According to the Supreme Court, silence is no longer golden

Recently, the U.S. Supreme Court handed down its decision in Berghuis v. Thompkins, No. 08-1470.

At issue in Berghuis was whether the defendant, Van Chester Thompkins, a suspect in a shooting, waived his Miranda rights by remaining silent and then, after three hours of interrogation, responding to a question from one of the interrogating officers with a one-word response.

The Court held, in a 5-4 decision written by Justice Kennedy, that by remaining silent the defendant did not invoke his right to remain silent.

The Court also concluded that when Thompkins ultimately spoke to police following a three hour period of silence, his actions were knowing and voluntary, thus he waived his right to remain silent.

In the dissent, Justice Sotomayor explained the second half of the holding as follows: "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."

In other words, the majority deemed that any ambiguity be construed in favor of the police, since interrogating officers are apparently too thick to comprehend silence indicates a desire to be silent.

Or, as Justice Kennedy explained in the majority opinion: "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.'"

Because, really, the last thing we want police officers to do is to think. And in their defense, one would necessarily require a degree in quantum physics to make the deduction that a prolonged period of silence on behalf of a defendant from the very start of an interrogation indicated a desire to remain silent.

So, it would seem that the motivation behind the decision is to protect the police from their own stupidity. Because otherwise, the dimwitted police might face the oh-so-embarrassing happenstance of suppression of evidence, should they violate an accused's constitutional right to remain silent.

That's what bothers me the most about this decision: When its distilled down to its essence, there is an underlying assumption that police are less savvy and intelligent than the suspects whom they interrogate.

That's certainly not the case when it comes to police procedures. No one knows how to walk that fine line between lawful and unlawful behavior better than the police, especially when it comes to interrogations.

On the other hand, when it comes to Miranda rights, the jurisprudence has become so complicated, that the invocation of those rights requires specific words, which vary depending on the jurisdiction in which you're arrested.

In order to successfully invoke Miranda rights, an accused must either accidentally stumble on the correct choice of words or take a course to learn about the proper way to protect one's constitutional rights.

Even that's not as simple as it seems, however.

Just a few weeks ago, two Norfolk, Va. high school teachers were placed on administrative leave after a parent complained about their efforts to educate students about the proper invocation of their constitutional rights when stopped by the police.

The lesson to be learned is that, in the wake of Berghuis, U.S. citizens would be wise to take to the Internet and educate themselves regarding the protection of their rights during an encounter with the police.

Because, according to the U.S. Supreme Court, if you don't properly invoke a Constitutional right, you lose it.

Nicole Black, a Rochester attorney, co-authors the ABA book "Social Media for Lawyers: the Next Frontier," co-authors "Criminal Law in New York," a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at

Published: Mon, Aug 2, 2010


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