U.S. Supreme Court continues to tweak Miranda
In Berghuis v. Thompkins, the U.S. Supreme Court examined the habeas corpus appeal of a defendant who was convicted in the shooting of two individuals outside a Michigan mall
The first indelible lesson I learned in the New York State Police Academy was having an acure attention to detail. As a recruit this was drilled into me daily, it was a steady mantra of the BMO (Behavioral Modification Officer), and it was one of the best lessons of the six-month-long training. Attention to detail in all you do — whether it is on the street, in your paperwork or your personal life — is a simple but effective plan. Failure to adhere to this training principle could have serious ramifications — cases thrown out of court and culpable defendants released, serious injury or death to you, your partner or a member of the public we serve.
A reading of the recent U.S. Supreme Court decision in Berghuis v. Thompkins highlights how attention to detail kept a guilty defendant in custody and allowed the Court ample evidence to make the determination that the prosecution met its burden in establishing that a suspect waived his Fifth Amendment right against self-incrimination. In brief, Berghuis involves the habeas corpus appeal of a defendant who was convicted in the shooting of two individuals outside a Michigan mall. One victim died of multiple gunshot wounds, the other, who was also hit, survived.
Background on the Case
One of the perpetrators, Van Chester Thompkins, was convicted in the shooting. Thompkins was arrested in Ohio a year after the shooting and interviewed there by two local Michigan officers. During a three-hour interview Thompkins said very little. He gave one word answers in response to questions asked of him and for three hours was “largely silent.” Thompkins did indicate during the interview that his chair was hard, and that he did not want a peppermint offered to him by the officers. Despite his silence he did offer direct responses of “yeah,” “no,” and “I don’t know” to questions posed to him. He had been read his Miranda rights and even read out loud the fifth warning (“You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned”) at the request of Detective Helgert of the Southland PD.
At trial, Detective Helgert testified he had done this to make sure Thompkins could read and understand English. The remainder of the rights were read to Thompkins by Detective Helgert but Thompkins refused to sign off on a form indicating he understood the rights he was just read. Though there was a conflict as to whether the detective received a verbal confirmation that Thompkins understood his rights the record indicated, Detective Helgert testified at a suppression hearing that he “verbally confirmed that he [Thompkins] understood the rights listed on the form.” Later at trial the detective was unsure as to if he “orally asked him” whether he understood the Miranda rights.
Despite this, the Michigan appellate courts and the U.S. District court where the habeas petition was first heard concluded there was an understanding of those rights by Thompkins and a subsequent waiver. The Sixth Circuit Court of Appeals reversed, and held there were two separate constitutional errors at Thompkins’ trial:
1) the statement made by Thompkins was elicited in violation of Miranda v. Arizona, and
2) there was ineffective assistance of counsel due to his attorney not seeking a limiting instruction as to accomplice testimony.
On certiorari to the U.S. Supreme Court, Justice Kennedy focused largely on the first constitutional ground which was at the core of the evidence leading to Thompkins conviction, that being his statement made to the officers.
How often do we see this scenario? A suspect is read his or her Miranda rights, indicates an understanding and proceeds to talk with the police, only to subsequently allege the inculpatory statement was coerced, made up by the police, or given without the benefit of Miranda warnings? The fact that an individual refuses to sign paperwork or complete a form — or the police fail to electronically record an interview — does not equate with an involuntary, unknowing, or unlawfully obtained statement of guilt. Furthermore, the majority opinion in Berghuis is instructive as to the purpose of Miranda and the actual protections that flow from it.
It is important to remember that Miranda warnings are the result of a “prophylactic rule” created by the U.S. Supreme Court under Chief Justice Earl Warren to protect individuals in police custody from the “inherently coercive nature” of police interrogation in a police dominated environment. The protection that Miranda affords criminal defendants is the suppression at trial of any statements made as a result of custodial questioning which was not preceded by the advisement of a suspect’s various constitutional rights. The two main rights which are highlighted in the warnings provided by Miranda are the Fifth Amendment right to remain silent and the Sixth Amendment right to counsel. There is a distinction between these two rights yet the protections provided by the Fifth and Sixth Amendments often overlap.
The U.S. Supreme Court has stated in past decisions that the Constitutional protections to be afforded an individual in custody — within the context of the Fifth Amendment — are much different from those given consideration under the Fourth Amendment, especially in terms of waiver.1 In this regard, the Court has outright rejected the notion that the police must first advise an individual that he can refuse to consent to the officer voluntarily searching his property. The Court has only required a voluntary and intelligent waiver of the Fourth Amendment right to be secure against governmental search of your person or property unless the police have probable cause and, in most cases, a search warrant. But within the category of a custodial waiver of an individual’s Fifth and Sixth Amendment rights, the Court has seen fit to require a voluntary, intelligent and “knowing” waiver. Hence, with this last element comes the requirement of the advisement pursuant to Miranda of a suspect’s rights.
The Court in Berghuis was confronted with the question of not only what constitutes a waiver but also of what nature must the waiver be, must it be an explicit waiver or may it be implied from the circumstances confronting the officers at the moment? Earlier Supreme Court decisions supported Justice Kennedy’s reasoning in Berghuis that a waiver, while establishing a heavy burden on the prosecution to prove voluntariness, did not require any explicit language or actions.2 Rather, the implicit nature of a waiver, which is the “intentional relinquishment of a known right or privilege,” is dependent upon the “particular facts and circumstances” of a case.3
Here is where the details, the small facts, and circumstances of an interview, take larger shape. During a three-hour interview of Thompkins — in which he admittedly said very little — he did nonetheless communicate with the officers, no matter how trivial that communication was at the time (for instance he did not want the peppermint offered to him). Had Thompkins said he did not want to talk, then the officers would have honored that request, this is a right provided in the Fifth Amendment and made into a specific Miranda warning which can be exercised at any time during questioning by the suspect.4
It is in the details that great victories are often won. Without testimony relating to the minutiae of the interview Van Chester Thompkins might be receiving a new trial and potentially less punishment for murdering an individual.
What Does It All Mean?
So what does Berghuis add to the stream of U.S. Supreme Court cases post-Miranda, and more particularly, those recent decisions of the Roberts Court? First, we must understand that the essence of Miranda is advisement and comprehension of one’s rights.5 Once that is achieved the defendant must indicate a waiver of those rights. Often the waiver is explicit. Officers commonly ask, “Having these rights in mind do you wish to now talk with me?” An affirmative reply accomplishes a valid waiver. Another common scenario is to have a suspect sign a form acknowledging receipt of the warnings and providing a written waiver. However, we have all encountered suspects who were willing to talk but refused to sign anything, believing that by not signing, none of what they said could be used against them in court. While this is not true, it does add to the already heavy burden of the prosecution to prove its two-fold requirement in admitting into evidence a defendant’s statement:
1) that Miranda warnings were given
2) and that the defendant understood those rights
If the defendant being interviewed does not provide an explicit waiver the officer must then be able to articulate the particular circumstances of the interview that led him to believe the defendant waived his rights.
Once again, we get into the details of the interview and the quality of note-taking during the course of that interview. In one case I worked, an issue came up as to whether or not a homicide suspect was “in custody” during the period of a long interview. The attorney argued that the entire four hour un-Mirandized interview and the inculpatory statements made by his client were inadmissible. Because his client did not have a car he had to be picked up by a uniform patrol and taken to the station, which he voluntarily agreed to do. He hadn’t even been a suspect when brought in for interview, just a family member who needed to be interviewed.
But these facts get lost in the legal arguments that come down the line and the obvious portrait is always that the police are lying. The suppression issue was foreclosed when my partner and I testified that during the interview the defendant was free to go to the bathroom unescorted and had his cell phone with him throughout the interview. During the interview, the defendant received two calls, one from his mother, the other from a friend, checked text messages and e-mails he received, and indicated he was going to call a cab to take him home when he was done talking to us. He never left in a cab that night, but in handcuffs and a police ride to the county jail. Nevertheless, the testimony and notes we provided indicating the times of the calls, with whom those calls occurred, the bathroom breaks, and all the other little tidbits that were in our notes, provided the court ample proof there was no “custody” at the time of the interview.
This was admittedly an unconventional situation and one that developed rather quickly in closing the case but one which resulted in the defendant pleading to 25-to-life for a double homicide.
Though the above example did not involve the question of a rights waiver it did involve Miranda, since if there was custody a rights warning would have been required. It is similar to the scenario in Bherguis in the way it further exhibits how the words and actions of the defendant have a profound impact on a court’s determination of legal issues revolving around matters of waiver, custody, and consent.
A second point to be taken from Berghuis is that officers are not expected to be mind readers, nor are they expected to bypass opportunities to question criminal suspects. The Court once again recognized the societal “interest in prosecuting criminal activity.” It also emphasized that the nature of the warning and a suspect’s comprehension of the Miranda rights are enough to militate against the seemingly inherent coerciveness of police interrogation. Absent a specific invocation of a right to remain silent or request for an attorney from a defendant an officer should proceed to interview a Mirandized individual. As long as the officer has complied with the Miranda requirements and can support the reason behind his continued questioning of a defendant statements obtained will be admissible if the prosecution can meet its burden of production.
1 See eg., U.S. v. Drayton, 536 U.S. 194 (2002) where the Court rejected the notion that in order for a voluntary consent to search, i.e. a waiver of Fourth Amendment probable cause and warrant protection, to be valid the police must advise bus passengers of their right not to cooperate. Previously in Ohio v. Robinette, 519 U.S. 33 (1996) the Court rejected the lower Ohio Supreme Court rule that a defendant must be advised he is free to go prior to a determination that a consent to search was voluntary.
2 See eg., North Carolina v. Butler, 441 U.S. 369 (1979) in which the Court rejected the inflexible nature of the rule of explicit waiver of the right to the presence of an attorney created by the North Carolina Supreme Court. The Butler Court stated that an explicit waiver is “strong proof of the validity” but not “inevitably either necessary or sufficient” to prove waiver. The fact that waiver of a right, voluntarily and knowingly made, can be inferred in some cases from the “actions and words of the person interrogated.”
3 Johnson v. Zerbst, 304 U.S. 458 (1938)
4 If questioning is cut off by a suspect and then a subsequent incriminating statement is made the criteria to be employed by a reviewing court is whether the officers “scrupulously honored” the right to cut off questioning. Michigan v. Moseley, 423 U.S. 96 (1975)
5 Berghuis v. Thompkins, 560 U.S. __ (docket no. 08-1470) “The main purpose of Miranda is to ensure that an accused is advised of and understands the right to remain silent and the right to counsel.”