The significance of silence

Hush! My silence means I might speak! My silence has a Beckettian significance.

"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."

Sotomayor J (joined by Stevens, Ginsburg and Breyer JJ) in Berghuis v Thompkins [2010] USSC No 08-1470, 1 June 2010, criticised the majority's undermining of the "heavy burden" on the prosecution to show that a suspect waived his Miranda right to silence, and the majority's acceptance of silence in the face of police questioning as not being an assertion of the right to remain silent.

She pointed out that the question of waiver has been treated as entirely different from the question of invocation of the right to silence. It was not for the accused to prove that he invoked the right, it was for the prosecution to prove that he waived it, citing Smith v. Illinois, 469 U. S. 91, 98 (1984) (per curiam). This burden was characterised as heavy in Arizona v. Roberson, 486 U. S. 675, 680 (1988).

In Berghuis v Thompkins the suspect had remained silent (except for an occasional single word non-committal response, and commenting that his chair was hard, and that he did not want a peppermint) throughout two and three quarter hours of police interrogation, until he was asked if he had prayed to God for forgiveness for the shooting, to which he replied with only one word, "Yes".

The opinion of the Court was delivered by Kennedy J. The majority denied that a custodial interrogation was inherently coercive. The Miranda right to silence is to be treated in the same way as the Miranda right to counsel: it must be invoked unambiguously and once invoked the interrogation must stop. Thus here it was for Mr Thompkins to say that he did not want to speak. Waiver occurred when he answered the question. There was, said the majority, no evidence that Mr Thompkins did not understand what he was giving up when he spoke, or that his answer was in any sense involuntary.

The police do not, held the majority, need to establish a waiver at the outset before embarking on an interrogation. If the suspect understands his rights he can review his position as the questioning proceeds, if he wishes. By saying he will remain silent he can terminate the interrogation.

"The prosecution therefore does not need to show that a waiver of Miranda rights was express. An "implicit waiver" of the "right to remain silent" is sufficient to admit a suspect's statement into evidence. Butler, [441 U. S.] at 376. Butler made clear that a waiver of Miranda rights may be implied through "the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver." 441 U. S., at 373. The Court in Butler therefore "retreated" from the "language and tenor of the Miranda opinion," which "suggested that the Court would require that a waiver be 'specifically made.' " Connecticut v. Barrett, 479 U. S. 523, 531–532 (1987) (Brennan, J., concurring in judgment)."

So here, in the absence of an express invoking of the right to silence, once the prosecution established that the suspect understood the rights, waiver of the right was established by what the majority regarded as a course of conduct: prolonged silence in the face of interrogation, and then an incriminating one-word response.

"In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police. The police, moreover, were not required to obtain a waiver of Thompkins's right to remain silent before interrogating him."

Would the same result have occurred in Canada? See R v Turcotte, discussed here 5 October 2005.

One of the law's little dishonesties (to add to the one I mentioned on 13 January 2010 and in continuation of the theme noted on 3 March 2005) found in many jurisdictions, is the giving of rights in a constrained way, without clear explanation of how they can be exercised. Here is the advice Mr Thompkins was given pursuant to Miranda:

"NOTIFICATION OF CONSTITUTIONAL RIGHTS AND STATEMENT

"1. You have the right to remain silent.

"2. Anything you say can and will be used against you in a court of law.

"3. You have a right to talk to a lawyer before answering any questions and you have the right to have a lawyer present with you while you are answering any questions.

"4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.

"5. You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned."

I would have thought, on the basis of what he had been told in para 5 of this notification, that in not answering questions Mr Thompkins was exercising the right in para 1. But given that silence in the face of questioning is not in law an assertion (or "invocation") of the right to remain silent, and that silence does not preclude some future waiver of the right, the Court should have taken the opportunity to make the statement of rights clearer. It should have added to para 5 a statement that questioning will stop when the person asks the police to stop questioning.