On June 1, 2010, the US Supreme Court, in Berghuis v. Thompkins, chose to put a dent in a suspect’s Fifth Amendment right to remain silent and significantly altered law enforcement obligations that were established in Miranda v. Arizona more than 40 years ago.  In yet another controversial a 5-4 vote, the Court for the first time made two things clear about Miranda rights: first, if a suspect does not want to talk to police — that is, to invoke a right to silence — he must say so, with a clear statement because it is not enough to sit silently or to remain uncooperative, even through a long session; and, second, if the suspect finally answers a suggestive question with a one-word response that amounts to a confession, that, by itself, will be understood as a waiver of the right to silence and the statement can be used as evidence. Police need not obtain an explicit waiver of that right. The net practical effect is likely to be that police, in the face of a suspect’s continued silence after being given Miranda warnings, can continue to question him, even for a couple of hours, in hopes eventually of getting him to confess.

The Thompkins decision will find a happy audience in state and local law enforcement agencies. Defense attorneys, on the other hand, are less excited about the high court’s decision.


On Jan. 10, 2000, a shooting occurred outside a mall in Southfield, Mich. There were two victims: Samuel Morris, who died from multiple gunshot wounds, and Frederick France, who later recovered and testified.  A year after the shooting, Van Chester Thompkins, a suspect who had fled, was arrested in Ohio. Prior to the interrogation, the officers gave Thompkins a form with the Miranda warnings. Thompkins himself read the fifth warning aloud: “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.  The other four warnings were read aloud by one of the interrogating officers.  Thompkins refused to sign a form to demonstrate that he understood his rights, but at no point did he say he wanted to remain silent or that he wanted an attorney.

After two hours and forty-five minutes, in which Thompkins remained “largely silent,” he was asked whether he believed in God and whether he prayed to God. Thompkins answered affirmatively to both questions. Thompkins was then asked if he “pray[ed] to God to forgive [him] for shooting that boy down?”  He again responded, “Yes.”  He refused to make a written confession, and the interrogation ended 15 minutes later.  The prosecutor used Thompkins’ admission to convict him.


More than four decades after the Supreme Court ordered police to warn suspects about their rights before questioning them, the actual day-to-day practice has not turned out to be a simple ritual under clear ground rules. As we at Mikell Law Firm have witnesed again and again, encounters in interrogation rooms still and often are a test of wills, with detectives trying to get answers and suspects trying to avoid talking themselves into deeper trouble. As a result, the Court often has had to reinterpret its 1966 decision in Miranda v. Arizona. It did so again in the Thomkins case, and this time the result decisively tilted the warnings procedure toward the police.