By Meg Slachetka

In response to the Supreme Court’s June 2010 decision in Berghuis v. Thompkins, the Marquette University Law School Faculty blog recently published a revised version of the Miranda warning:

First, you have the right to remain silent.

  1. 1.  Actually, you really don’t have the right to remain silent, unless you first speak. Berghuis v. Thompkins, 560 U.S. ___ (2010).
  2. 2.  But if you choose to speak so that you can remain silent, you had better not be ambiguous.  If you tell me, for example, “I don’t got nothing to say,” that is ambiguous to me, and not because of the double negative.  Your ambiguity will be construed in my favor, and I am allowed to continue my interrogation. United States v. Banks, 78 F.3d 1190 (7th Cir. 1996).

Though somewhat tongue-in-cheek, the author correctly recognizes the shift in police interrogation procedures that are likely to follow Thompkins.  For the first time since its 1966 decision in Miranda v. Arizona, the Court made clear that a suspect who wishes to invoke his right to remain silent must do so with a clear and unambiguous statement.  Any statements made in response to police questioning, even after a long period of silence, will be construed as a waiver of the right to silence and can be used as evidence against the suspect.  Police need not secure an explicit waiver of the right from a suspect.  This holding extends the line of thought established in 1994 in Davis v. U.S., in which the Court held that a suspect must unambiguously invoke his right to counsel.   Writing for the majority in Thompkins, Justice Kennedy found no reason to treat the right to remain silent differently from the right to counsel.  Police must only give Miranda warnings and ensure that a suspect understands the warnings.  They can then continue questioning a suspect and attempting to elicit a confession until—and if—the suspect explicitly invokes his right to silence.

In a strong dissent, Justice Sotomayor accused the majority of chipping away at the Miranda rights and requiring suspects to utter certain “magic words” to invoke Fifth Amendment protections.  She also worried that police were not likely to educate suspects on precisely what words would invoke their rights.  The likely outcome is that more police officers will continue questioning silent suspects for hours with the hope of eventually securing a confession.  While it will take years or even decades for this decision to take effect in police stations, the Court clearly shifted the procedural balance of power toward law enforcement.