S OVEREIGN A CTS OF I NJUSTICE : 1
S
UPREME
C
OURT
O
PENS THE
D
OOR TO
G
OVERNMENT
I
NFRINGEMENT OF
C
ONSTITUTIONAL
R
IGHTS
I.
I NTRODUCTION
I wish my countrymen to consider, that whatever the human law may be, neither an individual nor a nation can ever commit
the least act of injustice against the obscurest individual
without having to pay the penalty for it.
2
Van Chester Thompkins is certainly an obscure individual. Convicted of murdering a perfect stranger in response to a petty verbal threat,
3
Thompkins is a danger to the public and deserves punishment for his horrific crime. So why would the Sixth Circuit reverse
Thompkins’s conviction and grant a justifiably exiled member of society a chance at freedom on the grounds that his confession to the crime was illegally obtained?
4
1
See infra note 2.
2
H
ENRY
D
AVID
T
HOREAU
, Slavery in Massachusetts , in T
HE
H
IGHER
L
AW
: T
HOREAU ON
C
IVIL
D
ISOBEDIENCE AND
R
EFORM
122 (Princeton University Press 2004) (1854). Thoreau based this essay on a speech he gave at an anti-slavery rally in Framingham, Massachusetts on July 4, 1854.
Id. at 120.
3
See Thompkins v. Berghuis, No. 05-CV-70188-DT, 2006 WL 2811303, at *2 (E.D. Mich. Sept.
28, 2006) (indicating Thompkins was provoked by a passenger of the victim’s car yelling “What you all looking at?” to Thompkins and two co-defendants).
4
See
Thompkins v. Berghuis, 547 F.3d 572, 592 (6th Cir. 2008) (reversing the district court’s judgment against Thompkins and remanding the case with instructions to grant Thompkins a new trial or release him from state custody), rev’d
, 130 S. Ct. 2250 (2010).

The answer to this question lies in the protections afforded to Thompkins by the Supreme
Court’s 1966 decision in Miranda v. Arizona .
5 The Miranda court recognized that the immense pressure exerted on suspects during police interrogations creates an unreasonably high risk that the suspect’s Fifth Amendment privilege against self-incrimination
6
will be violated. Miranda sought to remedy this injustice by creating procedures designed to safeguard a suspect’s constitutional rights during an interrogation.
7
However, since Miranda, the Supreme Court has slowly eaten away at these safeguards to the point where Miranda’s goal of “leveling the playing field” 8
between suspects and their police interrogators is no longer consistently achieved.
9
In Berghuis v. Thompkins , the Court continued on its path of destruction by reversing the
Sixth Circuit and denying Thompkins’s claim that police had obtained his confession in violation
5
Miranda v. Arizona, 384 U.S. 436 (1966). See infra Part III for discussion of Miranda and its progeny.
6
The Fifth Amendment states that “No person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.
C
ONST
.
amend.
V. The Supreme Court first extended the privilege against self-interrogation to the context of state and local police interrogations via the Due
Process Clause of the Fourteenth Amendment in Malloy v. Hogan, 378 U.S. 1 (1964).
7
United States v. Patane, 542 U.S. 630, 639 (2004). Cf .
R
ICHARD
A.
P
OSNER
, O
VERCOMING
L
AW
248 (1995) (describing Miranda as “a decision explicitly premised on the administrative costs of assuring compliance with the Constitution’s implied prohibition of coerced confessions”).
8 Nicole A. Saharsky, for United States, as amicus curiae, supporting Petitioner, Transcript of
Oral Argument at 21, Berghuis v. Thompkins, 130 S. Ct. 2250 (2010) (No. 08-1470), WL
689577 (U.S. June 1, 2010) (suggesting the “primary protection” afforded by Miranda ).
9
See infra Part III.A.2 for discussion of significant postMiranda Supreme Court cases.
2

of Miranda .
10
This note criticizes the Thompkins decision not only for its unjustifiably broad conclusions, but more importantly for what it represents: another step in the Supreme Court’s dismantling of Miranda
’s already broken protections and the resulting impermissible exposure of suspects’ constitutional rights during police interrogations. Part II of this note reviews the background of Thompkins’s claim and explores the Supreme Court’s majority and dissenting opinions. Part III begins with a brief history of Miranda and its progeny and then examines how the Thompkins majority reached out to further limit Miranda ’s scope. Part IV predicts the impact Thompkins will have on police interrogations, and Part V concludes this note by warning that the Thompkins decision opens the door for police interrogators to violate suspects’ constitutional rights.
II. C
ASE
R
ECITATION
A. Background
1. Facts of the Case
Van Chester Thompkins was interrogated by two Southfield, Michigan police officers concerning his involvement in a parking-lot shooting during the prior year.
11
After giving Mr.
Thompkins Miranda warnings, including a reminder of his right to remain silent, the police
10
Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).
11 Id.
at 2256. Thompkins fled to Ohio after the shooting and later ran from police when they attempted to arrest him in Columbus, Ohio. Thompkins v. Berghuis, 547 F.3d 572, 576 (6th Cir.
2008), rev’d , 130 S. Ct. 2250 (2010). Thompkins then gave the police false identification after they recaptured him. Id.
3

began questioning their murder suspect.
12
During most of the three-hour interrogation,
Thompkins was almost completely silent and uncooperative except for giving a few one-word answers, nodding his head, declining a peppermint, and complaining about his chair.
13
Most importantly, Thompkins never said he wanted to remain silent or talk to an attorney.
14
Unable to generate any meaningful response from Thompkins, the interrogator made a religious appeal at the end of the interview:
Interrogator: “Do you believe in God?”
Thompkins:
“Yes.”
Interrogator: “Do you pray to God?”
Thompkins:
“Yes.”
Interrogator: “Do you pray to God to forgive you for shooting that boy down?”
Thompkins: “Yes.” 15
12
130 S. Ct. at 2256. The parties agreed that warnings were given in full compliance with
Miranda , and Thompkins did not argue on appeal that he failed to understand his rights. Id.
at
2259, 2262.
13
Id.
at 2256–57. Thompkins’s interrogator described the interview as “very one-sided . . . nearly a monologue.”
Id.
at 2267 (Sotomayor, J., dissenting).
14
Id.
at 2256.
15
Id.
at 2257. The religious nature of the interrogator’s questions is permissible under Supreme
Court precedent: “[T]he Fifth Amendment privilege is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’”
Id.
at
2263 (quoting Colorado v. Connelly, 479 U.S. 157, 170 (1986) (quoting Oregon v. Elstad, 470
U.S. 298, 305 (1985))).
4

At trial, Thompkins moved to suppress his statements because they were obtained after he invoked his right to remain silent during the interrogation by doing just that: remaining silent.
16
He also argued that his conduct and limited speech during the interrogation did not constitute a waiver of his right to remain silent.
17
The trial court denied Thompkins’s motion.
18
Due to the weight of evidence against him, including the “confession,” Thompkins was found guilty of first-degree murder and sentenced to life in prison without parole.
19
2. Procedural History
Thompkins appealed the trial court’s denial of his motion to suppress under
Miranda ,
20 but the Michigan Court of Appeals held that Thompkins never invoked his right to remain silent and waived the right during his interrogation.
21
The Michigan Supreme Court refused to review
16
130 S. Ct. at 2257.
17
Id.
18
Id.
19 Id.
at 2258. Additional evidence implicating Thompkins included a security camera photograph placing Thompkins at the location of the murder and testimony from multiple eyewitnesses identifying Thompkins as the shooter. See Thompkins v. Berghuis, 547 F.3d 572,
575 (6th Cir. 2008), rev’d
, 130 S. Ct. 2250 (2010).
20
130 S. Ct. at 2258. Miranda requires an interrogation to cease after a suspect invokes the right to remain silent and forbids an interrogation from being entered into evidence at trial unless the suspect has waived the right. See Miranda v. Arizona, 384 U.S. 436, 474–75 (1966).
21
130 S. Ct. at 2258. The appellate court also rejected Thompkins’s separate ineffectiveassistance-of-counsel claim for failure to show prejudice. Id.
5

the appellate decision.
22
Thompkins then filed a writ of habeas corpus with the United States
District Court for the Eastern District of Michigan.
23 Applying the discretionary standard of review required by 28 U.S.C. § 2254,
24
the district court determined the Michigan Court of
Appeal’s decision was a reasonable application of Federal law and denied Thompkins’s writ application.
25
However, the Sixth Circuit reversed the district court’s holding and found the state erred in rejecting Thompkins’s
Miranda claims.
26
The United States Supreme Court granted the
22 Id.
23
Id.
A writ of habeas corpus (Latin for “that you have the body”) is used to bring a person before a court to ensure that person is not being detained or imprisoned illegally. B
LACK
’
S
L
AW
D ICTIONARY 778 (9th ed. 2009).
24
See
28 U.S.C. § 2254 (2006). This is the codified version of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) and allows a federal court to grant a state prisoner’s application for writ of habeas corpus only if the state court’s findings were “contrary to, or involved an unreasonable application of . . . Federal law . . . or . . . were based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id.
See generally Williams v. Taylor, 529 U.S. 362, 410–11 (2000) (making it clear that a federal court is not permitted to apply its independent judgment to a state court’s habeas finding under the AEDPA).
25
130 S. Ct. at 2258.
26
Id.
6

State of Michigan’s petition for a writ of certiorari 27
and, in a 5-4 decision, reversed the Sixth
Circuit and effectively upheld Thompkins’s murder conviction.
28
B. The Supreme Court’s Reasoning
1.
Justice Kennedy’s Majority Opinion
The Sixth Circuit’s decision gave the Supreme Court yet another opportunity to narrowly interpret the protections afforded to suspects during police interrogations under Miranda .
29
Justice Anthony M. Kennedy, writing for a five-member majority in a decision “split along familiar ideological lines,” 30
rejected both Thompkins’s invocation and waiver claims.
31
27 Berghuis v. Thompkins, 130 S. Ct. 2250 (2010), cert. granted , 130 S. Ct. 48 (Sept. 30, 2009)
(No. 08-1470). Ms. Mary Berghuis, Warden of a Michigan correctional facility, petitioned the
Supreme Court on behalf of the State of Michigan. Petition for Writ of Certiorari at ii,
Thompkins , 130 S. Ct. 2250 (No. 08-1470).
28
Id.
at 2265. The Supreme Court’s decision in Thompkins is just one of many recent reversals of Sixth Circuit rulings on habeas claims. See Tony Mauro, Court gives 6 th Circuit the 9 th
Circuit treatment , T HE N ATIONAL L AW J OURNAL , June 2, 2010, available at http://www.law.com/jsp/nlj/legaltimes/PubArticleLT.jsp?id=1202459039355 (also discussing
Michigan Solicitor General C. Eric Restuccia’s strategy for obtaining Supreme Court review of
Thompkins’s habeas victory at the Sixth Circuit, among others).
29 See infra Part III for discussion of Miranda and its progeny.
30
Adam Liptak,
Mere Silence Doesn’t Invoke Miranda, Justices Say
, N.Y.
T IMES , June 1, 2010, at A15.
Justice Kennedy’s majority opinion was joined by Justices Antonin Scalia, Clarence
Thomas, and Samuel A. Alito, Jr. Id.
7

According to the Court, a suspect must “unambiguously”
32
invoke the right to remain silent to prevent further questioning, and the suspect’s waiver of the right is implied by making a oneworded confession to police but otherwise remaining largely silent.
33
Speaking for the Court, Justice Kennedy first determined that Thompkins failed to invoke his right to remain silent by remaining silent for most of the three-hour interrogation.
34
He reasoned that requiring the police to construe a suspect’s ambiguous act or statement, such as
Thompkins’s silence, as an invocation of the right to remain silent would pose a “significant burden on society’s interest in prosecuting criminal activity” while only “add[ing] marginally to
Miranda
’s goal of dispelling the compulsion inherent in custodial interrogation.” 35
Turning to the issue of waiver, Justice Kennedy determined that the State of Michigan met the “heavy
31
130 S. Ct. at 2264. The Court also rejected Thompkins’s ineffective-assistance-of-counsel claim. Id.
32
Id.
at 2259 (quoting Davis v. United States, 512 U.S. 452, 459 (1994) (requiring suspects must
“unambiguously invoke” their right to counsel )).
33
See 130 S. Ct. at 2263. The Court relies on the implied waiver doctrine announced in North
Carolina v. Butler, 441 U.S. 369 (1979) (implied waiver of the right to silence is based on “a defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver.”).
34
130 S. Ct. at 2259.
35
Id.
at 2260.
8

burden” 36
required to prove Thompkins waived his right to remain silent.
37
Relying on the implied waiver doctrine announced in North Carolina v. Butler , 38 he found Thompkins’s understanding of his Miranda rights, coupled with his three words at the end of the interrogation, were together sufficient to imply a voluntary waiver of his right to silence.
39
Justice Kennedy further justified his finding of implied waiver by asserting that Miranda
’s “main protection lies in advising defendants of their rights.”
40
Therefore, the protection afforded by Miranda is limited with respect to waiver of a suspect’s right to silence.
41
36
Id. at 2261 (“a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination . . . .” (quoting
Miranda v. Arizona, 384 U.S. 436, 475 (1966))).
37 130 S. Ct. at 2261.
38
See supra note 33. The Court also determined Thompkins voluntarily waived his right to remain silent and understood both the nature of the right and the consequences of waiving it, as required under Moran v. Burbine, 475 U.S. 412 (1986).
39
130 S. Ct. at 2262.
40 Id.
(emphasis added) (citing Davis v. United States, 512 U.S. 452, 460 (1994), and Moran , 475
U.S. at 427).
41
But see Miranda , 384 U.S. at 436 (“the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.”) (emphasis added).
9

2. Justice Sotomayor’s Dissenting Opinion
Justice Sotomayor, speaking for the dissenting Justices, 42 criticized the majority’s positions on the invocation and waiver of the right to remain silent as “mark[ing] a substantial retreat from the protection against compelled self-incrimination that Miranda . . . has long provided.” 43
Additionally, Justice Sotomayor’s lengthy dissent faulted the majority for going further than it needed to rule on the state’s disposition of Thompkins’s
Miranda claims.
44
Justice Sotomayor first attacked the majority’s finding that the state met its burden of establishing Thompkins’s waiver of his right to silence.
45
In particular, she recognized the majority’s conclusion, that Thompkins’s brief inculpatory statements constituted an implied waiver of his right to silence, is fundamentally at odds with Miranda
’s edict that a waiver may not be presumed “simply from the fact that a confession was in fact eventually obtained.” 46
42
Justice Sotomayor’s dissent was joined by Justices John Paul Stevens, Ruth Bader Ginsberg, and Stephen G. Breyer. 130 S. Ct. at 2266. Justice Stevens has since retired from the Supreme
Court. See generally Associated Press, A bowtie goodbye for Justice John Paul Stevens , W ASH .
P
OST
, June 28, 2010, available at http://www.washingtonpost.com/wpdyn/content/article/2010/06/28/AR2010062802820.html.
43
130 S. Ct. at 2266. (Sotomayor, J., dissenting). This opinion was Justice Sotomayor’s first
“major” dissent as a member of the Supreme Court. See Liptak, supra note 30.
44
See infra Part III.B.3 for discussion of the Court going beyond AEDPA’s deferential standard.
45
Id.
at 2268.
46
Id.
at 2270.
10

Affording appropriate discretion under 28 U.S.C. § 2254, 47
Justice Sotomayor concluded the state’s determination of Thompkins’s failure to invoke his right to silence was a reasonable finding given the ambiguity of Federal law the state was relying on.
48
However, she rejected the majority’s announcement of a broad rule requiring suspects to unambiguously invoke their right to remain silent as “turn[ing]
Miranda upside down”
49
by ironically requiring a suspect to speak in order to successfully invoke the right.
50
Justice Sotomayor urged the court to instead adopt a fact-specific standard that would permit courts to determine if police had “scrupulously honored” a suspect’s ambiguous invocation of the right to silence.
51
III. P OST -M IRANDA , T HOMPKINS IS M ORE OF THE S AME
A. What Miranda Gives to Suspects, the Supreme Court Takes Away
52
1.
Trying to Solve the Problem of Coercive Interrogations
Prior to Miranda , courts considered the “totality of the circumstances” surrounding an interrogation to determine if police had overcome a suspect’s will.
53
Only the suspect’s voluntary statements could be entered into evidence at trial; coerced statements were excluded.
54
47
See supra note 24 (discussing AEDPA’s deferential standard of review).
48
130 S. Ct. at 2274.
49
Id.
at 2277.
50
Id.
51 Id.
at 2275–76 (quoting Michigan v. Mosley, 423 U.S. 96, 104 (1975), and proposing an extension of Mosley
’s finding that an interrogation complies with
Miranda as long as the suspect’s rights are “scrupulously honored” based on the facts of the case).
52
See Job 1:21 (“The Lord gave and the Lord has taken away”).
11

In 1966, the Miranda court noticed that retroactive judicial application of the “totality of the circumstances” test failed to prevent police interrogators from violating suspects’ constitutional right against self-incrimination.
55
Chief Justice Earl Warren, writing for the Court, held that “inherently compelling pressures” exerted on suspects during any interrogation required the police to “adequately and effectively” inform suspects of their rights and “fully honor” the suspects’ exercise of those rights.
56
Accordingly, he established the specific and now famous
57
53
See Marcy Strauss, The Sounds of Silence: Reconsidering the Invocation of the Right to
Remain Silent Under Miranda , 17 W M & M ARY B ILL R TS .
J. 773, 776 (2009). This ad-hoc approach to judicial examination of police interrogations was grounded in the Due Process
Clause of the Fourteenth Amendment . Id.
See, e.g.
, Stein v. New York, 346 U.S. 156, 185
(1953) (whether a suspect’s resolve was conquered “depend[s] upon a weighting of the circumstances of pressure against the power of resistance of the [suspect]”).
54
See generally Dickerson v. United States, 530 U.S. 428 (2000) (“The roots of this test developed in the common law, as the courts of England and then the United States recognized that coerced confessions are inherently untrustworthy.”).
55
See Strauss, supra note 53.
56
Miranda v. Arizona, 384 U.S. 436, 467 (1966).
57
See Dickerson
, 530 U.S. at 443 (“
Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture” (citing Mitchell v. United
States, 526 U.S. 314, 331–32 (1999))). See also L
UCAS
A.
P
OWE
, J
R
., T
HE
W
ARREN
C
OURT AND
A MERICAN P OLITICS 400 (2000) (“No Court decision so quickly moved into popular consciousness . . . Warren’s goal of equalizing knowledge was more successful than he could have dreamed.”).
12

Miranda rules
58
as minimum standards police must follow if a state wants to admit a suspect’s interrogation statements, including any confessions, as evidence during trial.
59
2.
Easing the Burden on Police, Increasing the Burden on Suspects
The landmark Miranda decision initially seemed to require police officers to strictly adhere to its procedures,
60
but subsequent Supreme Court decisions effectively narrowed the scope of protection afforded to interrogated suspects by creating “exceptions” to the Miranda rules.
61 Less than a decade after Miranda , the Court allowed evidence stemming from a
58
Miranda requires police to make the following disclosures to a suspect before commencing an interrogation: they have the right to remain silent, anything they say can and will be used against them in court, and they have the right to speak with their attorney or have one appointed.
Whenever suspects invoke either their right to silence or right to an attorney, an interrogation must immediately cease. Additionally, suspects must voluntarily, knowingly and intelligently waive their rights before any interrogation evidence is admitted at trial. 384 U.S. at 444–45.
59
Id.
at 467 (Asserting that the Miranda rules are “not a constitutional straightjacket” and inviting Congress and the States to generate better alternatives for protecting suspects’ Fifth
Amendment privilege against self-incrimination).
60
See P
OWE
, J
R
., supra note 57 at 399 (quoting mayor of Los Angeles, California characterizing
Miranda as “another set of handcuffs on the police” shortly after the decision was announced).
61
See Seth Goldberg, Comment, Missouri v. Seibert : The Multifactor Test Should Be Replaced with a Bright-Line Warning Rule to Strengthen Miranda ’s Clarity , 79 S
T
.
J
OHN
’
S
L.
R
EV
. 1287,
1300–01 (2005) (“the Miranda decision was substantially undercut by gaping exceptions” (citing
Benjamin D. Cunningham, Comment, A Deep Breach Before the Plunge: Undoing Miranda ’s
Failure Before It’s Too Late
, 55 M ERCER L.
R EV . 1375, 1379 (2004))).
13

voluntary confession obtained without a Miranda warning to be admitted at trial because the interrogation did not violate the defendant’s constitutional rights.
62 Ten years later, the Court allowed police to disregard Miranda
’s warning requirements when questioning a suspect was necessary to protect the public.
63
The next year, the Court refused to suppress a suspect’s confession obtained in compliance with Miranda simply because the suspect made other admissions before police administered the Miranda warnings.
64
When combined, these postMiranda decisions support the conclusion that Miranda created “prophylactic” 65
safeguards to protect against potential violations of a suspect’s Fifth
Amendment right against self-incrimination.
66
Because Miranda
’s protections “sweep more
62 Michigan v. Tucker, 417 U.S. 433, 444 (1974) (holding that police’s failure to adhere to
Miranda
’s rules did not deprive suspect of his privilege against compulsory self-incrimination).
63
New York v. Quarles, 467 U.S. 649 (1984). The Court justified the “public safety” exception to Miranda
’s required warnings by arguing that immediate public safety concerns override the interest in protecting the suspect. Id.
at 651. The Obama administration has fostered recent public debate by announcing its desire to expand the public safety exception through federal legislation in order to combat terrorism. See generally Anne E. Komblut, Obama administration looks into modifying Miranda law in the age of terrorism , W
ASH
.
P
OST
, May 10, 2010, at A4.
64
Oregon v. Elstad, 470 U.S. 298 (1985). But see Missouri v. Seibert, 542 U.S. 600 (2004)
(plurality opinion) (refusing to allow police to engage in a “question first” strategy by eliciting a suspect’s confession, providing Miranda warnings, then obtaining a repeated confession).
65
Quarles , 467 U.S. at 653.
66
See Michael D. Hatcher, Note, Printz Policy: Federalism Undermines Miranda, 88 G
EO
.
L.J.
177, 184 (1999).
14

broadly than the Fifth Amendment itself,” 67
they are not constitutional requirements themselves.
68 However, the Supreme Court rejected this argument in Dickerson v. United States to prevent Congress’ attempt at overruling
Miranda
69
and instead asserted that Miranda was a
“constitutional rule” that could not be superseded by legislative action.
70
Although the Supreme Court declined to use Dickerson as an opportunity to overrule
Miranda completely,
71
recent Supreme Court decisions have continued to erode the protections given to suspects under Miranda .
72 The Court’s ruling in Thompkins is yet another attempt to
67
Elstad , 470 U.S. at 306.
68 See Hatcher, supra note 66.
69
Dickerson v. United States, 530 U.S. 428 (2000) (Overruling 18 U.S.C. § 3501, which allowed federal suspects’ interrogation statements to be admitted into evidence if they were “voluntarily made”). But see id.
at 444 (Scalia, J., dissenting) for harsh criticism of the majority’s decision.
70
Id.
at 444. See also E
RWIN
C
HEMERINSKY
, C
ONSTITUTIONAL
L
AW
: P
RINCIPLES AND
P
OLICIES
180 (3rd ed. 2006) (“ Dickerson does not resolve the question which has long been unresolved as to Congress’s ability to limit remedies. But it does make clear that remedies that are deemed to themselves be constitutional rules cannot be modified by Congress.”).
71
Dickerson , 520 U.S. at 443.
72
See, e.g.
, Carl A. Benoit, Confessions and the Constitution: The Remedy for Violating
Constitutional Safeguards , FBI L
AW
E
NFORCEMENT
B
ULLETIN
, April 2010, available at http://www.fbi.gov/publications/leb/2010/april2010/confessions_feature.htm (discussing United
States v. Patane, 542 U.S. 630 (2004) (refusing to suppress physical evidence obtained as a result of suspect’s voluntary statements obtained prior to
Miranda warnings)). See also Maryland v.
15

“reduce the impact of the
Miranda rule on legitimate law enforcement while reaffirming
[ Miranda ’s] core ruling that unwarned statements may not be used as evidence.” 73
B. Thompkins Extends the Demise of Miranda’s Protections
1. The Court intentionally extended precedent to require suspects to unambiguously invoke their right to remain silent.
The tenuous arguments Justice Kennedy made in support of the Court’s findings illustrates the majority’s willingness to bend over backward to continue limiting Miranda ’s reach outside of providing warnings.
74
Justice Kennedy first announced that a suspect must unambiguously invoke his right to remain silent by extending the same unambiguous invocation standard the Court previously announced for invoking the right to counsel,
75
but he justified his analogy by completely ignoring the differences between the two rights.
76
Instead, he simply
Shatzer, 130 S. Ct. 1213 (2010) (requiring suspects who have been released from custody to reinvoke their right to counsel if re-interrogated after 14 days).
73 Berghuis v. Thompkins, 130 S. Ct. 2250 (2010) (quoting Dickerson , 520 U.S. at 443–44).
74
Cf .
Editorial, Speaking Up to Stay Silent , N.Y.
T IMES , June 2, 2010, at A24 (describing opinion as “following the Roberts court’s disturbing pattern of stealthily overturning precedents”).
75
130 S. Ct. at 2260. See supra note 32 and accompanying text.
76
See id.
at 2275 (Sotomayor, J., dissenting) (explaining that, under Michigan v. Mosley, 423
U.S. 96, 104 (1975), police may re-approach suspects who have previously invoked their right to silence, but police may not re-approach suspects who have invoked their right to counsel until an attorney is provided, per Edwards v. Arizona, 451 U.S. 477, 485 (1981)). Justice Sotomayor also pointed out that, unlike Thompkins, the Davis suspect made an ambiguous invocation of his right
16

asserted that there is “no principled reason” to treat the rights differently because they both protect a suspect’s privilege against self-incrimination.
77
To support further the Court’s counterintuitive notion that a suspect must now “speak up to remain silent,” 78
Justice Kennedy referenced the Court’s previous decision in Moran v.
Burbine to argue that the costs imposed on law enforcement would grossly outweigh any benefit a suspect could derive from being allowed to ambiguously invoke his right to silence.
79
In
Moran, the Court refused to require police to notify a suspect in police custody that his attorney was trying to contact him.
80
However, Justice Kennedy failed to explain why requiring police to respect a suspect’s ambiguous invocation of his right to remain silent creates the same undue burden as requiring police to make additional disclosures to a suspect beyond the Miranda warnings. He also cunningly quoted Moran out of context: “as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process.”
81
Justice O’Connor made this statement in Moran when refusing to require an additional Miranda warning; whereas to counsel only after he had expressly waived his Miranda rights. 130 S. Ct. at 2275 (citing
Davis v. United States, 512 U.S. 452, 461 (1994)).
77
130 S. Ct. at 2260. For “principled reasons” for treating invocation of the right to silence differently than invocation of the right to counsel, see Strauss, supra note 53 at 816–19.
78 See supra note 74.
79
130 S. Ct. at 2260 (citing Moran v. Burbine, 475 U.S. 412, 425, 427 (1986)).
80
475 U.S. at 425.
81
130 S. Ct. at 2260 (quoting 475 U.S. at 427).
17

Thompkins concerns the type of invocation a suspect must make.
82
Furthermore, Justice
Kennedy declined even to mention the dissent’s suggestion, to require police to clarify a suspect’s ambiguous invocation, as an inexpensive alternative to the majority’s unambiguous invocation rule.
83
The lack of support for Justice Kennedy’s cost-benefit analysis reveals it to be an entirely one-sided endeavor favoring the police at the expense of the suspect.
84
2. The Court intentionally extended precedent to find Thompkins had waived his right to remain silent.
The Court found Thompkins had implicitly waived his right to silence by showing he understood his rights and then engaged in a “course of conduct indicating waiver” by replying to the interrogator’s last question about shooting the victim.
85
Once Justice Kennedy recognized the state could meet its “heavy burden” of proving waiver by only a preponderance of the evidence, 86 all that was needed to tip the scales against Thompkins were “three one-word
82
See supra note 80; 130 S. Ct. at 2260.
83
See id.
at 2276–77 (Sotomayor, J., dissenting) (citing Davis v. United States, 512 U.S. 452,
461 (1994) (Souter, J., concurring), for idea of requiring police to clarify ambiguous invocations as a way to “scrupulously honor” suspects’
Miranda rights).
84
Cf. Strauss, supra note 53 at 809–16 (criticizing Davis , 512 U.S. 452, for making a similar one-sided cost calculus in order to require unambiguous invocation of the right to counsel).
85
130 S. Ct. at 2263 (citing North Carolina v. Butler, 441 U.S. 369 (1979)).
86 For a general critique of equating the state’s “heavy burden” to a preponderance of the evidence standard in the first place, see Colorado v. Connelly, 479 U.S. 157, 184–87 (1986)
(Brennan, J., dissenting) (arguing that the Court erroneously relied on Lego v. Twomey, 404
U.S. 477 (1972), which involved a situation in which the suspect was not in custody).
18

answers, following 2 hours and 45 minutes of silence punctuated by a few largely nonverbal responses to unidentified questions.” 87 In addition to contradicting directly the language of
Miranda ,
88
Justice Kennedy’s finding of implied waiver relied on fewer affirmative acts by
Thompkins than occurred in Butler or any lower court case involving implied waiver.
89
By ruling against Thompkins’s waiver claim, Justice Kennedy once again chose to side with law enforcement by creating a nationwide precedent illustrating the ease at which suspects will be found to have waived their right to silence.
90
3.
The Court’s lack of deference reveals its desire to slowly chip away at Miranda .
To rule on a state prisoner’s application for a writ of habeas corpus, a Federal court only needs to determine whether or not a state reasonably applied Federal law and made a reasonable determination of the case’s facts.
91
However, Justice Kennedy instead chose to engage in a de novo review of the state’s denial of Thompkins’s Miranda claims because it encompasses the
87
130 S. Ct. at 2271 (Sotomayor, J., dissenting) (refusing to agree that state met its burden).
88 See supra note 36.
89
Id.
(explaining that, unlike the Butler suspect, Thompkins did not tell police “I will not talk to you.”). See also id.
at n.4 (citing cases from lower courts requiring additional affirmative conduct by suspect to find implied waiver of right to silence).
90
See Nina Totenberg, High Court: Speak Up if You Want to Remain Silent , N
ATIONAL
P
UBLIC
R
ADIO
, June 1, 2010, http://www.npr.org/templates/story/story.php?storyId=127352150
(“
Miranda put the burden on law enforcement . . . [but after Thompkins ] . . . the burden is now the other way . . . .” (quoting Stanford Law professor Robert Weisberg)).
91
See supra note 24 (discussing AEDPA’s deferential standard of review).
19

more deferential standard the Court is supposed to apply.
92
Justice Kennedy’s judicial sleight of hand permitted him to announce broad invocation and waiver rules 93 instead of simply ruling that
Michigan’s rejection of Thompkins’s habeas claim was reasonable, and Justice Sotomayor rightly attacked Justice Kennedy for his lack of judicial restraint.
94
Moreover, his reference to
Knowles is a yet another flawed appeal to Court precedent because Knowles held that “even if
[the defendant’s] claim was eligible for de novo review, it would still fail,” 95
only after the Court found the state court’s decision to be reasonable.
96 Justice Kennedy’s intentional, though haphazard, extension of precedent and the Court’s lack of deference to the state’s findings together indicate the majority’s underlying desire to strip away
Miranda
’s protections until only the warnings are left.
97
92
130 S. Ct. at 2264 (“The state court’s decision rejecting Thompkins’s Miranda claim was thus correct under de novo review and therefore necessarily reasonable under the more deferential
AEDPA standard of review” (citing Knowles v. Mirzayance, 129 S. Ct. 1411 (2009))).
93
See supra notes 32–33 and accompanying text.
94
130 S. Ct. at 2271 (Sotomayor, J., dissenting) (“It is a fundamental rule of judicial restraint . . . that this Court will not reach constitutional questions in advance of the necessity of deciding them” (quoting Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng’g, P.C., 467
U.S. 138, 157 (1984))).
95
Knowles , 129 S. Ct. at 1420.
96
Id.
at 1419.
97
See supra notes 40 and 73 and accompanying text.
20

IV. M
IRANDA
R
ENDERED
M
EANINGLESS
A. Thompkins’s Effect on the Miranda Warnings
Viewing the Thompkins decision by itself, it appears reasonable for Justice Kennedy to do all he can to narrow the scope of Miranda
’s protections in order to assist police interrogators attempting to solve a crime.
98
Yet, when combined with other postMiranda rulings,
99
Thompkins advances a dangerous trend which Justice Sotomayor failed to address in her dissent.
100 The Court is persistently eating away at a suspect’s Miranda rights until only the warnings survive, but the warnings by themselves will fail to accomplish Miranda
’s goal of combating the inherent coercion of police interrogations.
101
The current Miranda warnings are criticized as ineffective for many reasons: they are difficult to understand,
102
and they do not tell suspects the interrogation ends when they invoke
98
See Totenberg, supra note 90 (“[ Thompkins ] gives police greater flexibility in questioning . . .
[and] makes the [interrogation] process simpler and less likely to provoke legal problems once the case gets to court” (quoting former Newark, New Jersey Police Captain John Shane)).
99 See supra Part III.A.2 for discussion of significant postMiranda Supreme Court cases.
100
130 S. Ct. at 2273. Although Justice Sotomayor recognizes that the majority’s decision
“ignores important interests
Miranda safeguards”
Id.
, and “bodes poorly for the fundamental principles that Miranda protects”
Id.
, she effectively placed the decision in a vacuum instead of properly analyzing it within the context of other Supreme Court interrogation cases that have already undermined Miranda.
101
See supra notes 40 and 73 and accompanying text.
102
See George C. Thomas III, Miranda ’s Illusion: Telling Stories in the Police Interrogation
Room , 81 T EX .
L.
R EV .
1091, 1093 (2003) (reviewing W ELSH S.
W HITE , M IRANDA
’
S W ANING
21

their rights,
103
or that their choice to remain silent cannot be used against them in court.
104
The
Court’s decision in Thompkins further adds to the inadequacy of Miranda warnings. For example, although Thompkins requires suspects to invoke their right to silence unambiguously, the Court did not amend the Miranda warnings to tell suspects that an ambiguous invocation of their rights is not enough.
105
The lack of a warning regarding ambiguous invocations is particularly troubling because inexperienced suspects are more likely to make ambiguous invocations of their right to silence than habitual criminals familiar with the interrogation process.
106
Given the high number of crimes committed by repeat offenders,
107
the Court’s
P
ROTECTIONS
(2001)) (“‘anything you say can and will be used against you in a court of law’ sounds a lot like the warning on cigarette packages . . . and, more importantly, signals a distant event that may not ever occur”).
103
See Strauss, supra note 53 at 823 (suggesting language be added to Miranda
’s warnings).
104
Mark A. Godsey, Reformulating the Miranda Warnings in Light of Contemporary Law and
Understandings , 90 M
INN
.
L.
R
EV
. 781, 802 (2006) (criticizing Miranda warnings for only partially informing suspects of the legal consequences of their choice to speak or remain silent).
105
Justice Kennedy’s observation that Thompkins could have stopped the interrogation by stating that he wanted to remain silent or that he did not want to talk, 130 S. Ct. at 2260, is especially perverse in light of the Court’s failure to amend the
Miranda warnings.
106
See Strauss, supra note 53 at 806 (“studies demonstrate that the people who are most likely to clearly assert their rights are ‘hardened’ criminals who may be less intimidated and more accustomed to the custodial interrogation setting” (citing Steven B. Duke,
Does Miranda Protect the Innocent or the Guilty?
, 10 C
HAP
.
L.
R
EV
. 551, 558 n.30 (2007), and Richard A. Leo, Inside the Interrogation Room , 86 J.
C RIM .
L.
& C RIMINOLOGY 266, 286 (1996))).
22

failure to amend the Miranda warnings leads to a perverse outcome: innocent suspects will be less likely to invoke their right to silence properly, while guilty suspects will be more likely to succeed.
108
If Thompkins makes already flawed Miranda warnings even more defective in communicating essential information to a suspect, the only thing left to defend suspects are the invocation and waiver standards police officers must adhere to under Miranda .
109
B. Exposing Suspects’ Constitutional Rights
Of course, allowing police to determine the effectiveness of suspects’ invocation and waiver of their Miranda rights is equivalent to letting the fox guard the hen house.
110
Not surprisingly, police departments have developed interrogation techniques designed to allow police to circumvent the Miranda procedures altogether or at least convince suspects to waive their rights.
111
Moreover, widely-used interrogation training resources reflect law enforcement’s intent to promote the same intimidating atmosphere Miranda attempted to defuse.
112
107
See David M. Kennedy, Pulling Levers: Chronic Offenders, High-Crime Settings, and a
Theory of Prevention , 31 V
AL
.
U.
L.
R
EV
. 449, 453–54 (discussing studies indicating relatively high concentration of crimes committed by small number of felons) (citing M
ARK
M
OORE ET AL
.,
D ANGEROUS O FFENDERS : T HE E LUSIVE T ARGET OF J USTICE 37 (1984), and L AWRENCE W.
S
HERMAN
, Attacking Crime: Police and Crime Patrol , in M
ODERN
P
OLICING
159, 178 (Michael
Tonry & Norval Morrise eds., 1992).
108
See Strauss, supra note 103.
109 See supra note 58 for description of invocation and waiver standards under Miranda .
110
See Thomas III, supra note 102.
111
See Goldberg, supra note 61 at 1303–04. Cf. Godsey, supra note 101 at 792 (noting that roughly eighty percent of suspects waive their Miranda rights and talk to the police).
23

While some training resources counsel police to exercise greater caution than is required under Miranda , 113 the Supreme Court nevertheless determines the minimum standards which police must adhere to if a suspect’s interrogation is to be admitted at trial. Thompkins effectively lowers those standards by allowing police to ignore suspects’ ambiguous invocations and making it easier for police to extract implied waiver of suspects’ right to silence.
114
Suspects will not find comfort in Thompkins
’s lowering of the bar from which actual interrogation methods are derived.
115 Although Miranda ’s rules cannot be found in the Constitution itself, 116 the Miranda
112
See
Brief for the National Ass’n of Criminal Defense Lawyers & the ACLU as Amici Curiae in Support of Respondents at 16–17, Berghuis v. Thompkins, 130 S. Ct. 2250 (2010) (No. 08-
1470) (citing F.
I NBAU ET AL ., C RIMINAL I NTERROGATION & C ONFESSIONS 7–8 (4th ed. 2004), to show that police are trained to “dominate” the interrogation).
113
See, e.g.
, 130 S. Ct. at 2270 n.3 (Sotomayor, J., dissenting) (citing I NBAU , supra note 112 at
491, for example of training resource instructing police to obtain a waiver from a suspect before starting an interrogation).
114
See supra notes 32–33 and accompanying text.
115
Suspects also won’t take solace in President Obama’s nomination, and probable Senate confirmation, of current Solicitor General Elena Kagan to the Supreme Court. See generally ,
Sheryl Gay Stolberg, Confirmation Is Likely, but Not G.O.P. Support , N.Y.
T
IMES
, July 2, 2010, at A16.
Ms. Kagan filed an amicus brief in Thompkins on behalf of the United States in support of the State of Michigan’s position.
See Brief for the United States as Amicus Curiae Supporting
Petitioner, Berghuis v. Thompkins, 130 S. Ct. 2250 (2010) (No. 08-1470).
116
See U.S.
C ONST . amend. V.
24

court fulfilled its duty to safeguard the Constitution
117
by creating preventative measures designed to protect an interrogated suspect’s privilege against compelled self-incrimination.
118
The Thompkins majority’s decision to further erode suspects’ ability to invoke or avoid waiver of their Miranda rights means already inferior Miranda warnings do not stand a chance in preventing police interrogators from infringing on suspects’ constitutional rights.
V. C
ONCLUSION
A government which deliberately enacts injustice, and persists in it, will at length even become the laughing-stock of the world.
119
The Miranda court acknowledged that providing notice to suspects of their rights at the beginning of an interrogation will inadequately protect suspects’ constitutional rights unless their exercise of those rights is also “fully honored.”
120
Thompkins makes it so easy for police interrogators to claim they “fully honor” suspects’ rights that it renders Miranda
’s safeguards
117
“No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution.” Downes v. Bidwell, 182 U.S. 244, 382 (1901) (Harlan, J., dissenting).
118
See Yale Kamisar,
Can (Did) Congress “Overrule”
Miranda ?
, 85 C ORNELL L.
R EV . 883,
946–47 (comparing Miranda’s prophylactic measures to those created by the Supreme Court in
Jackson v. Denno, 378 U.S. 368 (1964), to guard against potential due process violations).
119
See T
HOREAU
, supra note 2.
120 See supra note 56 and accompanying text. See also Miranda v. Arizona, 384 U.S. 436, 467
(1966) (encouraging “Congress and the States to create procedures which are at least as effective in apprising accused persons of their right to silence and in assuring a continuous opportunity to exercise it”) (emphasis added).
25

meaningless.
121
While the Thompkins majority believes maintaining the “core” Miranda warnings is enough to defuse the inherent coercion of police interrogations, 122 they fail to realize the core will quickly become rotten without any layer of protection.
The Court’s rejection of Thompkins’s claims appears perfectly acceptable given the overwhelming evidence against him,
123
but the Fifth Amendment privilege against selfincrimination provides shelter for the wrongly accused as well as the guilty.
124
By advancing the relaxation of Miranda ’s safeguards, Thompkins invites law enforcement to disregard any suspect’s privilege for the sake of obtaining evidence of a crime. Allowing the government to engage persistently in such deliberate acts of injustice against its own citizens will ultimately bring a heavy penalty; the very “existence of the government will be imperiled if it fails to observe the law scrupulously.” 125
121
See Totenberg, supra note 90 (“[After Thompkins ,] Miranda just doesn’t mean much”
(quoting conservative Harvard Law Professor William Stuntz)).
122
See supra notes 40 and 73 and accompanying text.
123
See supra note 19 and accompanying text.
124 130 S. Ct. at 2273 (Sotomayor, J., dissenting) (quoting Withrow v. Williams, 507 U.S. 680,
692 (1983)).
125
Miranda , 384 U.S. at 480 (quoting Olmstead v. United States, 277 U.S. 438, 485 (1928)
(Brandeis, J., dissenting)).
26