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Miranda Revisited

And you thought you needed a waiver. Well, you do, but it is self-actualizing according to the Supreme Court’s recent decision on the Miranda warnings. On June 1, 2010, the Supreme Court clarified its Miranda waiver requirement and made it easier for police to obtain an admissible confession.

Historically, the most frequently recurring custodial interrogation scenario involved giving a suspect Miranda warnings and then seeking to obtain the suspect’s waiver of those rights—prior to asking interrogative questions—by asking a question like, “Having these rights in mind, are you willing to answer questions now without a lawyer present?” In Berghuis v. Thompkins

, the Court makes clear that police are permitted, after assuring that a subject understands his rights, to simply proceed with questioning, as long as the subject does not invoke his right to silence or counsel.

The subject’s response to questions, assuming he knew and understood his right not to answer, shows his waiver of the right to silence. So, a waiver of rights is still required before the suspect’s statement will be admissible in court, but police can establish the waiver, an implied waiver, by proving the suspect understood the Miranda advisement and thereafter gave a voluntary (not coerced) statement. For the first time, it is now clear that the waiver of Miranda rights can come after (and in response to) the commencement of interrogation.

Berghuis v. Thompkins


Thompkins was a suspect in a multiple shooting in Michigan. He was located in Ohio a year later, and Michigan investigators went to interrogate him. One of the officers presented a standard Miranda form to Thompkins and had him read one of the warnings out loud. The officer then read the remaining warnings out loud to Thompkins and asked him to sign the form. Thompkins declined to sign it. There was disputed evidence indicating that Thompkins then verbally acknowledged that he understood his rights. The officers proceeded with an interrogation.

Thompkins was “largely silent” throughout the interrogation, although he occasionally nodded and gave limited verbal responses such as “yeah” or “no.” Approximately two hours and 45 minutes into the interrogation, a detective asked him if he believed in God and if he prayed. Thompkins responded “yes” to both questions. The detective then asked if he prayed to God for forgiveness “for shooting that boy down,” and again Thompkins answered “yes.” He refused to give a written statement, but his verbal responses were used against him in trial. He was convicted of murder and sentenced to life without parole.

Silence Does Not Invoke Rights

Throughout the nearly three-hour interrogation, Thompkins spoke very few words. He claims that by not talking to law enforcement and remaining nearly silent for a sufficient period, he effectively invoked his right to silence, requiring the detectives to end the interrogation before he made his incriminating statement. The Court was not persuaded by this position and instead imposed a stringent standard on suspects invoking their right to silence.

The Court previously required suspects to invoke the right to counsel with a clear and unambiguous request. In Berghuis, the Court announced that the same standard now applies when a suspect invokes the right to silence. Henceforth, a suspect may only invoke the right to silence by making an “unambiguous statement” that he either wants to remain silent or that he does not want to talk with police. Thompkins failed to invoke his right to silence because he never made either of these statements to the officers.

The fact that a suspect does not invoke the right to silence is not enough to render his statement admissible in court. Police must still establish that the suspect “knowingly and voluntarily waived” his Miranda rights. However, the suspect’s waiver of rights does not have to be explicitly stated; it can be constructed from the situation. In North Carolina v. Butler

, the Court decided that waivers may be implied through “the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver.”

In Berghuis

, suspect Thompkins never expressly waived his right to silence, but the Court found an implied waiver based on three factors. First, the police properly read the Miranda rights to the suspect, and he understood them, satisfying the “knowing” requirement of a waiver.

Second, Thompkins’ response to the officer’s question about “praying to God for forgiveness” was sufficient to show a course of conduct indicating waiver. He could have said nothing in response to the questions, or he could have unambiguously invoked his right to silence. Instead, he responded to the questions. Third, his statement was given voluntarily with no indication of police coercion.

Any waiver, explicit or implied, must meet the “knowing and voluntary” requirements. In this case, these conditions were satisfied by the same evidence—that Thompkins understood the rights he was giving up, and that he spoke voluntarily, without coercion from the police. It was Thompkins’ limited verbal response (he said “yes”) that established the “course of conduct” which showed the inferred waiver.

Waiver Not Needed Before Interrogation

The final waiver issue that the Court clarified is that the waiver of Miranda rights does not have to occur before interrogation begins. Thompkins argued that police are required to obtain a waiver of rights before they begin questioning, and that if Thompkins’ response to the “prayer for forgiveness” question established the implied waiver, then obviously the police did not obtain the waiver prior to questioning.

Rejecting this idea, the Court referred back to their words in North Carolina v. Butler

: “… in at least some cases, waiver can be clearly inferred from the actions and words of the person interrogated.” Though in Butler

the implied waiver came before questioning began, by the suspect saying, “I will talk to you, but I am not signing any form,” the Court’s new decision makes it apparent that interrogation may proceed without a prior waiver.

Although the Court professes that it had previously answered this question, it was a fine point of law on which both legal scholars and interrogation instructors had disagreed. The answer to the question is now clear. If the suspect is properly advised of Miranda rights and does not expressly invoke them, police may proceed with interrogation, and the suspect’s conduct during the interrogation may subsequently establish his waiver of custodial interrogation rights.

The Supreme Court’s “clarifications” have somewhat tightened the requirements for invoking Miranda rights and loosened Miranda waiver requirements—both positions that favor law enforcement. To obtain an admissible statement from an in-custody suspect, interrogators still must begin with a suitable advisement of Miranda rights, and police still must obtain a waiver of those rights.

If at any point during the interrogation the suspect invokes Miranda rights (to silence or to counsel), police still must immediately stop the questioning. However, a binding invocation of the right to silence now requires the suspect to make an unambiguous statement asserting that he does not want to talk to law enforcement or that he wants to remain silent.

Obtaining a waiver of Miranda rights just got easier. If a suspect, once advised of rights and apparently understanding them, does not unambiguously invoke his Miranda rights, police may proceed with interrogation. The waiver of rights does not have to precede questioning. The common police practice of asking the suspect after the advice of rights whether he is willing to answer questions is not required. The suspect’s conduct during the interrogation may establish an implicit waiver. Giving responses to questions that you know you don’t have to answer can show your waiver of your right to remain silent.

Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at He can be reached directly at

In her 20-year career with law enforcement, Pam McDonald has been a patrol officer, a felony investigator, a felony prosecutor and a college professor in the area of police law. She currently serves as head of the Thomas & Means publications section and assists Randy Means in much of his work. She can be reached at

Published in Law and Order, Aug 2010

Rating : 5.5

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