SOTOMAYOR, J., DISSENTING
BERGHUIS V. THOMPKINS
560 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 08-1470
MARY BERGHUIS, WARDEN, PETITIONER
v. VAN
CHESTER THOMPKINS
on writ of certiorari to the united states court of
appeals for the sixth circuit
[June 1, 2010]
Justice Sotomayor, with whom
Justice Stevens, Justice Ginsburg, and Justice Breyer join,
dissenting.
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,
counterintuitively, speak—and must do so with sufficient precision
to satisfy a clear-statement rule that construes ambiguity in favor
of the police. Both propositions mark a substantial retreat from
the protection against compelled self-incrimination that
Miranda v.
Arizona,
384 U. S. 436 (1966),
has long provided during custodial interrogation. The broad rules
the Court announces today are also troubling because they are
unnecessary to decide this case, which is governed by the
deferential standard of review set forth in the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C.
§2254(d). Because I believe Thompkins is entitled to relief under
AEDPA on the ground that his statements were admitted at trial
without the prosecution having carried its burden to show that he
waived his right to remain silent; because longstanding principles
of judicial restraint counsel leaving for another day the questions
of law the Court reaches out to decide; and because the Court’s
answers to those questions do not result from a faithful
application of our prior decisions, I respectfully dissent.
I
We granted certiorari to review
the judgment of the Court of Appeals for the Sixth Circuit, which
held that Thompkins was entitled to habeas relief under both
Miranda and
Strickland v.
Washington,
466 U. S. 668
(1984). 547 F. 3d 572 (2008). As to the
Miranda
claims, Thompkins argues first that through his conduct during the
3-hour custodial interrogation he effectively invoked his right to
remain silent, requiring police to cut off questioning in
accordance with
Miranda and
Michigan v.
Mosley,
423
U. S. 96 (1975). Thompkins also contends his statements were in
any case inadmissible because the prosecution failed to meet its
heavy burden under
Miranda of proving that he knowingly
and intelligently waived his right to remain silent. The Sixth
Circuit agreed with Thompkins as to waiver and declined to reach
the question of invocation. 547 F. 3d, at 583–584, n. 4.
In my view, even if Thompkins cannot prevail on his invocation
claim under AEDPA, he is entitled to relief as to waiver. Because I
would affirm the judgment of the Sixth Circuit on that ground, I
would not reach Thompkins’ claim that he received constitutionally
ineffective assistance of counsel.
The strength of Thompkins’
Miranda claims depends in large part on the circumstances
of the 3-hour interrogation, at the end of which he made
inculpatory statements later introduced at trial. The Court’s
opinion downplays record evidence that Thompkins remained almost
completely silent and unresponsive throughout that session. One of
the interrogating officers, Detective Helgert, testified that
although Thompkins was administered
Miranda warnings, the
last of which he read aloud, Thompkins expressly declined to sign a
written acknowledgment that he had been advised of and understood
his rights. There is conflicting evidence in the record about
whether Thompkins ever verbally confirmed understanding his
rights.[
Footnote 1] The record
contains no indication that the officers sought or obtained an
express waiver.
As to the interrogation itself, Helgert
candidly characterized it as “very, very one-sided” and “nearly a
monologue.” App. 10a, 17a. Thompkins was “[p]eculiar,” “[s]ullen,”
and “[g]enerally quiet.”
Id., at 149a. Helgert and his
partner “did most of the talking,” as Thompkins was “not verbally
communicative” and “[l]argely” remained silent.
Id., at
149a, 17a, 19a. To the extent Thompkins gave any response, his
answers consisted of “a word or two. A ‘yeah,’ or a ‘no,’ or ‘I
don’t know.’ … And sometimes … he simply sat down … with [his] head
in [his] hands looking down. Sometimes … he would look up and make
eye-contact would be the only response.”
Id., at 23a–24a.
After proceeding in this fashion for approximately 2 hours and 45
minutes, Helgert asked Thompkins three questions relating to his
faith in God. The prosecution relied at trial on Thompkins’
one-word answers of “yes.” See
id., at 10a–11a.
Thompkins’ nonresponsiveness 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.
Thompkins’ federal habeas petition is governed
by AEDPA, under which a federal court may not grant the writ unless
the state court’s adjudication of the merits of the claim at issue
“was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States,” or “was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” §§2254(d)(1), (2).
The relevant clearly established federal law
for purposes of §2254(d)(1) begins with our landmark
Miranda decision, which “g[a]ve force to the
Constitution’s protection against compelled self-incrimination” by
establishing “ ‘certain procedural safeguards that require
police to advise criminal suspects of their rights under the Fifth
and Fourteenth Amendments before commencing custodial
interrogation,’ ”
Florida v.
Powell, 559 U.
S. ___, ___–___ (2010) (slip op., at 7–8) (quoting
Duckworth v.
Eagan,
492 U. S. 195, 201
(1989)).
Miranda prescribed the now-familiar warnings that
police must administer prior to questioning. See 384 U. S., at 479;
ante, at 8.
Miranda and our subsequent cases also
require police to “respect the accused’s decision to exercise the
rights outlined in the warnings.”
Moran v.
Burbine,
475 U. S. 412, 420
(1986). “If [an] individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent” or
if he “states that he wants an attorney,” the interrogation “must
cease.” 384 U. S., at 473–474.
Even when warnings have been administered and
a suspect has not affirmatively invoked his rights, statements made
in custodial interrogation may not be admitted as part of the
prosecution’s case in chief “unless and until” the prosecution
demonstrates that an individual “knowingly and intelligently
waive[d] [his] rights.”
Id., at 479; accord,
ante, at 10. “[A] heavy burden rests on the government to
demonstrate that the defendant knowingly and intelligently waived
his privilege against self-incrimination and his right to retained
or appointed counsel.”
Miranda, 384 U. S., at 475. The
government must satisfy the “high standar[d] of proof for the
waiver of constitutional rights [set forth in]
Johnson v.
Zerbst,
304
U. S. 458 (1938).”
Ibid.
The question whether a suspect has validly
waived his right is “entirely distinct” as a matter of law from
whether he invoked that right.
Smith v.
Illinois,
469 U. S. 91, 98
(1984)
(per curiam). The questions are related, however,
in terms of the practical effect on the exercise of a suspect’s
rights. A suspect may at any time revoke his prior waiver of
rights—or, closer to the facts of this case, guard against the
possibility of a future finding that he implicitly waived his
rights—by invoking the rights and thereby requiring the police to
cease questioning. Accord,
ante, at 16.
II
A
Like the Sixth Circuit, I begin
with the question whether Thompkins waived his right to remain
silent. Even if Thompkins did not invoke that right, he is entitled
to relief because Michigan did not satisfy its burden of
establishing waiver.
Miranda’s discussion of
the prosecution’s burden in proving waiver speaks with particular
clarity to the facts of this case and therefore merits reproducing
at length:
“If [an] interrogation continues
without the presence of an attorney and a statement is taken, a
heavy burden rests on the government to demonstrate that the
defendant knowingly and intelligently waived his privilege against
self-incrimination and his right to retained or appointed
counsel… . Since the State is responsible for establishing the
isolated circumstances under which [an] interrogation takes place
and has the only means of making available corroborated evidence of
warnings given during incommunicado interrogation, the burden is
rightly on its shoulders.
“An express statement that the individual is
willing to make a statement and does not want an attorney followed
closely by a statement could constitute a waiver. But a valid
waiver will not be presumed simply from the silence of the accused
after warnings are given or simply from the fact that a confession
was in fact eventually obtained.” 384 U. S., at 475.
Miranda went further in
describing the facts likely to satisfy the prosecution’s burden of
establishing the ad-missibility of statements obtained after a
lengthy interrogation:
“Whatever the testimony of the
authorities as to waiver of rights by an accused, the fact of
lengthy interrogation or incommunicado incarceration before a
statement is made is strong evidence that the accused did not
validly waive his rights. In these circumstances the fact that the
individual eventually made a statement is consistent with the
conclusion that the compelling influence of the interrogation
finally forced him to do so. It is inconsistent with any notion of
a voluntary relinquishment of the privilege.”
Id., at
476.
This Court’s decisions subsequent
to
Miranda have emphasized the prosecution’s “heavy
burden” in proving waiver. See,
e.g., Tague v.
Louisiana,
444 U. S. 469, 470–471
(1980)
(per curiam); Fare v.
Michael C.,
442 U. S. 707,
724 (1979). We have also reaffirmed that a court may not presume
waiver from a suspect’s silence or from the mere fact that a
confession was eventually obtained. See
North Carolina v.
Butler,
441
U. S. 369, 373 (1979).
Even in concluding that
Miranda does
not invariably require an express waiver of the right to silence or
the right to counsel, this Court in
Butler made clear that
the prosecution bears a substantial burden in establishing an
implied waiver. The Federal Bureau of Investigation had obtained
statements after advising Butler of his rights and confirming that
he understood them. When presented with a written waiver-of-rights
form, Butler told the agents, “ ‘I will talk to you but I am
not signing any form.’ ” 441 U. S., at 371. He then made
inculpatory statements, which he later sought to suppress on the
ground that he had not expressly waived his right to counsel.
Although this Court reversed the state-court
judgment concluding that the statements were inadmissible, we
quoted at length portions of the
Miranda opinion
reproduced above. We cautioned that even an “express written or
oral statement of waiver of the right to remain silent or of the
right to counsel” is not “inevitably … sufficient to establish
waiver,” emphasizing that “[t]he question is … whether the
defendant in fact knowingly and voluntarily waived the rights
delineated in the
Miranda case.” 441 U. S., at 373.
Miranda, we observed, “unequivocally said … mere silence
is not enough.” 441 U. S., at 373. While we stopped short in
Butler of announcing a
per se rule that “the
defendant’s silence, coupled with an understanding of his rights
and a course of conduct indicating waiver, may never support a
conclusion that a defendant has waived his rights,” we reiterated
that “courts must presume that a defendant did not waive his
rights; the prosecution’s burden is great.”
Ibid.[Footnote 2]
Rarely do this Court’s precedents provide
clearly established law so closely on point with the facts of a
particular case. Together,
Miranda and
Butler
establish that a court “must presume that a defendant did not waive
his right[s]”; the prosecution bears a “heavy burden” in attempting
to demonstrate waiver; the fact of a “lengthy interrogation” prior
to obtaining statements is “strong evidence” against a finding of
valid waiver; “mere silence” in response to questioning is “not
enough”; and waiver may not be presumed “simply from the fact that
a confession was in fact eventually obtained.”
Miranda,
supra, at 475–476;
Butler,
supra, at
372–373.[
Footnote 3]
It is undisputed here that Thompkins never
expressly waived his right to remain silent. His refusal to sign
even an acknowledgment that he understood his
Miranda
rights evinces, if anything, an intent not to waive those rights.
Cf.
United States v.
Plugh, 576 F. 3d 135,
142 (CA2 2009) (suspect’s refusal to sign waiver-of-rights form
“constituted an unequivocally negative answer to the question …
whether he was willing to waive his rights”). That Thompkins did
not make the inculpatory statements at issue until after
approximately 2 hours and 45 minutes of interrogation serves as
“strong evidence” against waiver.
Miranda and
Butler expressly preclude the possibility that the
inculpatory statements themselves are sufficient to establish
waiver.
In these circumstances, Thompkins’ “actions
and words” preceding the inculpatory statements simply do not
evidence a “course of conduct indicating waiver” sufficient to
carry the prosecution’s burden. See
Butler,
supra, at 373.[
Footnote
4] Although the Michigan court stated that Thompkins
“sporadically” participated in the interview, App. to Pet. for
Cert. 75a, that court’s opinion and the record before us are silent
as to the subject matter or context of even a single question to
which Thompkins purportedly responded, other than the exchange
about God and the statements respecting the peppermint and the
chair. Unlike in
Butler, Thompkins made no initial
declaration akin to “I will talk to you.” See also 547 F. 3d,
at 586–587 (case below) (noting that the case might be different if
the record showed Thompkins had responded affirmatively to an
invitation to tell his side of the story or described any
particular question that Thompkins answered). Indeed, Michigan and
the United States concede that no waiver occurred in this case
until Thompkins responded “yes” to the questions about God. See Tr.
of Oral Arg. 7, 30. I believe it is objectively unreasonable under
our clearly established precedents to conclude the prosecution met
its “heavy burden” of proof on a record consisting of three
one-word answers, following 2 hours and 45 minutes of silence
punctuated by a few largely nonverbal responses to unidentified
questions.
B
Perhaps because our prior
Miranda precedents so clearly favor Thompkins, the Court
today goes beyond AEDPA’s deferential standard of review and
announces a new general principle of law. Any new rule, it must be
emphasized, is unnecessary to the disposition of this case. If, in
the Court’s view, the Michigan court did not unreasonably apply our
Miranda precedents in denying Thompkins relief, it should
simply say so and reverse the Sixth Circuit’s judgment on that
ground. “It is a fundamental rule of judicial restraint … that this
Court will not reach constitutional questions in advance of the
necessity of deciding them.”
Three Affiliated Tribes of Fort
Berthold Reservation v.
Wold Engineering, P. C.,
467 U. S. 138,
157 (1984). Consistent with that rule, we have frequently declined
to address questions beyond what is necessary to resolve a case
under AEDPA. See,
e.g., Tyler v.
Cain,
533 U. S. 656,
667–668 (2001) (declining to address question where any statement
by this Court would be “dictum” in light of AEDPA’s statutory
constraints on habeas review); cf.
Wiggins v.
Smith,
539
U. S. 510, 522 (2003) (noting that
Williams v.
Taylor,
529
U. S. 362 (2000), “made no new law” because the “case was
before us on habeas review”). No necessity exists to justify the
Court’s broad announcement today.
The Court concludes that when
Miranda warnings have been given and understood, “an
accused’s uncoerced statement establishes an implied waiver of the
right to remain silent.”
Ante, at 12–13. More broadly
still, the Court states that, “[a]s a general proposition, the law
can presume that an individual who, with a full understanding of
his or her rights, acts in a manner inconsistent with their
exercise has made a deliberate choice to relinquish the protection
those rights afford.”
Ante, at 13.
These principles flatly contradict our
longstanding views that “a valid waiver will not be presumed …
simply from the fact that a confession was in fact eventually
obtained,”
Miranda, 384 U. S., at 475, and that “[t]he
courts must presume that a defendant did not waive his rights,”
Butler, 441 U. S., at 373. Indeed, we have in the past
summarily reversed a state-court decision that inverted
Miranda’s antiwaiver presumption, characterizing the error
as “readily apparent.”
Tague, 444 U. S., at 470–471. At
best, the Court today creates an unworkable and conflicting set of
presumptions that will undermine
Miranda’s goal of
providing “concrete constitutional guidelines for law enforcement
agencies and courts to follow,” 384 U. S., at 442. At worst, it
overrules
sub silentio an essential aspect of the
protections
Miranda has long provided for the
constitutional guarantee against self-incrimination.
The Court’s conclusion that Thompkins’
inculpatory statements were sufficient to establish an implied
waiver,
ante, at 14, finds no support in
Butler.
Butler itself distinguished between a sufficient “course
of conduct” and inculpatory statements, reiterating
Miranda’s admonition that “ ‘a valid waiver will not
be presumed simply from … the fact that a confession was in fact
eventually obtained.’ ”
Butler,
supra, at
373 (quoting
Miranda,
supra, at 475). Michigan
suggests Butler’s silence “ ‘when advised of his right to the
assistance of a lawyer,’ ” combined with our remand for the
state court to apply the implied-waiver standard, shows that
silence followed by statements can be a “ ‘course of
conduct.’ ” Brief for Petitioner 26 (quoting
Butler,
supra, at 371). But the evidence of implied waiver in
Butler was worlds apart from the evidence in this case,
because Butler unequivocally said “I will talk to you” after having
been read
Miranda warnings. Thompkins, of course, made no
such statement.
The Court also relies heavily on
Burbine in characterizing the scope of the prosecution’s
burden in proving waiver. Consistent with
Burbine, the
Court observes, the prosecution must prove that waiver was
“ ‘voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation’ ” and
“ ‘made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon
it.’ ”
Ante, at 10 (quoting 475 U. S., at 421). I
agree with the Court’s statement, so far as it goes. What it omits,
however, is that the prosecution also bears an antecedent burden of
showing there was, in fact, either an express waiver or a “course
of conduct” sufficiently clear to support a finding of implied
waiver. Nothing in
Burbine even hints at removing that
obligation. The question in that case, rather, was whether a
suspect’s multiple express waivers of his rights were invalid
because police “misinformed an inquiring attorney about their plans
concerning the suspect or because they failed to inform the suspect
of the attorney’s efforts to reach him.”
Id., at 420; see
also
Colorado v.
Spring,
479 U. S. 564, 573
(1987). The Court’s analysis in
Burbine was predicated on
the existence of waiver-in-fact.
Today’s dilution of the prosecution’s burden
of proof to the bare fact that a suspect made inculpatory
statements after
Miranda warnings were given and
understood takes an unprecedented step away from the “high
standards of proof for the waiver of constitutional rights” this
Court has long demanded.
Miranda,
supra, at 475;
cf.
Brewer v.
Williams,
430 U. S. 387, 404
(1977) (“[C]ourts indulge in every reasonable presumption against
waiver”);
Zerbst, 304 U. S., at 464. When waiver is to be
inferred during a custodial interrogation, there are sound reasons
to require evidence beyond inculpatory statements themselves.
Miranda and our subsequent cases are premised on the idea
that custodial interrogation is inherently coercive. See 384 U. S.,
at 455 (“Even without employing brutality, the ‘third degree’ or
[other] specific strategems … the very fact of custodial
interrogation exacts a heavy toll on individual liberty and trades
on the weakness of individuals”);
Dickerson v.
United
States,
530 U.
S. 428, 435 (2000). Requiring proof of a course of conduct
beyond the inculpatory statements themselves is critical to
ensuring that those statements are voluntary admissions and not the
dubious product of an overborne will.
Today’s decision thus ignores the important
interests
Miranda safeguards. The underlying
constitutional guarantee against self-incrimination reflects “many
of our fundamental values and most noble aspirations,” our
society’s “preference for an accusatorial rather than an
inquisitorial system of criminal justice”; a “fear that
self-incriminating statements will be elicited by inhumane
treatment and abuses” and a resulting “distrust of self-deprecatory
statements”; and a realization that while the privilege is
“sometimes a shelter to the guilty, [it] is often a protection to
the innocent.”
Withrow v.
Williams,
507 U. S. 680, 692
(1993) (internal quotation marks omitted). For these reasons, we
have observed, a criminal law system “which comes to depend on the
‘confession’ will, in the long run, be less reliable and more
subject to abuses than a system relying on independent
investigation.”
Ibid. (some internal quotation marks
omitted). “By bracing against ‘the possibility of unreliable
statements in every instance of in-custody interrogation,’ ”
Miranda’s prophylactic rules serve to “ ‘protect the
fairness of the trial itself.’ ” 507 U. S., at 692 (quoting
Johnson v.
New Jersey,
384 U. S. 719, 730
(1966);
Schneckloth v.
Bustamonte,
412 U. S. 218, 240
(1973)). Today’s decision bodes poorly for the fundamental
principles that
Miranda protects.
III
Thompkins separately argues that
his conduct during the interrogation invoked his right to remain
silent, requiring police to terminate questioning. Like the Sixth
Circuit, I would not reach this question because Thompkins is in
any case entitled to relief as to waiver. But even if Thompkins
would not prevail on his invocation claim under AEDPA’s deferential
standard of review, I cannot agree with the Court’s much broader
ruling that a suspect must clearly invoke his right to silence by
speaking. Taken together with the Court’s reformulation of the
prosecution’s burden of proof as to waiver, today’s novel
clear-statement rule for invocation invites police to question a
suspect at length—notwithstanding his persistent refusal to answer
questions—in the hope of eventually obtaining a single inculpatory
response which will suffice to prove waiver of rights. Such a
result bears little semblance to the “fully effective” prophylaxis,
384 U. S., at 444, that
Miranda requires.
A
Thompkins’ claim for relief under
AEDPA rests on the clearly established federal law of
Miranda and
Mosley. In
Miranda, the
Court concluded that “[i]f [an] individual indicates in any manner,
at any time prior to or during questioning, that he wishes to
remain silent, the interrogation must cease… . [A]ny statement
taken after the person invokes his privilege cannot be other than
the product of compulsion, subtle or otherwise.” 384 U. S., at
473–474. In
Mosley, the Court said that a “critical
safeguard” of the right to remain silent is a suspect’s
“ ‘right to cut off questioning.’ ” 423 U. S., at 103
(quoting
Miranda,
supra, at 474). Thus, “the
admissibility of statements obtained after the person in custody
has decided to remain silent depends under
Miranda on
whether his ‘right to cut off questioning’ was ‘scrupulously
honored.’ ” 423 U. S., at 104.[
Footnote 5]
Thompkins contends that in
refusing to respond to questions he effectively invoked his right
to remain silent, such that police were required to terminate the
interrogation prior to his inculpatory statements. In Michigan’s
view, Thompkins cannot prevail under AEDPA because this Court’s
precedents have not previously established whether a suspect’s
ambiguous statements or actions require the police to stop
questioning. We have held that a suspect who has “ ‘invoked
his right to have counsel present … is not subject to further
interrogation by the authorities until counsel has been made
available to him, unless [he] initiates further communication,
exchanges, or conversations with the police.’ ”
Maryland v.
Shatzer, 559 U. S. ___, ___ (2010)
(slip op., at 5) (quoting
Edwards v.
Arizona,
451 U. S. 477,
484–485 (1981)). Notwithstanding
Miranda’s statement that
“there can be no questioning” if a suspect “indicates in any manner
… that he wishes to consult with an attorney,” 384 U. S., at
444–445, the Court in
Davis v.
United States,
512 U. S. 452,
461 (1994) established a clear-statement rule for invoking the
right to counsel. After a suspect has knowingly and voluntarily
waived his
Miranda rights,
Davis held, police may
continue questioning “until and unless the suspect
clearly
requests an attorney.” 512 U. S., at 461 (emphasis added).
Because this Court has never decided whether
Davis’ clear-statement rule applies to an invocation of
the right to silence, Michigan contends, there was no clearly
established federal law prohibiting the state court from requiring
an unambiguous invocation. That the state court’s decision was not
objectively unreasonable is confirmed, in Michigan’s view, by the
number of federal Courts of Appeals to have applied
Davis
to invocation of the right to silence. Brief for Petitioner 44.
Under AEDPA’s deferential standard of review,
it is indeed difficult to conclude that the state court’s
application of our precedents was objectively unreasonable.
Although the duration and consistency of Thompkins’ refusal to
answer questions throughout the 3-hour interrogation provide
substantial evidence in support of his claim, Thompkins did not
remain absolutely silent, and this Court has not previously
addressed whether a suspect can invoke the right to silence by
remaining uncooperative and nearly silent for 2 hours and 45
minutes.
B
The Court, however, eschews this
narrow ground of decision, instead extending
Davis to hold
that police may continue questioning a suspect until he
unambiguously invokes his right to remain silent. Because Thompkins
neither said “he wanted to remain silent” nor said “he did not want
to talk with the police,” the Court concludes, he did not clearly
invoke his right to silence.
Ante, at 8–10.[
Footnote 6]
I disagree with this novel
application of
Davis. Neither the rationale nor holding of
that case compels today’s result.
Davis involved the right
to counsel, not the right to silence. The Court in
Davis
reasoned that extending
Edwards’ “rigid” prophylactic rule
to ambiguous requests for a lawyer would transform
Miranda
into a “ ‘wholly irrational obstacl[e] to legitimate police
investigative activity’ ” by “needlessly prevent[ing] the
police from questioning a suspect in the absence of counsel even if
[he] did not wish to have a lawyer present.”
Davis,
supra, at 460. But
Miranda itself “distinguished
between the procedural safeguards triggered by a request to remain
silent and a request for an attorney.”
Mosley,
supra, at 104, n. 10; accord,
Edwards,
supra, at 485.
Mosley upheld the admission of
statements when police immediately stopped interrogating a suspect
who invoked his right to silence, but reapproached him after a
2-hour delay and obtained inculpatory responses relating to a
different crime after administering fresh
Miranda
warnings. The different effects of invoking the rights are
consistent with distinct standards for invocation. To the extent
Mosley contemplates a more flexible form of prophylaxis
than
Edwards—and, in particular, does not categorically
bar police from reapproaching a suspect who has invoked his right
to remain silent—
Davis’ concern about “ ‘wholly
irrational obstacles’ ” to police investigation applies with
less force.
In addition, the suspect’s equivocal reference
to a lawyer in
Davis occurred only
after he had
given express oral and written waivers of his rights.
Davis’ holding is explicitly predicated on that fact. See
512 U. S.
, at 461 (“We therefore hold that, after a
knowing and voluntary waiver of the
Miranda rights, law
enforcement officers may continue questioning until and unless the
suspect clearly requests an attorney”). The Court ignores this
aspect of
Davis, as well as the decisions of numerous
federal and state courts declining to apply a clear-statement rule
when a suspect has not previously given an express waiver of
rights.[
Footnote 7]
In my mind, a more appropriate standard for
addressing a suspect’s ambiguous invocation of the right to remain
silent is the constraint
Mosley places on questioning a
suspect who has invoked that right: The suspect’s “ ‘right to
cut off questioning’ ” must be “ ‘scrupulously
honored.’ ” See 423 U. S., at 104. Such a standard is
necessarily precautionary and fact specific. The rule would
acknowledge that some statements or conduct are so equivocal that
police may scrupulously honor a suspect’s rights without
terminating questioning—for instance, if a suspect’s actions are
reasonably understood to indicate a willingness to listen before
deciding whether to respond. But other statements or actions—in
particular, when a suspect sits silent throughout prolonged
interrogation, long past the point when he could be deciding
whether to respond—cannot reasonably be understood other than as an
invocation of the right to remain silent. Under such circumstances,
“scrupulous” respect for the suspect’s rights will require police
to terminate questioning under
Mosley.[
Footnote 8]
To be sure, such a standard does not provide
police with a bright-line rule. Cf.
ante, at 9–10. But, as
we have previously recognized,
Mosley itself does not
offer clear guidance to police about when and how interrogation may
continue after a suspect invokes his rights. See
Solem v.
Stumes,
465
U. S. 638, 648 (1984); see also
Shatzer, 559 U. S., at
___ (Thomas, J., concurring in part and concurring in judgment)
(slip op., at 3). Given that police have for nearly 35 years
applied
Mosley’s fact-specific standard in questioning
suspects who have invoked their right to remain silent; that our
cases did not during that time resolve what statements or actions
suffice to invoke that right; and that neither Michigan nor the
Solicitor General have provided evidence in this case that the
status quo has proved unworkable, I see little reason to believe
today’s clear-statement rule is necessary to ensure effective law
enforcement.
Davis’ clear-statement rule is also a
poor fit for the right to silence. 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. Cf.
Soffar v.
Cockrell, 300 F.
3d 588, 603 (CA5 2002) (en banc) (DeMoss, J., dissenting) (“What in
the world must an individual do to exercise his constitutional
right to remain silent beyond actually, in fact, remaining
silent?”). By contrast, telling a suspect “he has the right to the
presence of an attorney, and that if he cannot afford an attorney
one will be appointed for him prior to any questioning if he so
desires,”
Miranda, 384 U. S., at 479, implies the need for
speech to exercise that right.
Davis’ requirement that a
suspect must “clearly reques[t] an attorney” to terminate
questioning thus aligns with a suspect’s likely understanding of
the
Miranda warnings in a way today’s rule does not. The
Court suggests Thompkins could have employed the “simple,
unambiguous” means of saying “he wanted to remain silent” or “did
not want to talk with the police.”
Ante, at 10. But the
Miranda warnings give no hint that a suspect should use
those magic words, and there is little reason to believe police—who
have ample incentives to avoid invocation—will provide such
guidance.
Conversely, the Court’s concern that police
will face “difficult decisions about an accused’s unclear intent”
and suffer the consequences of “ ‘guess[ing] wrong,’ ”
ante, at 9–10 (quoting
Davis, 512 U. S., at 461),
is misplaced. If a suspect makes an ambiguous statement or engages
in conduct that creates uncertainty about his intent to invoke his
right, police can simply ask for clarification. See
id.,
at 467 (Souter, J., concurring in judgment). It is hardly an
unreasonable burden for police to ask a suspect, for instance, “Do
you want to talk to us?” The majority in
Davis itself
approved of this approach as protecting suspects’ rights while
“minimiz[ing] the chance of a confession [later] being suppressed.”
Id., at 461. Given this straightforward mechanism by which
police can “scrupulously hono[r]” a suspect’s right to silence,
today’s clear-statement rule can only be seen as accepting “as
tolerable the certainty that some poorly expressed requests [to
remain silent] will be disregarded,”
id., at 471 (opinion
of Souter, J.), without any countervailing benefit. Police may well
prefer not to seek clarification of an ambiguous statement out of
fear that a suspect will invoke his rights. But “our system of
justice is not founded on a fear that a suspect will exercise his
rights. ‘If the exercise of constitutional rights will thwart the
effectiveness of a system of law enforcement, then there is
something very wrong with that system.’ ”
Burbine,
475 U. S., at 458 (Stevens, J., dissenting) (quoting
Escobedo v.
Illinois,
378 U. S. 478, 490
(1964)).
The Court asserts in passing that treating
ambiguous statements or acts as an invocation of the right to
silence will only “ ‘marginally’ ” serve
Miranda’s goals.
Ante, at 10. Experience suggests
the contrary. In the 16 years since
Davis was decided,
ample evidence has accrued that criminal suspects often use
equivocal or colloquial language in attempting to invoke their
right to silence. A number of lower courts that have (erroneously,
in my view) imposed a clear-statement requirement for invocation of
the right to silence have rejected as ambiguous an array of
statements whose meaning might otherwise be thought plain.[
Footnote 9] At a minimum, these
decisions suggest that differentiating “clear” from “ambiguous”
statements is often a subjective inquiry. Even if some of the cited
decisions are themselves in tension with
Davis’ admonition
that a suspect need not “ ‘speak with the discrimination of an
Oxford don’ ” to invoke his rights, 512 U. S., at 459 (quoting
id., at 476 (opinion of Souter, J.)), they demonstrate
that today’s decision will significantly burden the exercise of the
right to silence. Notably, when a suspect “understands his
(expressed) wishes to have been ignored … in contravention of the
‘rights’ just read to him by his interrogator, he may well see
further objection as futile and confession (true or not) as the
only way to end his interrogation.”
Id., at 472–473.
For these reasons, I believe a precautionary
requirement that police “scrupulously hono[r]” a suspect’s right to
cut off questioning is a more faithful application of our
precedents than the Court’s awkward and needless extension of
Davis.
* * *
Today’s decision turns
Miranda upside down. Criminal suspects must now
unambiguously invoke their right to remain silent—which,
counterintuitively, requires them to speak. 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. Today’s broad
new rules are all the more unfortunate because they are unnecessary
to the disposition of the case before us. I respectfully
dissent.
Footnote 1
At the suppression hearing, Detective Helgert
testified that after reading Thompkins the warnings, “I believe I
asked him if he understood the Rights, and I think I got a verbal
answer to that as a ‘yes.’ ” App. 9a. In denying the motion to
suppress, the trial court relied on that factual premise.
Id., at 26a. In his later testimony at trial, Helgert
remembered the encounter differently. Asked whether Thompkins
“indicate[d] that he understood [the warnings]” after they had been
read, Helgert stated “I don’t know that I orally asked him that
question.”
Id., at 148a. Nevertheless, the Michigan Court
of Appeals stated that Thompkins verbally acknowledged
understanding his rights. App. to Pet. for Cert. 75a.
Footnote 2
The Court cites
Colorado v.
Connelly,
479 U. S. 157, 168
(1986), for the proposition that the prosecution’s “ ‘heavy
burden’ ” under
Miranda “is not more than the burden
to establish waiver by a preponderance of the evidence.”
Ante, at 12.
Connelly did reject a clear and
convincing evidence standard of proof in favor of a preponderance
burden. But nothing in
Connelly displaced the core
presumption against finding a waiver of rights, and we have
subsequently relied on
Miranda’s characterization of the
prosecution’s burden as “heavy.” See
Arizona v.
Roberson,
486 U. S. 675, 680
(1988).
Footnote 3
Likely reflecting the great weight of the
prosecution’s burden in proving implied waiver, many contemporary
police training resources instruct officers to obtain a waiver of
rights prior to proceeding at all with an interrogation. See,
e.g., F. Inbau, J. Reid, J. Buckley, & B. Jayne,
Criminal Interrogation and Confessions 491 (4th ed. 2004)
(hereinafter Inbau) (“Once [a] waiver is given, the police may
proceed with the interrogation”); D. Zulawski & D. Wicklander,
Practical Aspects of Interview and Interrogation 55 (2d ed. 2002)
(“Only upon the waiver of th[e]
[Miranda] rights by the
suspect can an interrogation occur”); see also Brief for National
Association of Criminal Defense Lawyers et al. as
Amici
Curiae 11–12 (hereinafter NACDL brief) (collecting
authorities).
Footnote 4
Although such decisions are not controlling
under AEDPA, it is notable that lower courts have similarly
required a showing of words or conduct beyond inculpatory
statements. See,
e.g., United States v.
Wallace, 848 F. 2d 1464, 1475 (CA9 1988) (no implied
waiver when warned suspect “maintained her silence for … perhap[s]
as many as ten minutes” before answering a question);
McDonald v.
Lucas, 677 F. 2d 518, 521–522
(CA5 1982) (no implied waiver when defendant refused to sign waiver
and there was “no evidence of words or actions implying a waiver,
except the [inculpatory] statement”). Generally, courts have found
implied waiver when a warned suspect has made incriminating
statements “as part of a steady stream of speech or as part of a
back-and-forth conversation with the police,” or when a warned
suspect who previously invoked his right “spontaneously recommences
the dialogue with his interviewers.”
Bui v.
DiPaolo, 170 F. 3d 232, 240 (CA1 1999) (citation and
internal quotation marks omitted); see also
United States
v.
Smith, 218 F. 3d 777, 781 (CA7 2000) (implied
waiver where suspect “immediately began talking to the agents after
refusing to sign the waiver form and continued to do so for an
hour”);
United States v.
Scarpa, 897 F. 2d
63, 68 (CA2 1990) (implied waiver where warned suspect engaged in a
“ ‘relaxed and friendly’ ” conversation with officers
during a 2-hour drive).
Footnote 5
In holding that Mosley’s right had been
“ ‘scrupulously honored,’ ” the Court observed that he
was properly advised of his rights and indicated his understanding
in writing; that police “immediately ceased” interrogation when
Mosley stated he did not want to discuss the crime and allowed an
“interval of more than two hours” to pass before reapproaching
Mosley “at another location about an unrelated [crime]”; and that
Mosley was readministered “full and complete
Miranda
warnings at the outset of the second interrogation” and had a “full
and fair opportunity to exercise th[o]se options.” 423 U. S., at
103–105.
Footnote 6
The Court also ignores a second available
avenue to avoid reaching the constitutional question. Because the
Sixth Circuit declined to decide Thompkins’ invocation claim, a
remand would permit the lower court to address the question in the
first instance. Cf.
Cutter v.
Wilkinson,
544 U. S. 709, 718, n. 7
(2005).
Footnote 7
See,
e.g., United States v.
Plugh, 576 F. 3d 135, 143 (CA2 2009) (“
Davis
only provides guidance … [when] a defendant makes a claim that he
subsequently invoked previously waived Fifth Amendment
rights”);
United States v.
Rodriguez, 518
F. 3d 1072, 1074 (CA9 2008) (
Davis’ “ ‘clear
statement’ ” rule “applies only
after the police have
already obtained an unambiguous and unequivocal waiver of
Miranda rights”);
State v.
Tuttle, 2002
SD 94, ¶14, 650 N. W. 2d 20, 28;
State v.
Holloway, 2000 ME 172, ¶12, 760 A. 2d 223, 228;
State v.
Leyva, 951 P. 2d 738, 743 (Utah
1997).
Footnote 8
Indeed, this rule appears to reflect
widespread contemporary police practice. Thompkins’
amici
collect a range of training materials that instruct police not to
engage in prolonged interrogation after a suspect has failed to
respond to initial questioning. See NACDL Brief 32–34. One widely
used police manual, for example, teaches that a suspect who
“indicates,” “even by silence itself,” his unwillingness to answer
questions “has obviously exercised his constitutional privilege
against self-incrimination.” Inbau 498.
Footnote 9
See
United States v.
Sherrod, 445 F. 3d 980, 982 (CA7 2006) (suspect’s
statement “ ‘I’m not going to talk about nothin’ ’ ” was
ambiguous, “as much a taunt—even a provocation—as it [was] an
invocation of the right to remain silent”);
Burket v.
Angelone, 208 F. 3d 172, 200 (CA4 2000) (upholding on
AEDPA review a state court’s conclusion that “ ‘I just don’t
think that I should say anything’ ” was not a clear request to
remain silent);
State v.
Jackson, 107 Ohio St. 3d
300, 310, 2006–Ohio–1, ¶¶96–98, 839 N. E. 2d 362, 373 (finding
ambiguous “ ‘I don’t even like talking about it man … I told
you … what happened, man … I mean, I don’t even want to, you know
what I’m saying, discuss no more about it, man’ ”);
State v.
Speed, 265 Kan. 26, 37–38, 961
P. 2d 13, 24 (1998) (finding ambiguous “ ‘[a]nd since
we’re not getting anywhere I just ask you guys to go ahead and get
this over with and go ahead and lock me up and let me go and deal
with Sedgwick County, I’m ready to go to Sedgwick County, let’s
go’ ”);
State v.
Markwardt, 2007 WI App 242,
¶1, 306 Wis. 2d 420, 424, 742 N. W. 2d 546, 548 (“ ‘Then
put me in jail. Just get me out of here. I don’t want to sit here
anymore, alright? I’ve been through enough today’ ” ambiguous
because it could be construed as part of
“ ‘thrust-and-parry’ ” between suspect and interrogator);
State v.
Deen, 42,403, pp. 2–4 (La. App.
4/27/07), 953 So. 2d 1057, 1058–1060 (“ ‘Okay, if you’re
implying that I’ve done it, I wish to not say any more. I’d like to
be done with this. Cause that’s just ridiculous. I wish I’d … don’t
wish to answer any more questions’ ” ambiguous because
conditioned on officer’s implication that suspect committed
specific assault). Courts have also construed statements as
expressing a desire to remain silent only about a particular
subject. See,
e.g., People v.
Silva, 45
Cal. 3d 604, 629–630, 754 P. 2d 1070, 1083–1084 (1988)
(“ ‘I really don’t want to talk about that’ ” only
conveyed unwillingness to discuss certain subjects). See generally
Strauss, The Sounds of Silence: Reconsidering the Invocation of the
Right to Remain Silent under
Miranda, 17 Wm. & Mary
Bill Rights J. 773, 788–802 (2009) (surveying cases).
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