Michael L. Vander Giessen, Comment, Berghuis v. Thompkins: The Continued Erosion of Miranda’s Protections, 46 Gonz. L. Rev. 189 (2011).
In the forty-four years since the Supreme Court of the United States decided Miranda v. Arizona, the “procedural safeguards” set forth in that case have become ingrained in American law enforcement practices. However, subsequent Supreme Court decisions interpreting and applying Miranda have weakened its impact, causing some to question its significance and efficacy as a tool protecting suspects’ privilege against self-incrimination. The Court’s most recent Miranda decision, Berghuis v. Thompkins, continues this emasculating trend, first, by expressly heightening the standard necessary for suspects to invoke the right to remain silent and, second, by implicitly lowering the standard necessary to establish waiver. This comment will focus on how the Court reached its decision, what the Court ought to have decided, what negative impacts Berghuis may have on the American criminal justice system, and how those negative impacts may be limited.
In Berghuis, a murder suspect named Van Chester Thompkins was arrested, given full warning of his Miranda rights, and questioned by police for approximately two hours and forty-five minutes before finally making an incriminating statement. Thompkins remained largely silent and uncommunicative through an interrogation described as “nearly a monologue.” During this mostly one-sided interview, Thompkins sporadically gave “a few limited verbal responses, . . . such as ‘yeah,’ ‘no,’ or ‘I don’t know.’” The suspect’s other exchanges with police amounted to head-nods, a statement declining the offer of a peppermint, and a statement indicating that his seat was uncomfortably hard. After nearly three hours, tears appeared in Thompkins’s eyes and he answered “Yes” in response to the question: “Do you pray to God to forgive you for shooting that boy down?” %CODE2%
Thompkins was convicted of murder in 2002 at the Circuit Court of Oakland County, Michigan. During trial, Thompkins moved unsuccessfully to suppress his inculpatory answer. To support his motion, Thompkins argued that by refraining from speech for a lengthy period of time, he effectively invoked his right to remain silent, thus requiring police to stop the interrogation. Thompkins added that, since he did not waive his right to remain silent, his inculpatory statement was involuntary because “the police continued to ask him questions in an effort to compel a confession.” The Michigan Court of Appeals affirmed the conviction, concluding in the mere 207 words it devoted to the suppression issue that Thompkins “voluntarily waived his right to remain silent and . . . did not subsequently invoke” it. In a habeas corpus challenge of his state conviction, Thompkins lost at the U.S. District Court for the Eastern District of Michigan but prevailed at the U.S. Court of Appeals for the Sixth Circuit.
The U.S. Supreme Court granted certiorari on the Defendant-Respondent’s habeas corpus challenge to decide whether Miranda and its progeny barred law enforcement from continuing to question Thompkins after he received proper warning of his rights but kept mostly quiet, neither expressly invoking nor expressly waiving his rights. Rendering a 5-4 decision, the Court determined that continuous police questioning is permissible under such circumstances, thus reversing the Sixth Circuit and embracing the judgment of the Michigan appeals court on the matter. In so deciding, the Supreme Court applied its prior decisions on the Miranda right to counsel and held that suspects must now unambiguously invoke the Miranda right to remain silent as well. The Court held further that where a suspect makes any uncoerced statement to law enforcement, it is an effective waiver so long as the suspect received the Miranda warnings, understood them, and did not invoke the Miranda rights.
In reaching its conclusions, the Berghuis majority overlooked two important points of Miranda precedent: first, the rule that the right to remain silent may be invoked “in any manner”; and second, the requirement that the prosecution must carry a “heavy burden” of overcoming the presumption against waiver before it may admit any statement into evidence. In so doing, the Court opened the door for policy interests, namely police interests, to serve as determining factors in Berghuis.
In Part II, this comment will explain Fifth Amendment jurisprudence as it existed prior to Berghuis by providing a brief history of Miranda and its progeny in the Supreme Court and lower courts. Part III of this comment will analyze how the Berghuis Court used precedent selectively to embrace the decision of the Michigan court, with the result of undermining Miranda’s safeguards and advancing policy favoring law enforcement. Part III will also discuss why the Court should have struck down the Michigan decision, how Berghuis’s new standards sanction relaxed court findings and law enforcement practices, and how adding a sentence to the existing Miranda warnings can limit Berghuis’s negative impacts on suspects.
II. Historical Background
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”), thereby amending the standards first enacted in 1948 for habeas corpus review of state court convictions. The relevant parts of this Act provide that writs of habeas corpus may only be granted “with respect to any claim that was adjudicated on the merits in State court proceedings” if such a claim “resulted in a decision that was contrary to or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Although deference is usually afforded to state convictions, such deference is withdrawn whenever a Supreme Court precedent “requires a different result.” What the Supreme Court had said in the past, therefore, was to be the determining factor for the outcome of the defendant’s case in Berghuis.
The Self-Incrimination Clause, found in the Fifth Amendment to the United States Constitution, provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” In the 1966 Miranda opinion, the Supreme Court promulgated “a set of prophylactic measures” that police and courts must follow to ensure the Fifth Amendment privilege is “scrupulously honored.” These measures included: (1) warning suspects, prior to questioning, of the right to remain silent and the right to have counsel present; (2) allowing suspects to “cut off questioning” by invoking these rights “in any manner, at any time”; and (3) requiring that, before any statement obtained during interrogation may be admitted as trial evidence, the prosecution must meet its “heavy burden” of showing that proper warnings were given and the suspect “knowingly and intelligently waive[d] these rights.” The Miranda Court reasoned that without these safeguards, the “inherently compelling pressures” of custodial interrogation may “undermine the individual’s will to resist,” causing the suspect to make self-incriminating statements even “where he would not otherwise do so freely.”
Miranda turned out to be a polarizing opinion. At the Supreme Court level, among the most debated Miranda topics have been the rules relating to waiver of rights, though it appears relatively little has been said about invocation. Over the years, the Court’s general trend has been toward the erosion of Miranda’s original protections. Yet, prior to Berghuis, some of Miranda’s core principles remained in effect, including the rule that invocation of the right to silence may be made “in any manner,” the rule that law enforcement must “respect the accused’s decision to exercise the rights outlined in the warnings,” and the requirement that the prosecution must carry a “heavy burden” of proving waiver.
One of the first Supreme Court opinions on waiver of the right to remain silent came in the 1975 consideration of Michigan v. Mosley. In that case, a detective halted interrogation promptly upon the suspect’s statement that he did not wish to speak about the crimes in question. However, over two hours later, the suspect made an inculpatory statement when a different detective began questioning him in a new location about a separate criminal act. In upholding the waiver, the Court concluded that any properly warned statements made after a suspect decides to remain silent are voluntary and admissible if the prosecution can prove the police “scrupulously honored” the suspect’s “right to cut off questioning,” a right which the Court identified as Miranda’s “critical safeguard.” The Court reasoned that, since Miranda intended to establish “fully effective means” of “counteract[ing] the coercive pressures of the custodial setting,” a rule requiring police to fully respect a person’s exercise of Fifth Amendment rights was necessary to Miranda’s “reasonable and faithful” application.
Just four years later, however, the Court “retreated” from some of the “language and tenor of the Miranda opinion” by permitting implied waivers in North Carolina v. Butler. There, the Court held that, under Miranda, “an explicit statement of waiver is not invariably necessary,” but “the question of waiver must be determined on ‘the particular facts and circumstances surrounding that case.’” In dicta, the Court explained, “in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated,” which might include “silence, coupled with an understanding of . . . rights and a course of conduct indicating waiver.” Although the Butler Court expanded the range of circumstances under which waiver may be found, it importantly reaffirmed how “courts must presume that a defendant did not waive his rights; the prosecution’s burden is great.”
The Court provided additional safeguards for the right to counsel in its 1981 decision of Edwards v. Arizona. There, the Court held that, when a suspect invokes the right to counsel, questioning must cease until such counsel is present or until the suspect recommences interaction. Furthermore, where a statement follows invocation of the right to counsel, the Edwards Court held that “a valid waiver of that right cannot be established by showing only that [the suspect] responded to further police-initiated custodial interrogation even if he has been advised of his rights.”
In 1986, the Supreme Court’s decision in Moran v. Burbine framed the issue of a waiver’s voluntariness in the negative, explaining that a waiver need only be “the product of free and deliberate choice rather than intimidation, coercion, or deception.” There, the Court reasoned that “full comprehension” of the Miranda rights themselves is “sufficient to dispel whatever coercion is inherent in the interrogation process.”
That same year, the Court’s decision in Colorado v. Connelly confirmed that a properly warned statement is a voluntary waiver of the right to remain silent if it is made in the “absence of police overreaching.” In rejecting a “‘free will’ rationale,” which would have invalidated waivers made “by reason of any compulsion,” the Court reasoned that “the Fifth Amendment privilege is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’” Connelly also established that a preponderance of the evidence is sufficient to carry the heightened burden to prove waiver.
It was not until 1994 that the Supreme Court crafted a limiting standard for invocation of Miranda rights, and even then its pronouncement only applied to the right to counsel. In Davis v. United States, the Court held that to invoke the Miranda right to the presence of an attorney, and thereby invoke Edwards’s additional protections, “the suspect must unambiguously request counsel.” Thus, to avoid ambiguity, a suspect “must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” The Davis Court reasoned that society’s need for strong, effective law enforcement militates an objective, “bright line that can be applied by officers in the real world of investigation and interrogation without unduly hampering the gathering of information.” In justifying its new rule the Court noted that, although Miranda’s primary protection lies in the warnings themselves, Edwards supplies additional protection against improper findings of waiver.
Finally, in Maryland v. Shatzer, decided only six days before oral argument began on Berghuis, the Court issued dicta repeating the heavy-burden-standard that the prosecution must meet in order to rebut the presumption of non-waiver.
The foregoing illustrates that, prior to Berghuis, the Supreme Court had not decided whether Davis’s standard for invocation also applied to the right to remain silent. However, in the years following Davis, a majority of lower courts agreed that invocation of the right to remain silent must also be unambiguous. Although there was some Supreme Court language indicating that this could be the correct practice, other language favored a contrary conclusion. Moreover, after the Supreme Court handed down its decision in Butler, findings of implied waivers became the prevailing practice among lower courts. Yet, because the Supreme Court had never “delineated what course of conduct would be sufficient to manifest such an implied waiver,” some disagreement still existed about just what the prosecution needed to prove. The Berghuis majority eventually settled both of these issues in a sweeping opinion that turned Miranda “upside down.”
In hearing Berghuis, the Court was to decide whether the decision of the Michigan Court of Appeals was “contrary to or involved an unreasonable application of” the Supreme Court’s Miranda precedents. A faithful application of all relevant Miranda precedents was thus required of the Court to determine if any such precedents necessitated different conclusions than those reached by the Michigan court. Moreover, the Court’s decision in Berghuis was to be animated by policy that achieved “the proper balance between society’s legitimate law enforcement interests and the protection of the defendant’s Fifth Amendment rights.” A balance-striking yet “‘fully effective’ prophylaxis” is “critical to ensuring that [inculpatory] statements are voluntary admissions and not the dubious product of an overborne will.”
Even so, the Court did not fully observe any of these tenets, but instead continued the trend of eroding Miranda’s safeguards. First, the majority’s holdings on invocation and waiver of the right to remain silent overlooked important Miranda precedents that favored the Defendant-Respondent and disfavored the decision reached by the Michigan Court of Appeals. As a result, Berghuis’s disposition mostly depended on the Court’s balancing of policy interests, which it balanced in favor of law enforcement. Second, the Berghuis majority should have overturned the decision of the Michigan court because a “faithful application” of all relevant Miranda precedents, as was required by the applicable standard of review, would have commanded that result. Third, the majority adopted a rule that further diminishes Miranda’s prophylactic efficacy by sanctioning liberal court findings and police interrogation practices. Finally, adding to the Miranda warnings a sentence that fairly informs suspects of the new invocation requirement will likely help restore Miranda’s efficacy and maintain the necessary balance of interests.
A. The Berghuis Majority Reached Its Conclusions by Glossing Over and Sometimes Ignoring Important Miranda Precedents, Thus Allowing It to Use Policy to Justify Construing Miranda’s Dictates in Favor of Law Enforcement
Under the applicable standard of review set forth by Congress, the Supreme Court was to make its decision in Berghuis based on a deferential analysis. This essentially meant that the Court had to hold for the Petitioner, the warden of a Michigan correctional facility, unless the Supreme Court’s “clearly established” Miranda precedents required a finding of invocation or non-waiver. A scrupulous application of all its fundamental Miranda precedents was thus required of the Court. However, the Court omitted two important precedents,  each of which is discussed in turn below.
1. The Majority Ignored That the Right to Remain Silent May Be Invoked
“In Any Manner”
Miranda provided that “the interrogation must cease” whenever a suspect either “states that he wants an attorney” or else “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent.” Prior to Berghuis, no Supreme Court precedent had abrogated the “in any manner” language as applied to the right to remain silent, since the exception carved out in Davis only concerned the right to counsel and there was “no clearly established Supreme Court law applying . . . Davis . . . to the right to remain silent.” Mosley reaffirmed the Miranda Court’s intention to distinguish the procedural protections that are triggered by remaining silent from those safeguards that are triggered by requesting an attorney. Yet, the majority never mentioned the “in any manner” language in its opinion. In oral argument, the words appeared in passing just three times, each time during the Petitioner’s rebuttal argument. Not surprisingly, none of the justices who signed on to the majority opinion asked counsel to address the language during oral argument.
Instead of addressing the “in any manner” language head-on, the Court flatly rejected the Defendant-Respondent’s invocation argument as “unpersuasive” based on Davis. In the paragraph immediately following, the Court justified its extension of Davis based on policy considerations alone, stating, “there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel.” However, this statement by the Court misinterpreted Davis, which justified its heightened standard for invocation of the right to counsel based in part on the additional protections available to suspects under Edwards. Indeed, there is good reason for distinct standards of invocation because such is consistent with the different effects produced by invoking each of the two rights.
After categorically rejecting the Defendant-Respondent’s discussion on invocation, the Berghuis majority went on to state that, in contrast to the policy which disfavors separate standards, “There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously.” The Court asserted that this rule is justified because it establishes “an objective inquiry that ‘avoid[s] difficulties of proof and . . . provide[s] guidance to officers’ on how to proceed in the face of ambiguity.” But a contrary rule, the Court reasoned, would require police “to make difficult decisions about an accused’s unclear intent and face the consequence of suppression ‘if they guess wrong.’” The Court concluded that if voluntary confessions are suppressed by the Miranda rule, such a result “would place a significant burden on society’s interest in prosecuting criminal activity.”
However, in balancing the interests of criminal suspects, the Court only stated that “[t]reating an ambiguous or equivocal act, omission, or statement as an invocation of Miranda rights ‘might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation.’” The Court reached this conclusion by quoting, “‘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.’”
Thus, the Court arrived at its conclusion on Thompkins’s invocation claim only by ignoring the Miranda precedent that the right to remain silent could be invoked “in any manner,” and by giving its primary focus to the job facing police and prosecutors. The Court took a similar gap-fill approach in its analysis of Thompkins’s waiver claim.
2. The Majority Glossed Over the Implications of the “Heavy Burden” in
In the years since Miranda, the Supreme Court has continued to emphasize that the prosecution carries a “heavy burden” to prove waiver. One of the fundamental implications of this burden, and something that the Court reaffirmed even in the seminal Butler case, is that “a court may not presume waiver from a suspect’s silence or from the mere fact that a confession was eventually obtained.” Indeed, Butler stated: “The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great.” Thus, in each individual case, the prosecution must overcome this rebuttable presumption and prove that a waiver was made based on “the particular facts and circumstances surrounding that case.” Although Butler permitted implied waivers “in at least some cases” based on a clear “course of conduct,” Butler provides no support for a per se rule favoring implied waivers under any specified circumstances because such a rule would ignore the unique facts of individual cases and create a presumption of waiver.
At the time Berghuis was decided, nothing even hinted that the prosecution could be relieved of its heavy burden. Yet, in Berghuis, the Supreme Court stated, “As a general proposition, the law can presume . . . an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.” In reviewing the relevant precedents, the Court simply reasoned that although “[s]ome language in Miranda could be read to indicate that [implied] waivers are difficult to establish,” the opinion as a whole “does not impose a formalistic waiver procedure.” The majority justified its conclusion in terms of policy, finding that nothing more is required for waiver “given the practical constraints and necessities of interrogation and the fact that Miranda’s main protection lies in advising defendants of their rights.”
The majority’s analysis therefore failed to consider prior Supreme Court precedents that address the presumption against waiver and emphasize how a course of conduct can only be established on a case-by-case basis. Worse yet, the majority’s new waiver standard “flatly contradict[s the] longstanding views that ‘a valid waiver will not be presumed . . . simply from the fact that a confession was in fact eventually obtained,’ and that ‘[t]he courts must presume that a defendant did not waive his rights.’” Furthermore, the Court’s decision dilutes the prosecution’s burden to a simple showing that a suspect uttered inculpatory statements after receiving standard Miranda warnings.
Thus, the majority also reached its conclusion on Thompkins’s waiver claim by glossing over prior Miranda precedents dealing with the prosecution’s heavy burden in proving waiver. As with its disposal of the invocation issue, the majority was able to fill the precedential void it created with policy emphasizing the practical realities police and prosecutors must negotiate. In the end, the majority’s analysis should have produced the opposite result.
B. Instead of Promulgating New Legal Rules, the Berghuis Majority Should Have Adhered to Its Standard of Review and Faithfully Applied Its Miranda Precedents so as to Strike Down the State Court Decision
In Berghuis, the relevant standard of review required the Supreme Court to faithfully apply its prior Miranda precedents and determine whether the decision of the Michigan Court of Appeals conformed to the totality of those precedents. What the majority did, in contrast, was cherry-pick its Miranda precedents and conform them to the Michigan court’s decision. The Court did so by raising the standard for invocation and lowering the standard for waiver, so as to handcraft a rule that upheld Thompkins’s conviction and, perhaps most notably, approved the reasoning that accompanied the denial of Thompkins’s suppression motion.
The Berghuis majority may have felt justified in the action it took. After all, letting a clearly guilty murderer go free on a technicality is disheartening, to say the least. And of course, much more was at stake in Berghuis than the decision of a single state court regarding one individual criminal, for Berghuis ultimately affirms the prevalent practices among a majority of lower courts and law enforcement agencies. Despite what motivating factors might have been involved, the Berghuis majority should not have promulgated new legal rules in deciding Thompkins’s case; a “faithful application” of “relevant clearly established federal law” was enough to settle all issues. Any further action by the majority demonstrated a lack of judicial restraint in derogation of the applicable standard of review set forth by Congress.
Instead, the Berghuis majority ought to have reversed the Michigan court for two reasons. First, the majority should have reversed the state court because “relevant clearly established federal law” held that the right to remain silent could still be invoked in any manner, and that the prosecution must still carry a heavy burden of overcoming the presumption against waiver before it may admit any statement into evidence. Second, reversal of the Michigan Court of Appeals would have been justified in Berghuis because that state court failed even to mention, let alone apply either of the above indispensable precedents. As Justice Sotomayor aptly identified, the strongest ground for reversal in this case was the “‘readily apparent’” error of “invert[ing] Miranda’s antiwaiver presumption.” The majority should have determined that the Michigan court reached a conclusion opposite of the Supreme Court on questions of law addressed squarely in Miranda and its progeny. The correct conclusion, in contrast, was that Thompkins invoked his Miranda right to remain silent by in fact remaining silent. This form of invocation was permitted under Miranda’s “in any manner” language. Furthermore, the prosecution could not carry its heavy burden by pointing to the “few limited verbal responses” preceding Thompkins’s inculpatory statement because those responses “simply [did] not evidence a ‘course of conduct indicating waiver.’”
The applicable standard of review required nothing more of the Berghuis Court than the foregoing explicates. For this reason, the Supreme Court’s new rules on invocation and waiver were superfluous to its pronouncement, and the majority ought to have refrained from advancing them in the first place. The Berghuis Court reached the wrong result for the wrong reasons and it may impact courts and police in a way that criminal suspects will find negative.
C. Berghuis Will Likely Have a Relaxing Effect on Court Findings and Law Enforcement Practices in Some Jurisdictions
According to Justice Sotomayor’s dissent, the Berghuis Court’s new rules on invocation and waiver, “taken together,” “bear little semblance to the ‘fully effective’ prophylaxis that Miranda requires.” However, research suggests that, well before Berghuis weakened it, Miranda was already limited in protecting the Fifth Amendment right.
For example, prior to Berghuis, a majority of lower courts were already requiring that invocation of the right to remain silent be unambiguous. Furthermore, lower courts were already making generous findings of waiver. It was extraordinarily easy to establish waiver because the only proof required was “that the suspect answered police questions after saying that he understood the warnings.” As for police practices, training academies were already placing broad emphasis on implied waivers before Berghuis. It also appears that in some parts of the country, police training manuals were applying Davis to the right to silence ahead of the Supreme Court’s official extension of that case in Berghuis.
Thus, if Miranda was not already turned “upside down,” Berghuis certainly turned it that way, and did so in every United States jurisdiction. Berghuis’s first negative impact will involve its new rule that invocation of the right to remain silent be “unambiguous.” When it applied this rule to the circumstances in Berghuis, the majority stated only that if the Defendant-Respondent had said “that he wanted to remain silent or that he did not want to talk with the police . . . he would have invoked his ‘right to cut off questioning.’” Since the Berghuis Court did not specify further what is required for an invocation to meet the unambiguous threshold, lower courts run the risk of rejecting “as ambiguous an array of statements whose meaning might otherwise be thought plain.” After all, the “‘clear-statement’ rule” of Davis and Berghuis does “involve some ‘difficult judgment calls’” because “differentiating ‘clear’ from ‘ambiguous’ statements is often a subjective inquiry.”
This criticism was vindicated in a recent Wisconsin case where the state appeals court, relying on Berghuis, found it ambiguous when a suspect asserted during interrogation: “I got nothin[g] more to say to you. I’m done. This is over.” Given that the suspect made the statement in the midst of an argument over whether he could receive federal charges, the court determined “it was reasonable for the detectives to conclude that his statement was merely a fencing mechanism to get a better deal—one that would free him of exposure to federal charges.” Finding there were “reasonable competing inferences that could be drawn from the statement,” the court thus held the statement to be equivocal and “insufficient to invoke the right to remain silent.”
Prior to Berghuis, the rule allowing the right to silence to be invoked in any manner, if properly applied, would have constrained the Wisconsin court to rule in favor of the suspect. However, by requiring invocation to be clearly articulated, the Wisconsin court was able to deny the suspect’s claim of invocation on the ground that circumstantial evidence justified two mutually exclusive interpretations. This example illustrates how, in at least some cases, Berghuis’s “broad new rule” of unambiguous invocation will permit courts to construe more alleged invocations in favor of law enforcement by giving disproportionate weight and focus to any minutiae tending to show ambiguity.
Another recent finding of ambiguity included the statements: “I wanna go back upstairs”; “I’m done”; and “Quit asking me questions, I told you what I done.” It is also worth noting that lower courts reached similarly counterintuitive results in their pre-Berghuis extensions of the Davis rule.
There is another way that Berghuis may sanction relaxed court findings, and that is by reversing the presumption against waiver under circumstances where inculpatory statements follow understandable Miranda warnings. The fundamental problem with the Court’s rule on waiver is that it effectively “ignores the presumptive nature of the right by shifting the burden to the defendant” to prove a waiver did not occur. Consequently, the protections provided under Miranda have been reduced to the familiar reading of rights and a proscription of actual coercion. As succinctly stated by one of Berghuis’s amici curiae, “Until now, suspects walked into interrogation rooms with their rights intact . . . . If the police thought a person had waived those rights, they had to prove waiver . . . Miranda has been eroded. Again.” Cases following Berghuis confirm that, all across the United States, waivers are now easier to prove because prosecutors must only show that a comprehensible warning was given before an inculpatory expression was uttered—no further course of conduct need be shown.
With regard to police practices, since Berghuis and its preceding cases removed much of Miranda’s original safeguards, waivers may now be subject to the very inherently compelling pressures that Miranda was meant to dispel. At the very least, the Court’s rule may invite “police to question a suspect at length—notwithstanding his persistent refusal to answer questions—in the hope of eventually obtaining a single inculpatory response which will suffice to prove waiver of rights.” At worst, the Court’s approach to waivers will authorize police to pervade their interrogations with badgering techniques “calculated to wear down . . . resistance” by amplifying the “coercive atmosphere.”
As to the requirement that both Miranda rights be invoked unambiguously, it is presently unclear whether such a rule may actually function as the Court intended—as a bright line assisting police in recognizing and respecting invocations. Doubt can certainly be cast on the assumption that Berghuis will establish greater certainty as to when an invocation is actually made, because where police draw the line between equivocal and unequivocal statements is still a subjective decision. One thing is clear at this juncture, however: many of America’s ordinary criminal suspects require education on how to invoke their Miranda rights, if they wish to do so successfully.
The above analysis on Berghuis’s likely impact is merely an illustration of how the Berghuis majority managed to overrule “sub silentio . . . the protections Miranda has long provided for the constitutional guarantee against self-incrimination.” Although Berghuis’s pronouncement did indeed turn Miranda “upside down,” its negative effects may be curbed by a simple change to the Miranda warnings themselves.
D. Adding to the Miranda Warnings Will Help Counteract Berghuis’s Negative Impacts on Suspects
In her dissenting opinion, Justice Sotomayor criticizes that the Berghuis majority’s new rules will require suspects to use “magic words” to stop an interrogation. It is counterintuitive, at best, that a suspect must satisfy the condition of speaking to successfully invoke the Miranda right to silence. But the worst part of the majority’s new invocation rule is that, despite familiarity with Miranda rights through American popular culture, and even after receiving and understanding the Miranda warnings prior to interrogation, most American criminal suspects will be unequipped to invoke their Miranda rights. Those individuals like Thompkins, who sit silently, thinking silence to be the proper method of invocation, will find themselves questioned indefinitely in an environment where almost any statement may constitute a waiver.
When it comes to resolving practical issues in Miranda’s application, Supreme Court precedents show that “two precepts have commanded broad assent: that the Miranda safeguards exist ‘to assure . . . the individual’s right to choose between speech and silence remains unfettered throughout the interrogation process,’ and that the justification for Miranda rules, intended to operate in the real world, ‘must be consistent with . . . practical realities.’” Since the Court’s Miranda precedents “are premised on the idea that custodial interrogation is inherently coercive,” the most appropriate Miranda safeguard is a “precautionary” rule that protects suspects’ rights from the outset.
Today’s real world practical reality is, after Berghuis especially, that the current Miranda warnings do not adequately apprise criminal suspects of how to protect their rights. Thus, although several different solutions to Berghuis’s negative effects have been suggested since the Supreme Court decided that case, the best approach is to add to the existing Miranda warnings themselves, thereby requiring police to faithfully inform criminal suspects on how they must invoke their Miranda rights. A possible addition might come at the end of the current warnings and declare: ‘If you choose to use either of these rights at any time from now, you must clearly say so by verbally communicating that choice to law enforcement.’
This approach, more than others, takes the precaution of ensuring that, prior to commencing interrogations, suspects have all the information necessary to effectively cut off questioning when they feel the need to do so, and are not simply left to personal knowledge of their rights or to after-the-fact remedies. In addition, giving a warning of this kind would provide suspects with a better sense of how to exercise their “right to choose between speech and silence . . . throughout the interrogation process.” It would also make suspects cognizant of the consequences involved in forfeiting Miranda’s privileges.
Without a doubt, it would be untenable to expand Miranda rights so far as to release guilty criminals with impunity. However, constricting Miranda rights too far will put criminal suspects at risk and threaten the integrity of courts and law enforcement. A balance-striking yet “‘fully effective’ prophylaxis” can be found in the precaution of changing Miranda’s warnings. Indeed, precaution is the better solution because even though the privilege against self-incrimination may sometimes serve as a “shelter to the guilty,” it is more often a “protection to the innocent.”
Prior to Berghuis, federal law set forth by the Supreme Court had clearly established that the Fifth Amendment right to remain silent could be invoked in any manner in accordance with Miranda and Mosley. In addition, Miranda and Butler required courts to presume suspects did not waive their rights, and to only find such waivers where the prosecution carried its heavy burden in demonstrating the same. The Supreme Court had not yet decided whether an invocation of the right to remain silent must be unambiguous. Nor had it decided what specific courses of conduct could support findings of implied waiver.
Berghuis settled these matters by holding, first, that the right to remain silent must be invoked unambiguously, and second, that “a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.” Berghuis’s holding thus raised the standard for invocation while simultaneously lowering the standard for waiver of the right to remain silent. The Court arrived at its “broad new rules” by ignoring the above aspects of “relevant clearly established federal law,” thus allowing it to use policy to construe Miranda in favor of law enforcement.
Although Berghuis mostly affirms the prevalent practices among a majority of lower courts and law enforcement, the majority nonetheless made the wrong decision for the wrong reasons by eschewing its applicable standard of review to promulgate new Miranda rules, instead of faithfully applying those prior Miranda precedents under which the Defendant-Respondent was entitled to his requested relief. The Supreme Court’s disposition of Berghuis thus continued the emasculating trend of turning Miranda “upside down.” The decision will likely relax standards for court findings and law enforcement practices during interrogations, so as to permit fewer invocations and more waivers. However, changing the Miranda warnings to fairly inform criminal suspects of the new invocation requirement will likely limit these negative effects and help preserve the balanced, efficacious prophylaxis that Miranda ought to be.
* Michael L. Vander Giessen, Juris Doctor candidate, Gonzaga University School of Law, expected May 2012. I thank my wife, Alexandria, and my son, Marcus, for their seemingly inexhaustible love, patience, and support; my parents, Louis and Alice, who taught me the value of hard work; and Professor M. Lisa Bradley, who taught me critical legal analysis, and how to love The Bluebook.
. 384 U.S. 436, 478-79 (1966). The opinion reads:
[W]e hold that when an individual is taken into custody . . . and is subjected to questioning . . . [p]rocedural safeguards must be employed . . . . He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that 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. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.
. See Dickerson v. United States, 530 U.S. 428, 443 (2000).
. See id. at 443-44 (“If anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision’s core ruling that unwarned statements may not be used as evidence in the prosecution’s case in chief.”); see also Yale Kamisar, On the Fortieth Anniversary of the Miranda Case: Why We Needed It, How We Got It—And What Happened to It, 5 Ohio St. J. Crim. L. 163, 184 (2007).
. See Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. 1519, 1521, 1525 (2008) (“[T]he Supreme Court has effectively encouraged police practices that have gutted Miranda’s safeguards . . . . [A]s a protective device, Miranda is largely dead. It is time to . . . move on.”); see also William J. Stuntz, Miranda’s Mistake, 99 Mich. L. Rev. 975, 998-99 (2001) (stating that the Miranda “experiment” is “a modest failure”).
. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2272-73 (2010) (Sotomayor, J., dissenting) (stating that the majority’s rule on invocation “bears little semblance to the ‘fully effective’ prophylaxis that Miranda requires” while its rule on waiver “dilut[es] the prosecution’s burden of proof” and “overrules sub silentio an essential aspect of the protections Miranda has long provided”) (citation omitted).
. See id. at 2257 (majority opinion).
. Joint Appendix, Berghuis, 130 S. Ct. 2250 (No. 08-1470), 2009 WL 4716053 at *10a, *17a, *19a.
. See id. at *10a.
. Berghuis, 130 S. Ct. at 2256.
. See id. at 2256-57.
. Joint Appendix, supra note 7, at *153a.
. See id. at *231a-32a.
. See id. at *26a, *28a.
. See Berghuis, 130 S. Ct. at 2259.
. See id. at 2257.
. See id.
. Joint Appendix, supra note 7, at *27a.
. People v. Thompkins, No. 242478, 2004 WL 202898, at *1 (Mich. Ct. App. Feb. 3, 2004) (per curiam), aff’d sub nom. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).
. See Thompkins v. Berghuis, No. 05-CV-70188-DT, 2006 WL 2811303, at *16 (E.D. Mich. Sept. 28, 2006), aff’d, 130 S. Ct. 2250 (2010).
. See Thompkins v. Berghuis, 547 F.3d 572, 592 (6th Cir. 2008), rev’d, 130 S. Ct. 2250 (2010).
. See generally Berghuis v. Thompkins, 130 S. Ct. 48 (2009) (mem.), certifying questions to 547 F.3d 572 (6th Cir. 2008), petition for cert. filed, Petition for a Writ of Certiorari, Berghuis, 130 S. Ct. 2250 (No. 08-1470), 2009 WL 1511736.
. See Berghuis, 130 S. Ct. at 2264-65.
. See id. at 2259-60.
. See id. at 2264.
. See id. at 2266 (Sotomayor, J., dissenting) (stating that “the Court’s answers” on the issues of invocation and waiver “do not result from a faithful application of our prior decisions”).
. Id. at 2273 (quoting Miranda v. Arizona, 384 U.S. 436, 473 (1966)).
. Id. at 2269 n.2, 2270 (quoting Miranda, 384 U.S. at 475).
. See id. at 2262 (majority opinion) (devoting the majority of analysis to policy instead of precedent); see also id. at 2273 (Sotomayor, J., dissenting) (“Today’s decision . . . ignores the important interests Miranda safeguards.”); Charles Weisselberg, Elena Kagan and the Death of Miranda, Huffington Post (June 1, 2010, 2:45 PM), http://www.huffingtonpost.com/charles-weisselberg/elena-kagan-and-the-death_b_
596447.html (“The [Berghuis] Court has formally transformed Miranda from a rule aimed at protecting suspects to one that protects police.”).
. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 104, 110 Stat. 1214 (codified at 28 U.S.C. § 2254 (2006)) (originally enacted as Act of June 25, 1948, ch. 646, 62 Stat. 967).
. 28 U.S.C. § 2254(d)(1) (2006).
. See Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009).
. Brief for Petitioner at 43, Berghuis, 130 S. Ct. 2250 (No. 08-1470), 2009 WL 4693841 at *43.
. See Berghuis, 130 S. Ct. at 2271, 2274 (Sotomayor, J., dissenting) (discussing what was and was not necessary “to the disposition of [Berghuis]”).
. U.S. Const. amend. V.
. Maryland v. Shatzer, 130 S. Ct. 1213, 1219 (2010).
. Miranda v. Arizona, 384 U.S. 436, 441, 479 (1966).
. Id. at 473-75, 479.
. Id. at 445, 467.
. See Kamisar, supra note 3, at 163 (describing Miranda as “one of the most praised, most maligned—and probably one of the most misunderstood—Supreme Court cases in American history”); Stuntz, supra note 4, at 975 (describing the “ideological” divide between left and right that was created in the wake of Miranda); Joan Biskupic, Supreme Court: Suspects Must Assert Right to Silence, USA Today, June 24, 2010, http://www.usatoday.com/news/washington/judicial/2010-06-01-supreme-court-miranda-rights_N.htm (stating that Miranda “often spurs controversy”).
. See Kamisar, supra note 3, at 180-82 (discussing Miranda’s subsequent history).
. See Dickerson v. United States, 530 U.S. 428, 443-44; see also Kamisar, supra note 3, at 184; Weisselberg, supra note 4, at 1521.
. Berghuis v. Thompkins, 130 S. Ct. 2250, 2267-68 (2010) (Sotomayor, J., dissenting) (quoting Miranda, 384 U.S. at 473, 475; Moran v. Burbine, 475 U.S. 412, 420 (1986)) (stating that, prior to the majority’s holding, these three points were matters of “clearly established federal law”).
. See 423 U.S. 96, 100 (1975).
. See id. at 104.
. See id. at 96, 104.
. Id. at 103-04 (quoting Miranda, 384 U.S. at 474).
. Id. (quoting Miranda, 384 U.S. at 479).
. Berghuis v. Thompkins, 130 S. Ct. 2250, 2261 (2010) (quoting Connecticut v. Barrett, 479 U.S. 523, 531-32 (1987) (Brennan, J., concurring in judgment)).
. North Carolina v. Butler, 441 U.S. 369, 374-76 (1979) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
. Id. at 373.
. 451 U.S. 477, 484 (1981).
. See id. at 484-85.
. Id. at 484.
. 475 U.S. 412, 421 (1986).
. Id. at 427.
. 479 U.S. 157, 167, 170 (1986).
. Id. at 170 (quoting Oregon v. Elstad, 470 U.S. 298, 305 (1985)).
. See id. at 167-68.
. See Davis v. United States, 512 U.S. 452, 459 (1994).
. Id. at 459, 461.
. Id. at 459.
. Id. at 461.
. See id. at 460-61.
. See 130 S. Ct. 1213, 1219 (2010) (“To establish a valid waiver [of the rights to silence and counsel], the State must show that the waiver was knowing, intelligent, and voluntary under the ‘high standar[d] of proof for the waiver of constitutional rights.’” (second alteration in original) (quoting Miranda v. Arizona, 384 U.S. 436, 475 (1966))).
. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010).
. See Weisselberg, supra note 4, at 1579-80.
. Compare Solem v. Stumes, 465 U.S. 638, 648 (1984) (stating in dicta that, “while Mosley did distinguish the right to counsel from the right to silence, . . . much of the logic and language of the opinion could be applied to the invocation of the former” (citation omitted)), with Michigan v. Mosley, 423 U.S. 96, 104 n.10 (1975) (stating in dicta that Miranda “clearly . . . distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney”).
. See Brief for Petitioner, supra note 32, at 26-27; Weisselberg, supra note 4, at 1581-82.
. Brief for Petitioner, supra note 32, at 26-27 (describing the disagreement between the lower courts on whether proper warning, acknowledgement of rights, and an uncoerced statement were sufficient facts to establish implied waiver, or whether more was required).
. Berghuis, 130 S. Ct. at 2278 (Sotomayor, J., dissenting) (discussing the impact of the majority’s “broad new rules”).
. 28 U.S.C. § 2254(d)(1) (2006); see also Berghuis, 130 S. Ct. at 2259.
. See Berghuis, 130 S. Ct. at 2266 (Sotomayor, J., dissenting) (describing where the Berghuis majority went wrong); see also Brief for Petitioner, supra note 32, at 43 (describing the applicable standard of review).
. Moran v. Burbine, 475 U.S. 412, 424 (1986).
. Berghuis, 130 S. Ct. at 2273 (Sotomayor, J., dissenting) (quoting Miranda, 384 U.S. at 444).
. See id. at 2266, 2273 (decrying the majority’s failure to “faithful[ly] appl[y]” the Court’s “prior decisions,” its lack of “judicial restraint,” and its decision to “ignore the important interests Miranda safeguards”); see also Weisselberg, supra note 28 (stating that Berghuis “finally dealt Miranda a death blow” after a series of other erosions) (italics added).
. See Berghuis, 130 S. Ct. at 2270 (Sotomayor, J., dissenting) (“Perhaps because our prior Miranda precedents so clearly favor Thompkins, the Court today goes beyond AEDPA’s deferential standard of review and announces a new general principle of law.”).
. See id. at 2262 (majority opinion) (devoting the majority of analysis to policy instead of precedent); see also id. at 2273 (Sotomayor, J., dissenting) (accusing the majority of failing to protect the interests of criminal suspects).
. Id. at 2266.
. See infra notes 169-71, 179, 181, 184 and accompanying text.
. See infra notes 205-06 and accompanying text.
. See Berghuis, 130 S. Ct. at 2266 (Sotomayor, J., dissenting); see also Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009).
. Brief for Petitioner, supra note 32, at ii, 43; see also Williams v. Taylor, 529 U.S. 362, 405 (2000) (stating that a state court decision is contrary to clearly established Supreme Court precedent “if the state court applies a rule that contradicts the governing law set forth in [such] cases”).
. See Berghuis, 130 S. Ct. at 2266 (Sotomayor, J., dissenting).
. See id. at 2278 (concluding that the “results” of the majority’s decision “find no basis in Miranda or . . . subsequent cases”).
. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).
. See Berghuis, 130 S. Ct. at 2275.
. Brief for Respondent at 34, Berghuis, 130 S. Ct. 2250 (No. 08-1470), 2010 WL 265634 at *34.
. See Michigan v. Mosley, 423 U.S. 96, 104 n.10 (1975).
. See generally Berghuis, 130 S. Ct. at 2255-65.
. See Transcript of Oral Argument at 56, 58-59, Berghuis, 130 S. Ct. 2250 (No. 08-1470), 2010 WL 689577 at *56, *58-59.
. See id.
. Berghuis, 130 S. Ct. at 2259.
. Id. at 2260.
. See Davis v. United States, 512 U.S. 452, 461 (1994); see also Berghuis, 130 S. Ct. at 2275, 2278 (Sotomayor, J., dissenting) (calling the majority’s use of Davis “novel” and “awkward”); Weisselberg, supra note 4, at 1578 (suggesting the “particularly powerful protections” that accompany the right to counsel under Edwards influenced the Court’s decision in Davis to require a higher standard for invocation of that right).
. See Berghuis, 130 S. Ct. at 2275 (Sotomayor, J., dissenting).
. Id. at 2260 (majority opinion).
. Id. (alterations and omission in original) (quoting Davis, 512 U.S. at 458-59).
. Id. (quoting Davis, 512 U.S. at 461).
. Id. (citing Davis, 512 U.S. at 459-61; Moran v. Burbine, 475 U.S. 412, 427 (1986)).
. Id. (quoting Burbine, 475 U.S. at 425).
. Id. (quoting Burbine, 475 U.S. at 427).
. See supra notes 25-26, 90-92 and accompanying text.
. See supra notes 99-100 and accompanying text; see also Robert Barnes, Supreme Court: Suspects Must Invoke Right to Remain Silent in Interrogations, Wash. Post (June 2, 2010), http://www.washingtonpost.com/wp‑dyn/content/article/2010/06/01/AR201006
0102114.html (reporting the opinion that the Berghuis majority “recognized the practical realities . . . in dealing with suspects”) (internal quotation marks and attribution omitted).
. The term “gap-fill” is used here to describe the majority’s tendency to omit Miranda precedents disfavorable to its position, and to fill those analytical “gaps” by replacing the omitted precedents with supportive policy.
. See infra note 122 and accompanying text.
. See Berghuis, 130 S. Ct. at 2269 (Sotomayor, J., dissenting) (citing Tague v. Louisiana, 444 U.S. 469, 470-71 (1980) (per curiam); Fare v. Michael C., 442 U.S. 707, 724 (1979)).
. Id. (citing North Carolina v. Butler, 441 U.S. 369, 373(1979)).
. Butler, 441 U.S. at 373.
. Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
. Butler, 441 U.S. at 373.
. See Berghuis, 130 S. Ct. at 2272 (Sotomayor, J., dissenting).
. See id.
. Id. at 2262 (majority opinion).
. Id. at 2260-62.
. Id. at 2262.
. See Brewer v. Williams, 430 U.S. 387, 404 (1977).
. See Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
. Berghuis, 130 S. Ct. at 2271 (Sotomayor, J., dissenting) (omission and second alteration in original) (citation omitted) (quoting Miranda v. Arizona, 384 U.S. 436, 475 (1966); North Carolina v. Butler, 441 U.S. 369, 373(1979)).
. See id. at 2272.
. See supra notes 117-19 and accompanying text.
. See Adam Liptak, You Have the Right to Remain Silent. But Don’t, if You Want to Use It, N.Y. Times, June 2, 2010, at A15, available at 2010 WLNR 11256938 (reporting the opinion that, in rendering its decision, the Court in Berghuis “recognized the practical realities . . . in dealing with suspects”).
. See Berghuis, 130 S. Ct. at 2268, 2273 (Sotomayor, J., dissenting) (“Even if Thompkins did not invoke [the right to silence], he is entitled to relief because Michigan did not satisfy its burden of establishing waiver.”).
. See supra notes 82-84 and accompanying text.
. See Berghuis, 130 S. Ct. at 2278 (Sotomayor, J., dissenting).
. See id. at 2271, 2274 (stating that the majority’s rule on invocation “eschews th[e] narrow ground of decision” established under AEDPA and “instead extend[s] Davis,” while its rule on waiver “goes beyond AEDPA . . . and announces a new general principle of law”).
. See supra note 5 and accompanying text.
. See supra note 77 and accompanying text; see also Editorial, Speaking Up to Stay Silent, N.Y. Times, June 2, 2010, at A24, available at 2010 WLNR 11257011 (“[T]he majority is essentially rewriting . . . the Miranda system without admitting it.”) (italics added).
. Compare Berghuis, 130 S. Ct. at 2262 (stating that Miranda “does not impose a formalistic waiver procedure” because its “main protection lies in advising defendants of their rights”), with Joint Appendix, supra note 7, at *27a-28a (stating that “[t]o establish a valid waiver of Miranda rights, the prosecution need only present evidence sufficient to demonstrate that the accused understood” his or her rights before speaking and thereafter made an “unconstrained” statement) (italics added) (internal quotation marks and citation omitted).
. See Berghuis, 130 S. Ct. at 2260, 2263 (asserting that “[t]here is good reason” for the new rule on invocation, and that the new rule on waiver “makes sense”).
. See Ben Conery, Supreme Court: Speak Up to Shut Up With Miranda Right, Washington Times, June 1, 2010, http://www.washingtontimes.com/news/2010/jun/1/
supreme-court-speak-up-shut-up-with-miranda-right/ (“The stakes involved are high as the failure to properly follow Miranda can lead to incriminating statements made by a suspect being kept out of evidence at trial.”) (italics added); see also Jason Kotowski, U.S. Supreme Court Clarifies Miranda Rights, Local Attorneys Mixed on Decision, Bakersfield Californian, June 12, 2010, http://www.bakersfield.com/news/local/x1008891539/U-S-Supreme-Court-clarifies-Miranda-rights-local-attorneys-mixed-on-decision (reporting the unanswered question: “[W]hy are defense attorneys so set on preventing the trier of fact from hearing” a statement that is “not the byproduct of coercion . . . ?” (internal quotation marks and attribution omitted)); Mary Sanchez, Supreme Court Diverges over Miranda Warning, Kan. City Star, June 7, 2010, http://www.kansascity.com/2010/06/07/1999982/
supreme-court-diverges-over-miranda.html (voicing how some may opine: “[A]s long as the good guys win out over the bad, who cares how we get there . . . ?”).
. See Brief for Petitioner, supra note 32, at 26 (stating that a majority of lower courts find an implied waiver where there is proper warning, acknowledgment of rights, and an uncoerced statement); see also Weisselberg, supra note 4, at 1579-80 (stating that a majority of lower courts have applied the “‘unambiguous’” standard to invocation of the right to remain silent); id. at 1585 (discussing the impacts of the aforementioned court findings on police practices).
. Berghuis, 130 S. Ct. at 2266-67 (Sotomayor, J., dissenting); see also id. at 2271 (“No necessity exists to justify the Court’s broad announcement today.”).
. See id. at 2266 (“[L]ongstanding principles of judicial restraint counsel leaving for another day the questions of law the Court reaches out to decide . . . .”).
. See infra notes 130-40 and accompanying text.
. Berghuis, 130 S. Ct. at 2267 (Sotomayor, J., dissenting).
. See id. at 2273 (quoting Miranda v. Arizona, 384 U.S. 436, 473 (1966)).
. See id. at 2269 n.2, 2270 (quoting Miranda, 384 U.S. at 475); see also supra notes 107, 113, and accompanying text.
. See People v. Thompkins, No. 242478, 2004 WL 202898, at *1 (Mich. Ct. App. Feb. 3, 2004) (per curiam), aff’d sub nom. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).
. Berghuis, 130 S. Ct. at 2271 (Sotomayor, J., dissenting) (quoting Tague v. Louisiana, 444 U.S. 469, 470-71 (1980)); see also id. at 2268 (stating that Thompkins was “entitled to relief” on the ground of waiver, even if his invocation claim failed).
. Cf. Williams v. Taylor, 529 U.S. 362, 413 (2000) (O’Connor, J., concurring).
. See Berghuis, 130 S. Ct. at 2270 (Sotomayor, J., dissenting) (“Rarely do this Court’s precedents provide clearly established law so closely on point with the facts of a particular case.”).
. See id. at 2257, 2259 (majority opinion) (stating the essence of Thompkins’s waiver argument); see also Donald E. Wilkes, Throttling Miranda: Right Wing Ideologues Support the Government Against the Individual 3 (Popular Media, Working Paper No. 67, 2010), available at http://digitalcommons.law.uga.edu/fac_pm/67 (stating that the “issue [of Thompkins’s invocation claim] was pretty much a no-brainer” because Miranda’s “in any manner” language required police to stop questioning upon Thompkins’s failure to answer questions).
. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).
. Berghuis, 130 S. Ct. at 2256.
. Id. at 2270 (Sotomayor, J., dissenting) (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)).
. See id. at 2271 (Sotomayor, J., dissenting) (suggesting that the Supreme Court should “decline to address questions beyond what is necessary to resolve a case under AEDPA”); see also Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng’g, P.C., 467 U.S. 138, 157 (1984) (stating that, as “a fundamental rule of judicial restraint,” the Supreme Court should not address “constitutional questions in advance of the necessity of deciding them”), quoted in Berghuis, 130 S. Ct. at 2271 (Sotomayor, J., dissenting).
. See Berghuis, 130 S. Ct. at 2266 (Sotomayor, J., dissenting) (“The broad rules the Court announces today are . . . troubling because they are unnecessary to decide this case . . . .”).
. See Emily Berman, Op-Ed., You Still Have the Right to Remain Silent, CNN, (June 2, 2010, 4:34 PM), http://www.cnn.com/2010/OPINION/06/02/Berman.Miranda.
supreme.court/index.html. Professor Berman states:
[Berghuis’s] potential consequences are as predictable as night following day: Police will interrogate criminal suspects who do not explicitly invoke their rights—often, those will be suspects who are unsophisticated, poorly educated or mentally ill—for hours on end. This will lead, just as inevitably, to more coerced—and therefore unreliable—confessions. And this will result in wrongful incarceration and diminish our collective security. This is the very phenomenon that Miranda aimed to eliminate.
Id. (italics added).
. Berghuis, 130 S. Ct. at 2273 (Sotomayor, J., dissenting) (citation omitted) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1965)).
. See Weisselberg, supra note 4, at 1583 (discussing how “the combination of Davis and implied waivers has altered the contours of the Miranda doctrine” among both courts and law enforcement).
. See id. at 1579-80.
. See Kamisar, supra note 3, at 182.
. George C. Thomas III, Separated at Birth but Siblings Nonetheless: Miranda and the Due Process Notice Cases, 99 Mich. L. Rev. 1081, 1082 (2001).
. See Weisselberg, supra note 4, at 1585.
. See id. at 1583.
. Berghuis v. Thompkins, 130 S. Ct. 2250, 2278 (2010) (Sotomayor, J., dissenting).
. See Berman, supra note 149 (beginning with invocation in a discussion on Berghuis’s “predictable” negative consequences).
. Berghuis, 130 S. Ct. at 2260 (quoting Michigan v. Mosley, 423 U.S. 96, 103 (1975)).
. Id. at 2277 (Sotomayor, J., dissenting); see also Weisselberg, supra note 4, at 1580-81.
. Davis v. United States, 512 U.S. 452, 474 & n.7 (1994) (Souter, J., concurring in judgment).
. Berghuis, 130 S. Ct. at 2277 (Sotomayor, J., dissenting).
. State v. Saeger, No. 2009AP2133-CR, 2010 WL 3155264, ¶ 3 (Wis. Ct. App. Aug. 11, 2010) (alteration in original).
. Id. ¶ 11.
. See Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).
. See Saeger, 2010 WL 3155264, ¶ 8.
. See id. ¶ 11.
. Berghuis v. Thompkins, 130 S. Ct. 2250, 2278 (2010) (Sotomayor, J., dissenting).
. See id. at 2266; see also Biskupic, supra note 39 (reporting the opinion of Professor Weisberg: “There is no question that [Berghuis] authorizes lower courts to construe ambiguous situations in favor of police and prosecutors” (internal quotation marks omitted)); Editorial, Unspoken Rights, Phila. Inquirer, June 4, 2010, at A14, available at 2010 WLNR 11442432 (stating that Berghuis “tilts in favor of police and continues to chip away at individual liberties”).
. See, e.g., Berghuis, 130 S. Ct at 2256-57, 2260 (finding ambiguity in the defendant’s behavior after nearly three hours of substantial silence, sporadically peppered by minor incidents of non-silence); Saeger, 2010 WL 3155264, ¶ 11 (finding ambiguity in an otherwise clear statement by emphasizing minor evidence of the suspect’s defensiveness).
. United States v. Newland, No. 3:09-CR-71 JD, 2010 WL 2629504, at *2-3 (N.D. Ind. June 25, 2010).
. See Berghuis, 130 S. Ct. at 2277 n.9 (Sotomayor, J., dissenting) (citing United States v. Sherrod, 445 F.3d 980, 982 (7th Cir. 2006) (finding ambiguous the statement: “I’m not going to talk about nothin[g]”); Burket v. Angelone, 208 F.3d 172, 180 n.5 (4th Cir. 2000) (finding ambiguous the statement: “I just don’t think I should say anything”); State v. Speed, 961 P.2d 13, 24 (Kan. 1998) (finding ambiguous the statement: “I just ask you guys to go ahead and get this over with and go ahead and lock me up”); State v. Deen, 42,403, p. 2 (La. App. 2 Cir. 4/27/07); 953 So. 2d 1057, 1058-60 (finding ambiguous the statement: “Okay, if you’re implying that I’ve done it, I wish to not say any more. I’d like to be done with this. Cause that’s just ridiculous. I wish I’d . . . don’t wish to answer any more questions.”); State v. Jackson, 107 Ohio St. 3d 300, 2006-Ohio-1, 839 N.E.2d 362, at ¶¶ 96-98 (finding ambiguous the statement: “I don’t even want to, you know what I’m saying, discuss no more about it”); State v. Markwardt, 2007 WI App 242, ¶ 1, 306 Wis. 2d 420, 742 N.W.2d 546 (finding ambiguous the statement: “Then put me in jail. Just get me out of here. I don’t want to sit here anymore, alright? I’ve been through enough today”)).
. See Berghuis, 130 S. Ct. at 2271-72 (Sotomayor, J., dissenting).
. Brief for Respondent, supra note 88, at 27.
. See Barnes, supra note 104 (discussing Americans’ familiarity with Miranda warnings); see also Sherry F. Colb, The Supreme Court Holds That Responding to Police Interrogation Waives the Right to Remain Silent, FindLaw (June 7, 2010), http://writ.news.findlaw.com/colb/20100607.html (asserting that Berghuis “leaves [Miranda] to stand as an arbitrary disclosure requirement, rather than the protection against coercive interrogation that it was originally crafted to be”).
. See Liptak, supra note 122 (reporting “[t]he Supreme Court recognized” that a “statement should be admissible as long as it is not compelled”).
. Barnes, supra note 104 (second omission in original) (italics added) (reporting the opinion of Jonathan Abram of the National Association of Criminal Defense Lawyers).
. See, e.g., Hall v. Thomas, 611 F.3d 1256, 1287-88 (11th Cir. 2010) (concluding that a nearly sixteen-year-old defendant’s confession constituted a “knowing, intelligent, and voluntary” waiver where it was made after he was read his Miranda rights and in the absence of any complaint that he “was confused or misunderstood”); Pepaj v. McKee, No. 2:07-CV-12610, 2010 WL 2816801, at *3-4 (E.D. Mich. July 16, 2010) (referring to Berghuis and concluding that, where “police officers advised [the defendant] of his Miranda rights before interrogating him,” the defendant “knowingly and intelligently waived his Miranda rights” by speaking with police thereafter); Johnson v. Martel, No. C 09-0937 JSW (PR), 2010 WL 2794358, at *4 (N.D. Cal. July 15, 2010) (using Berghuis and concluding the defendant made a valid waiver because his statement was not coerced and he understood the warnings given); People v. Miguel, No. H034069, 2010 WL 2895575, at *5 (Cal. Ct. App. July 26, 2010) (relying on Berghuis to find “the prosecution met its burden of showing a valid implied waiver” where the defendant made a statement after an “understandable” Miranda warning was given); State v. Day, No. 62659-1-I, 2010 WL 2994022, at *1 (Wash. Ct. App. Aug. 2, 2010) (relying on Berghuis to conclude that the defendant “had previously been advised and his subsequent statements constituted a waiver of [his Miranda] rights”).
. See Weisselberg, supra note 4, at 1591.
. Berghuis v. Thompkins, 130 S. Ct. 2250, 2273 (2010) (Sotomayor, J., dissenting).
. Brief for Respondent, supra note 88, at 31, 33.
. See Berghuis, 130 S. Ct. at 2260; see also Kotowski, supra note 131 (“Time will tell whether [the] . . . Supreme Court is doing the right thing in moving back the clock on Miranda rights.”) (italics added) (internal quotation marks and attribution omitted).
. See Berghuis, 130 S. Ct. at 2276-77 (Sotomayor, J., dissenting) (stating that the majority’s “standard [on invocation] does not provide police with a bright line rule” because “differentiating ‘clear’ from ‘ambiguous’ statements is often a subjective inquiry”).
. See Berman, supra note 149 (stating that many of the suspects likely to be affected by Berghuis “are unsophisticated, poorly educated or mentally ill”); see also Nicole Black, Commentary, Silence Is No Longer Golden, Daily Record (Rochester, N.Y.), June 11, 2010, available at 2010 WLNR 12437838 (“U[nited] S[tates] citizens would be wise to . . . educate themselves regarding the protection of their rights during an encounter with the police. Because, according to the U.S. Supreme Court, if you don’t properly invoke a Constitutional right, you lose it.”).
. Berghuis, 130 S. Ct. at 2272 (Sotomayor, J., dissenting).
. Id. at 2278; see also Editorial, Speaking Up to Stay Silent, supra note 128 (“[T]he [C]ourt could have explicitly changed the Miranda warnings by having police officers tell suspects that they have to verbally invoke their rights.”) (italics added).
. Berghuis, 130 S. Ct. at 2276 (Sotomayor, J., dissenting).
. See id. at 2266.
. See Barnes, supra note 104 (“Thanks to television cop shows and movies, the Miranda warning[s] may be one of the [C]ourt’s best-known creations.”) (italics added).
. See Berghuis, 130 S. Ct. at 2276 (Sotomayor, J., dissenting) (“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. . . . [T]here is little reason to believe police . . . will provide such guidance.”); see also Russell L. Weaver, Miranda at Forty, 44 San Diego L. Rev. 439, 445-46 (2007). Professor Weaver states:
When [suspects] deci[de] . . . whether to waive [or invoke] . . . , the circumstances are stacked in favor of the police. . . . Although the Miranda warning provides suspects with some information, many suspects will understand little else about criminal law or the rules of evidence. For example, suspects may believe that they can talk themselves out of the situation by offering an alibi or other excuse and may not understand that they are making incriminating admissions or otherwise prejudicing their future defense. By the time suspects realize that they should have kept quiet, it may be too late. Moreover, if suspects fail to assert their rights, the police are free to utilize many of the interrogation techniques outlined in Miranda.
. See Berghuis, 130 S. Ct. at 2273 (Sotomayor, J., dissenting) (stating that the majority’s ruling will allow “police to question a suspect at length—notwithstanding his persistent refusal to answers questions—in the hope of eventually obtaining a single inculpatory response which will suffice to prove waiver of rights”); see also Weaver, supra note 191, at 446 (“[O]nce the warnings are administered, the Court is much more likely to find that any ensuing confession is voluntary and admissible.”).
. Davis v. United States, 512 U.S. 452, 468-69 (1994) (Souter, J., concurring in judgment) (second omission in original) (citations omitted) (quoting Connecticut v. Barrett, 479 U.S. 523, 528 (1987); Arizona v. Roberson, 486 U.S. 675, 688 (1988) (Kennedy, J., dissenting)).
. Berghuis, 130 S. Ct. at 2272, 2275 (Sotomayor, J., dissenting).
. See Davis, 512 U.S. at 469 (Souter, J., concurring in judgment) (citing Roberson, 486 U.S. at 688 (Kennedy, J., dissenting)).
. See supra note 191 and accompanying text.
. See, e.g., Berghuis, 130 S. Ct. at 2276 (Sotomayor, J., dissenting) (stating that “police can simply ask for clarification” when faced with an ambiguous invocation of the right to remain silent); Black, supra note 185 (suggesting that suspects should navigate Berghuis’s negative effects themselves by “tak[ing] to the Internet” or “tak[ing] a course to learn about the proper way to protect one’s constitutional rights”); Colb, supra note 176 (renewing the argument, which failed in Berghuis, that police should be required to obtain a waiver before questioning may commence); Editorial, Unspoken Rights, supra note 170 (“With these new police powers, it becomes even more critical to videotape all major[ ]crime interrogations to guard against coercion.”).
. See infra notes 200-02 and accompanying text; see also Editorial, Speaking Up to Stay Silent, supra note 128 (“[T]he [C]ourt could have explicitly changed the Miranda warnings by having police officers tell suspects that they have to verbally invoke their rights.”) (italics added); Wilkes, supra note 143, at 3 (suggesting that the Court should call for “police to tell the suspect that specific words are required to invoke the right or that anything less than the magic words are insufficient to assert the right”).
. See generally Mark A. Godsey, Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings, 90 Minn. L. Rev. 781, 783-84 (2006) (providing inspiration for the wording of the proposed addition through examples of other proposals addressing different aspects of Miranda’s evolution).
. See Miranda v. Arizona, 384 U.S. 436, 469 (1966). The opinion states:
The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system—that he is not in the presence of persons acting solely in his interest. The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators.
Id.; see also Editorial, Speaking Up to Stay Silent, supra note 128 (suggesting that changing the Miranda warnings would do the “better job of helping suspects know and understand their rights” prior to questioning).
. Davis v. United States, 512 U.S. 452, 469 (1994) (Souter, J., concurring in judgment) (quoting Miranda, 384 U.S. at 469).
. See Miranda, 384 U.S. at 469.
. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010) (“Suppression of a voluntary confession . . . would place a significant burden on society’s interest in prosecuting criminal activity.”); see also supra note 131 and accompanying text.
. See Berghuis, 130 S. Ct. at 2273 (Sotomayor, J., dissenting) (“[A] criminal law system ‘which comes to depend on the confession will, in the long run, be less reliable and more subject to abuses than a system relying on independent investigation.’” (quoting Withrow v. Williams, 507 U.S. 680, 692 (1993)) (internal quotation marks omitted).
. Id. (quoting Miranda, 384 U.S. at 444).
. See Godsey, supra note 199, at 806 (stating that the “policy interest[s]” behind Miranda “could . . . be more effectively achieved” by changing the warnings to “directly inform the suspect” on how to protect his or her rights, and of the consequences of making one decision or another).
. Withrow, 507 U.S. at 692.
. See Berghuis, 130 S. Ct. at 2273 (Sotomayor, J., dissenting); Miranda, 384 U.S. at 473-74.
. See Berghuis, 130 S. Ct. at 2270; Miranda, 384 U.S. at 475; North Carolina v. Butler, 441 U.S. 369, 372-73 (1979).
. See Berghuis, 130 S. Ct. at 2260 (majority opinion).
. See Brief for Petitioner, supra note 32, at 26-27.
. Berghuis, 130 S. Ct. at 2260, 2264.
. See id. at 2272-73 (Sotomayor, J., dissenting).
. Id. at 2278.
. Id. at 2267; see also id. at 2266 (“Both propositions mark a substantial retreat from the protection against compelled self-incrimination that Miranda . . . has long provided during custodial interrogation.”) (citation omitted).
. See supra note 78 and accompanying text.
. See supra note 132 and accompanying text.
. See Berghuis, 130 S. Ct. at 2266, 2274 (Sotomayor, J., dissenting).
. Id. at 2278; see also Weisselberg, supra note 28 (“The Court has formally transformed Miranda from a rule aimed at protecting suspects to one that protects police.”) (italics added)).
. See supra notes 169-71, 179, 181, 184, and accompanying text.
. See supra notes 200-02, 205-06, and accompanying text.