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Every fan of police dramas knows the routine. As a suspect is being arrested, police officers slap the cuffs on and say, "You have the right to remain silent. Anything you say can and will be used against you in a court of law ... " In some scenes, after they go through the whole routine, including the right to counsel, an officer will say something like, "Do you understand these rights as I have explained them to you?" eliciting a nod or a grunt of assent.
The speech is known as the Miranda warning, based on the landmark 1966 Supreme Court case of Miranda v. Arizona. The High Court ruled that failing to advise people in custody of their rights to counsel and to silence during police interrogation violates their Fifth Amendment rights against self-incrimination.
But real life arrests don't go as smoothly as the collars on TV. Sometimes it's not clear whether the defendant has invoked the right to silence, nor is it always clear what police can do when faced with a taciturn defendant. Case in point: the 2001 arrest of Van Chester Thompkins in connection with a drive-by shooting that killed one man and wounded another. Southfield, Michigan police officers recited Thompkins' Miranda rights, and Thompkins read one of the warnings aloud, indicating that he could read and understand English. However, he did not explicitly waive or invoke his Miranda rights. According to Lyle Denniston's summary on the Supreme Court (SCOTUS) wiki, after three hours of questioning the cops asked whether Thompkins sought God's forgiveness for "shooting that boy down." Thompkins said, "Yes." That answer was introduced in court as evidence against him, and he was convicted on all counts and sentenced to life without parole.
Thompkins' new attorneys appealed on the grounds that the statement was inadmissible. They also said his counsel had been ineffective. Last November, the Sixth Circuit Court of Appeals threw out his conviction, arguing that the police interrogation should have stopped until Thompkins explicitly invoked or waived his rights.
In a 5-4 ruling, the U.S. Supreme Court declared June 1 that unless criminal suspects explicitly invoke their right to remain silent during a police interrogation, anything they say can be used against them. Writing for the majority, Associate Justice Anthony Kennedy declared:
In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Mirandarights, waives the right to remain silent by making an uncoerced statement to the police. Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police. The police, moreover, were not required to obtain a waiver of Thompkins’s right to remain silent before interrogating him.
The Court's conservative wing -- Justices Alito, Roberts, Scalia and Thomas -- voted with Kennedy.
In a sharply worded dissent endorsed by Justices Breyer, Ginzburg, and Stephens, Associate Justice Sonia Sotomayor argued that the Court's decision "turns Miranda upside-down." She further argued:
...Advising a suspect that he has a "right to remain silent" is unlikely to convey that he must speak (and must do so in some particular fashion) to ensure the right will be protected. ... By contrast, telling a suspect “he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires,” Miranda , 384 U. S., at 479, implies the need for speech to exercise that right. Davis ’ requirement that a suspect must “clearly reques[t] an attorney” to terminate questioning thus aligns with a suspect’s likely understanding of the Miranda warnings in a way today’s rule does not. The Court suggests Thompkins could have employed the "simple, unambiguous" means of saying “he wanted to remain silent” or "did not want to talk with the police." Ante , at 10. But the Miranda warnings give no hint that a suspect should use those magic words, and there is little reason to believe police -— who have ample incentives to avoid invocation -— will provide such guidance.
Conversely, the Court’s concern that police will face "difficult decisions about an accused’s unclear intent" and suffer the consequences
