Yesterday's decision by the US Supreme Court in Berghuis v. Thompkins has been in the news quite a bit, as it will have quite an impact on 5th amendment cases in the future and will certainly, as dissenting Justice Sotomayor observed, "turn Miranda upside down."

I have talked about Miranda in other posts , but this case really puts everyone on notice of what they have to do to protect their rights against self-incrimination. To the point: Don't be shy, speak up. Tell them you want a lawyer!

Prior to this case, the burden was on the police to show a "knowing and intelligent" waiver of Miranda. Many police departments were told not to start questioning a suspect until that person signed a waiver form. Now, as Justice Kennedy observed in his opinion for the court, a waiver form is not required before police start questioning a suspect.

In this case, the defendant was arrested in connection with a shooting outside a mall in Southfield, Michigan. The police read him his rights, and Thompkins indicated that he understood those rights. He just didn't sign the form. He was then questioned for almost three hours, whereupon when asked if he prayed to God to forgive him for the shooting, he said "Yes." He did not sign a confession nor say anything else, but the damage had been done; he was convicted.

Although the conviction was overturned by the US Court of Appeals, the Supreme Court upheld the conviction setting forth this standard: Someone who wants to invoke his rights under Miranda must make an "unambiguous" statement to that effect.

Had Thompkins said he wanted to remain silent, he would have been protected. In the dissent, Justice Sotomayor said that this rule would be confusing in practice. She said, "Criminal suspects must now unambiguously invoke their right to remain silent - which, counterintuitively, requires them to speak."

On the one hand, the 5th Amendment right, as protected under Miranda, has been enforced strictly for decades. It is a very basic right that we hold dear. On the other hand, the question becomes, who carries the burden to protect it? What are the police, those charged with investigating crimes and finding the perpetrators, expected to do? What about the defendant? Where is his obligation to speak up?

The real issue here is one of proofs, though, not who has the burden. Written waivers of Miranda are more unequivocal than a verbal invocation of the right. What happens in the absence of a writing, or a videotape of the interrogation, when a defendant says he told the police that he didn't want to answer questions, and wanted a lawyer, and the police say he didn't? Having clear rules on what needs to be said when is good for both sides, but how do you prove that the rules were followed under this recent decision?


Steven J. Richardson
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Bankruptcy, Collections, Student Loan, DUI and Traffic Court attorney in Woodbury, NJ.