Invoking Right to Silence: Must Be Unambiguous

by Charles Gillingham

A Great New Case for Law Enforcement on Miranda

The United States Supreme Court this week clarified when a suspect invokes Miranda. Quite simply, it is an excellent decision that removes ambiguity and makes it easier for you, the investigator, to know when a suspect has invoked his right to remain silent.

The USSC held, in Berghuls v. Thompkins, 2010 DJDAR 8047, that a suspect's right to silence must be invoked "unambiguously." The Court brought into line the invocation of the right to an attorney and the right to remain silent. In this decision, the Court eliminated any concern about the legality of implied waivers. If a suspect wants to remain silent, that suspect has to tell you that she wants to remain silent. Consequently, if the suspect makes a voluntary statement without unambiguously invoking the right to remain silent or to an attorney, that statement is admissible.

Miranda Warnings

Van Chester Thompkins shot a victim to death and another victim who recovered from his injuries in Michigan. Approximately a year after the shooting Thompkins was arrested in Ohio. Detectives went to Ohio to interrogate him. The questioning took about three hours. The detectives presented Thompkins with a Miranda form and had him read the final paragraph stating that he had the right to remain silent and the right to talk with a lawyer while he was being questioned. They had Thompkins read the form to insure he spoke and could read English. Thompkins declined to sign the form.


The officers began an interrogation. At no time did Thompkins say he wanted to remain silent, that he did not wish to speak, or that he wanted a lawyer. Significantly, Thompkins was mostly silent during the three hour interrogation. He would occasionally say, "yeah," "no," or nod his head. At around two hours and forty five minutes into the interrogation the officer asked him whether he "believed in God, and whether he prayed to God for shooting that boy down." Thompkins said "yes." Thompkins refused to sign a written confession and the interview ended fifteen minutes later.


At trial, Thompkins argued that he had invoked his right to remain silent and that the statement was involuntary. Thompkins argued that because he did not say anything for a sufficient period, that constituted an invocation of his right to remain silent.



The Court looked to the rule stated in Davis v. United States, 512 U.S. 452, which held that an accused must "unambiguously" invoke his/her right to an attorney. If an accused makes a statement that is ambiguous or equivocal or says nothing, officers are not required to end the interrogation or even clarify the suspect's desires.

The Court found that there was no good reason for the Davis rule not to apply to the invocation of the right to remain silent. The Court held that because Thompkins did not say he wished to remain silent or did not wish to speak to the officers, he had not invoked the right to remain silent.


The Court went on to determine whether the statement that Thompkins did make was voluntary. The Court decided that an express waiver is not required for a statement to be voluntary. The Court found that an "implicit waiver" is sufficient to admit a statement into evidence.

The Court set forth a two prong test:

One, the prosecution has to show that a Miranda warning was given and the accused gave a voluntary statement. But the Court made clear that is not enough to lead to admissibility.

Two, the prosecution must also show that the accused understood the rights.

When these two things are shown, an implied waiver is legally sufficient to allow a suspect's statement into evidence.

Thompkins read the warnings, he could understand English, he answered the question about God, all indicated that Thompkins knowingly and voluntarily waived his right to remain silent.

The Court explicitly held that the after giving a Miranda rights, police may interrogate a suspect who has neither invoked nor waived his Miranda rights.

In sum, a great case for investigators.

Chuck Gillingham is a veteran prosecutor. He is also an instructor for the California District Attorneys' Association and for Santa Clara University School of Law.