Silence is not golden for defense

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The U.S. Supreme Court has ruled that the right to remain silent can only be exercised by speaking.

In a 5-4 opinion on June 1, the court held that actual silence in the face of interrogation, no matter how long, fails to suffice as an invocation of the right to remain silent.

Justice Anthony M. Kennedy wrote for the majority that anything other than a bright line rule would place police officers in a difficult position when an accused’s intent is unclear.

But Justice Sonia Sotomayor wrote in dissent, “Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent — which, counterintuitively, requires them to speak.”

Sound of Silence

Van Chester Thompkins was arrested for murder. At the beginning of the interrogation, he was advised of his Miranda rights. However, he refused to sign the form acknowledging that he understood them.

For nearly three hours, Thompkins remained silent during interrogation, without orally invoking his right to an attorney, or to remain silent. Finally, in response to a series of three questions, Thompkins confessed that he prays to God for shooting the victim.

A Michigan state court admitted the statement at trial and the state appellate courts affirmed his conviction.

Thompkins then sought habeas corpus review in federal court, but the district court rejected his petition. The Sixth Circuit Court of Appeals reversed, holding that Thompkins’ persistent silence constituted a clear and unequivocal assertion of the right to silence.

The U.S. Supreme Court granted review and reversed.

Because the case arose as a federal habeas corpus petition reviewing a state court ruling, the court could have held only that there is no clearly established federal law requiring suppression of the statement.

But the court went further, holding that the state trial court’s denial of the suppression motion was correct.

The court held, as a matter of first impression, that the same rules that apply to invoking the right to counsel also apply to the right to remain silent.

In Davis v. U.S., 512 U.S. 452, 459 (1994), the court held that, if an accused wants to invoke the right to counsel, he must do so unambiguously and unequivocally.

In the case at bar, the court determined that there is no principled reason to adopt a different standard in weighing whether an accused has invoked the right to remain silent.

Adopting the same reasoning as employed in Davis, Justice Kennedy wrote for the court, “There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously. … If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression ‘if they guess wrong.’”

The court concluded, “Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Here he did neither, so he did not invoke his right to remain silent.”

Waiver

The court next held that Thompkins waived his right to remain silent.

To demonstrate waiver, the government must show that Miranda warnings were given, the accused understood them, and he made an uncoerced statement.

Finding nothing in the record to show that Thompkins did not understand his rights, or that he was coerced, the court held that he implicitly waived his right to remain silent.

The Dissent

Justice Sotomayor wrote a dissent, joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg, and John Paul Stevens.

The dissent found the majority opinion inconsistent with admonitions in North Carolina v. Butler, 441 U.S. 369 (1979), that lengthy interrogation prior to obtaining a waiver of the right to silence is strong evidence against the finding of a valid waiver.
Sotomayor wrote, “[T]oday’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.”

Case analysis

The opinion is consistent with longstanding Wisconsin precedent. However, it changes the analysis by requiring courts to analyze separately whether the accused invoked the right to remain silent, and whether he waived the right.

In State v. Ross, 203 Wis.2d 66, 552 N.W.2d 428, 432 (Ct.App.1996), the Wisconsin Court of Appeals held that, just as an accused must unambiguously invoke the right to counsel, so too must he unambiguously invoke the right to remain silent.

The court wrote, “A suspect must, by either an oral or written assertion or non-verbal conduct that is intended by the suspect as an assertion and is reasonably perceived by the police as such, inform the police that he or she wishes to remain silent. … If the suspect does not unambiguously invoke his or her right to remain silent, the police need not cease their questioning of the suspect.” Id., 552 N.W.2d at 432-433.

This remains an accurate statement of the law in light of the Supreme Court’s holding in Thompkins.

There is a big factual difference in the two cases that is noteworthy, however. In Thompkins, the accused remained silent for almost three hours during questioning, before he answered questions. In Ross, it was only five to 20 seconds before he started confessing. Id., at 430.

The distinction is relevant, because five to 20 seconds is not much time for an officer to do anything that could constitute coercion. In contrast, where an interrogation lasts almost three hours, a defense attorney arguing coercion has much more to work with.

This is important to the different analytical frameworks employed in Ross and Thompkins. In Ross, the court held that the accused failed to invoke the right to remain silent, then ceased its analysis.

In Thompkins, however, the court devoted less than three pages of its opinion to concluding that Thompkins failed to invoke his right to remain silent. It then devoted nearly five pages to considering whether he waived the right or was coerced.

Thus, the opinion is not wholly without benefit to defense attorneys. On the down side, it does foreclose any argument that silence can equate to assertion of the right to remain silent.

However, it also makes clear that failure to assert the right does not equate to waiver of the right.

To put it another way, the statement by Wisconsin Court of Appeals in Ross is more solid than ever: “If the suspect does not unambiguously invoke his or her right to remain silent, the police need not cease their questioning of the suspect.”

However, the longer the questioning goes on, the more opportunity the accused has to argue that the statement he ultimately made was coerced, and therefore inadmissible.