EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, November 30, 2010

Say Anything?: Jeopardy Question About New Miranda Opinion Gets It Almost Completely Correct

Last night's episode of Jeopardy! featured the category "A Murder Investigation," with The Closer's Kyra Sedgwick reading the clues. The $1000 clue in the category was:

Getting confessions, Brenda's specialty, will be easier now that the Supreme Court has ruled that any response to interrogation means you've waived your rights under this 1966 decision

And the Question/Answer was Miranda v. Arizona, 384 U.S. 436 (1966). But what was the Supreme Court ruling referenced in the clue, and is it really true that any response to interrogation means that a suspect has waived his Miranda rights?

The opinion referenced in the clue is the Supreme Court's recent opinion in Berghuis v. Thompkins, 130 S. Ct. 2250 (2010). In Thompkins, Van Chester Thompkins was arrested in connection with a mall shooting in Michigan, and Detective Helgert presented him with the following form derived from Miranda:


1. You have the right to remain silent.

2. Anything you say can and will be used against you in a court of law.

3. You have a right to talk to a lawyer before answering any questions and you have the right to have a lawyer present with you while you are answering any questions.

4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.

5. 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.” Brief for Petitioner 60 (some capitalization omitted).

At the detective's behest, Thompkins read the fifth warning out loud to ensure that Thompkins could read (English) and then read the other four Miranda warnings out loud and asked Thompkins to sign the form to demonstrate that he understood his rights, "but Thompkins declined to sign the form." It is unclear whether Thompkins later verbally confirmed that he understood the rights listed on the form, but it is clear that officers then began an interrogation of him.

At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney....Thompkins was "[l]argely" silent during the interrogation, which lasted about three hours....He did give a few limited verbal responses, however, such as "yeah," "no," or "I don't know." And on occasion he communicated by nodding his head....Thompkins also said that he "didn't want a peppermint" that was offered to him by the police and that the chair he was "sitting in was hard."...

About 2 hours and 45 minutes into the interrogation, Helgert asked Thompkins, "Do you believe in God?"...Thompkins made eye contact with Helgert and said "Yes," as his eyes "well[ed] up with tears."...Helgert asked, "Do you pray to God?" Thompkins said "Yes."...Helgert asked, "Do you pray to God to forgive you for shooting that boy down?"...Thompkins answered "Yes" and looked away....Thompkins refused to make a written confession, and the interrogation ended about 15 minutes later....

At trial, Thompkins was convicted after his statements during this interrogation were presented into evidence, and he appealed, claiming, inter alia, that

(1) he “invoke[d] his privilege” to remain silent by not saying anything for a sufficient period of time, so the interrogation should have “cease[d]” before he made his inculpatory statements; and

(2) he did not waive his right to remain silent.

His appeal eventually reached the United States Supreme Court, which rejected his first argument, finding that "an accused who wants to invoke his or her right to remain silent to do so unambiguously." In other words, a suspect must affirmatively and unambiguously invoke his right to remain silent, and merely remaining silent (i.e., mere silence) does not invoke the right to remain silent.

And, in rejecting Thompkins' second argument, the Court concluded that a waiver of the right to remain silent does not have to be explicit; instead, "[w]here the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent."

So, Jeopardy! almost got it completely right. Why do I say almost? Well, according to the Court,

If the State establishes that a Miranda warning was given and the accused made an uncoerced statement, this showing, standing alone, is insufficient to demonstrate "a valid waiver" of Miranda rights....The prosecution must make the additional showing that the accused understood these rights.



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