it gives law enforcement legal cover that the person has waived his/her right to remain silent during an interrogation.

The court’s opinion and judgment is clear in this case: weaken Miranda. If you are ever arrested, you must now specifically state to the officer immediately that you do indeed invoke your right to counsel and to remain silent. You must then restate this over and over to every investigator, every clerk and every official. If you don’t, law enforcement is simply able to interrogate you for as long as they please and, as I’ve shown, they will do exactly that.