HOW DOES A PERSON INVOKE THEIR 5TH AMENDMENT RIGHT TO REMAIN SILENT?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
Berghuis v. Thompkins, 560 U.S. 370 (2010).
This case answers the following question:
How does a person invoke their 5th amendment right to remain silent?
The Court decided in this case that simply remaining silent is ineffective to invoke the Fifth Amendment right, so far as it pertains to cutting off questioning. Id. at 2259. Instead, like the Fifth Amendment’s right to counsel, the right to remain silent must be invoked unambiguously. Id. at 2260. Further, these rights can be waived by simply making a statement after there is a sufficient showing the defendant understood his or her rights. Id. at 2262-63.
In this case, an imprisoned man, Thompkins, sought a writ of habeas corpus against the warden of a Michigan correctional facility. Id. at 2256. Thompkins had been convicted using a confession given after approximately three hours of police interrogation. Id. at 2256-57. Specifically, Thompkins had been given a written copy of the Miranda warnings, but refused to sign the form. Id. at 2257. Thompkins did not invoke any of the rights listed, but instead sat almost entirely silent as police questioned him. Id. at 2256-57. Near the end of the interrogation, an officer asked Thompkins, “Do you pray to God to forgive you for shooting that boy down?” Id. at 2257. Thompkins then replied, “Yes.” Id. Thompkins refused to sign a confession, but this interaction was admitted at trial and used to convict Thompkins. Id.
The Court begins by looking at Davis v. United States, 512 U.S. 452 (1994), which held that the Fifth Amendment right to counsel must be invoked unambiguously. Id. at 2259. The Court could find “no principled reasons to adopt different standards for determining when an accused has invoked” different Miranda rights. Id. at 2260. Instead, “there is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously.” Id. For example, unambiguous invoking of the right makes it clear to the police that the right has been invoked. Id. Thus, an individual must make a “simple, unambiguous statement” to properly invoke the right and cut-off police interrogation. Id.
The next consideration was when an individual has waived the right to remain silent. Id. The Court reviews its prior decisions on the subject, and notes that older cases seems to placed too much weight on establishing waiver when “the burden to establish waiver [is] by a preponderance of the evidence.” Id. at 2261. Instead, “an ‘implicit waiver’ of the ‘right to remain silent’ is sufficient to admit the suspect’s statement into evidence.” Id. This implicit waiver can be in the form of silence and the accused’s understanding of her rights. Id.
The Court also addressed Thompkins’ challenge that he had received ineffective assistance of counsel. Id. at 2264. However, the Court found little merit in this challenge. Id. at 2265. Essentially, the claim offered little in terms of prejudicial value, as it was clear that prejudice did not exist because of the confession that was properly admitted. Id.