Sherry F. Colb

The Supreme Court Considers a Miranda Rights Case

By SHERRY F. COLB


Wednesday, October 14, 2009

This term, in the case of Berghuis v. Thompkins, the U.S. Supreme Court will consider the question whether police may interrogate a suspect in custody when the suspect, after receiving the Miranda warnings, has neither explicitly waived, nor explicitly invoked, his right to remain silent.

To answer this question is to decide on what the default rule ought to be, after Miranda warnings are given and understood, in the absence of input from a suspect. Should we presume that the suspect is willing, or unwilling, to undergo interrogation? The likely answer to this question will turn on the reason the Court decided Miranda as it did and the Court's current relationship with that decision.

The Facts of Thompkins

The story of this case began when the police picked up Van Chester Thompkins in Ohio for murder and attempted murder. After taking him into custody, the officers read him Miranda warnings and asked whether he understood them. He indicated that he did. He did not, however, either invoke his rights (by saying, for example, "I don't want to answer any questions" or "I want a lawyer") or explicitly waive them (by expressing an affirmative desire or willingness to answer questions).

The police then began to interrogate Thompkins about the suspected murder, and he responded with short verbal and nonverbal answers and without much elaboration. To one of the questions – asking whether Thompkins prayed to God for forgiveness for "shooting that boy down" – he responded "Yes." The government later offered into evidence this affirmative response, an apparent confession, at Thompkins's trial, which ended in convictions for murder, attempted murder, and firearm offenses.

Thompkins unsuccessfully appealed his convictions in the Michigan courts and then brought a petition for habeas corpus in federal court. The district court denied the petition, but the U.S. Court of Appeals for the Sixth Circuit reversed, finding that Thompkins's statement to police should have been suppressed, because he had not waived his Miranda rights. That ruling and other issues I shall not discuss here are now to be reviewed by the Supreme Court.

Why Miranda Warnings At All?

To figure out how to assess a supposed Miranda waiver, it is important to understand what motivated the Court to reach its decision in Miranda in the first place. Prior to Miranda, courts considered the voluntariness of a suspect's statements to the police on a case-by-case basis. This inquiry turned out to be quite complicated, particularly in light of the fact that police interrogation occurred behind closed doors. In response, the Supreme Court attempted to create a simpler process for ensuring Fifth Amendment compliance in custodial interrogations, and Miranda was the result.

Any attempt to discern whether a suspect has answered officers' questions voluntarily is, at some level, bound to fail. We must decide precisely how much pressure is too much – from a normative standpoint – before we can call a response "involuntary." Any time a suspect chooses to answer (even if the choice is motivated by a fear of death at the hands of police), it is literally "voluntary" in that no one physically forced him to utter particular words by grabbing his mouth and making him do so. At the same time, it will rarely be the case that a suspect's responses to interrogation were not at least prompted by the fact of police questioning. Thus, the inquiry turned out to be about whether a statement was voluntary enough, and it was difficult to keep the answers to that inquiry consistent and determinate.

Instead of requiring the courts to continue the "voluntariness" inquiry, Miranda held that police would have to follow procedures that would ameliorate the "inherently coercive" atmosphere of custodial interrogation and allow suspects to exercise some power. To accomplish this, Miranda reversed the ordinary presumption – that a person who prefers not to answer the government's questions calling for self-incrimination can simply invoke the Fifth Amendment – in favor of a presumption of coercion. To rebut the presumption, the government would have to demonstrate that a suspect knowingly and intelligently decided to waive his rights, as read to him by the police.

In this scheme, the warnings that Miranda requires are intended to remind or inform the suspect of the right not to answer police questions – useful information, if one is to exercise or waive one's rights on full information. In addition, because the atmosphere of police custody makes a person feel less in control and less able to exercise agency than under ordinary circumstances, the knowledge that one has – and that the police are prepared to honor – the right not to say anything, can shift an otherwise troubling power dynamic. Hearing a person say out loud that one need not submit to questioning facilitates a refusal to submit to that questioning. And if the suspect's saying no is easier, then it becomes more legitimate to conclude later that when the suspect spoke, he truly was speaking voluntarily.

The goals that Miranda serves then are, at least in theory, twofold: First, it empowers the suspect to make a voluntary decision whether or not to speak; and second, it permits a court to be more confident about concluding that a statement in fact was voluntary, because proper procedures were followed. This means that rather than engaging in endlessly frustrating and artificial attempts to figure out whether a statement was "voluntary," courts can simply focus on whether or not the warnings were given and whether or not the suspect waived the rights presented. Such facts are easier to discern than the presence or absence of the elusive "voluntariness."

How the Police Operate in the Real World: Despite Miranda, Pressure to Speak Continues, and the Presence of Counsel Is Not Automatic

The problem with Miranda, if one truly wants to empower suspects (and to know that any statements given are really voluntary), is that police have a deep conflict of interest when it comes to the warnings. Police very much want suspects to waive their rights and to feel that despite the warnings that they have just received, they really should answer questions. Stated differently, police want to pressure suspects to submit to interrogation, even as they are articulating warnings about the dire consequences that might ensue if such submission occurs ("anything you say can and will be used against you in a court of law"). As a result, the attitude and desires of the messenger are likely to soften the power of the message.

Despite this problem, moreover, the Supreme Court has not insisted on bringing defense attorneys into the picture. One of the warnings promises a right to an attorney, yet the suspect is fully able to waive that right, along with all of the others, without the intercession of an attorney or the presence of any other non-prosecution-oriented party. Thus, the suspect – the very one who is presumed unable to protect his own interests effectively while in custody – must, in the end, fend for himself while in custody.

When given the opportunity to counter this reality in the past, the Court has declined. For example, in Davis v. United States, the Court held that if a suspect who previously waived his rights subsequently invokes the right to counsel in an ambiguous way, the invocation does not count, and the police may proceed with an interrogation without supplying an attorney. Though ambiguity could well reflect a lack of self-confidence (of the sort that gave rise to the Miranda warnings in the first place), the Court still requires that an invocation be unequivocal in order for it to defeat a prior waiver.

The reason for the Court's hesitation, I suspect, is a genuine ambivalence about custodial interrogation. On the one hand, the Justices recognize that such interrogation is inherently coercive and can easily escalate into something in plain violation of the Fifth Amendment. To combat this truth, suspects receive warnings and an opportunity to avoid questioning or ask for an attorney. On the other hand, the Court likes it when people confess (provided that the confessions are plausibly considered voluntary) and fears that if we are too quick to presume a Miranda violation, the result could be the suppression of useful, probative, and perfectly acceptable confessions that could help put away serious criminals.

The Compromise of Miranda

The Justices' ambivalence about confessions produced by police interrogation emerges whenever a new Miranda case appears before the Court. In Minnesota v. Dickerson, for instance, the Court held that Miranda is a constitutional decision and therefore could not be overruled by a federal statute purporting to admit into evidence all voluntary statements, regardless of whether or not the police had observed the dictates of Miranda. At the same time, though, the Court has left in place the special Miranda exceptions (such as that allowing non-Mirandized statements to be introduced against a defendant for impeachment purposes) that do not apply to straightforward Fifth Amendment violations.

In light of the Court's ambivalence, it is difficult to predict how it will decide the Thompkins case. On the one hand, the suspect never explicitly waived his rights, and the default setting, based on the Court's precedents, is that the invocation of Miranda rights is presumed, because custody is inherently coercive. In other words, unlike a suspect who is free in the outside world, a suspect who is in custody does not have to say "I refuse to answer." Instead, his refusal is presumed unless he affirmatively demonstrates a willingness to answer questions.

On the other hand, Thompkins did receive the relevant warnings and indicated that he understood them. And when the police asked him questions, he answered those questions. Perhaps, then, he demonstrated his willingness to answer questions by simply answering them, even after learning that police were required, and were willing, to take no for an answer.

My tentative prediction is that the Court will reverse the ruling of the Sixth Circuit and hold that a suspect can implicitly waive Miranda rights by willingly answering police questions. If it does so, then Miranda may continue to evolve in the direction of being a tool for law enforcement rather than a shield for suspects.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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