Turning Miranda right side up: post-waiver invocations and the need to update the Miranda warnings.

• Author: Hammack, Joshua I.

INTRODUCTION

In Miranda v. Arizona, (1) the Supreme Court sought to protect the constitutional privilege against compulsory self-incrimination. (2) It did so by, among other things, requiring that interrogators inform suspects of the right to remain silent before conducting a custodial interrogation. (3) In the forty-five years since Miranda was decided, the fight to remain silent has been frequently litigated, creating a body of law that is difficult to understand, often unfair to criminal suspects seeking to invoke the right, (4) and largely contrary to the Miranda Court's intention. (5) The Supreme Court's recent decision in Berghuis v. Thompkins (6) compounds these concerns in two ways. First, although the Court placed a new and demanding requirement on invocations of the right to remain silent, (7) the Court did not require officers to inform suspects of that requirement. Second, despite Miranda's "implicit promise," (8) suspects' post-waiver silence in custodial interrogations can be used against them at trial. (9) In Berghuis, the Court held that such silence is not an invocation of the right because it is not "unambiguous." (10) To remedy the current warnings' failures, (11) the Court could reexamine this stance on silence, reconsider the use of clarifying questions, or provide a more robust right to counsel in custodial interrogations. More directly, it could update the Miranda warnings so that they accurately reflect its precedents and inform suspects of the requirements placed on invocations. What is clear is that something must change to ensure that the "transcendent right" (12) Miranda sought to protect is actually--and adequately--protected.

Before proceeding to the analysis and argument, a few words about terminology may prove useful. Two terms in particular are of great importance and deserve express definition: exercise and invocation. As used throughout this Note, the "exercise" of the right to remain silent includes any time that a criminal suspect may simply remain silent without having that silence used against him. For purposes of this Note, there are just two such circumstances: Post-warning but pre-waiver silence and post-invocation silence. Regarding the former instance of silence, the suspect may remain silent--and prosecutors cannot use such silence in court--because the suspect has not yet waived his right to do so. Regarding the latter instance, a suspect may, at any time, "invoke" his right to remain silent. (13) A valid invocation is an affirmative and unambiguous statement of the desire to use the right (14) and differs from an "exercise" in one important respect-namely, an "invocation" requires that police end the interrogation. (15) Because of this requirement, no post-invocation silence can be used at trial. (16) Further, the fact of an invocation itself cannot be used against the suspect. (17) Under this scheme, to be sure that his post-waiver silence is not used against him, the suspect must "invoke" his right to remain silent.

To demonstrate the inadequacy of the current warnings, this Note uses the facts presented in Berghuis v. Thompkins, often with subfie variations. In that case, police suspected that Van Chester Thompkins, Jr. was involved in a shooting that left one man dead and another injured. (18) A year after the shooting, Thompkins was arrested and taken in for questioning. (19) He received the Miranda warnings but refused to sign a form stating that he understood them. (20) Still, officers began interrogating him. (21) For two hours and forty-five minutes, Thompkins remained "almost completely silent" in the face of continuous police questioning. (22) Finally, the following exchange occurred:

Detective: Do you believe in God?

Thompkins: Yes.

Detective: Do you pray to God?

Thompkins: Yes.

Detective: Do you pray to God to forgive you for shooting that boy down?

Thompkins: Yes. (23)

Thompkins's affirmative answers gave police the incriminating statement they sought. Those statements were presented at trial, and Thompkins was convicted of murder, assault with intent to commit murder, and other gun charges. (24)

Part I uses these facts to explain the current system of warnings, waivers, and invocations, and argues that the current process has departed from Miranda's intention by failing to provide suspects a full understanding of their rights. Part II demonstrates that the current warnings are unfair, especially to suspects who have waived their rights, because they provide no guidance regarding how to invoke one's rights. Part III presents several alternative solutions to remedy this unfairness and better protect suspects, ultimately concluding that an amendment to the warnings is the simplest and most effective solution. Finally, Part IV demonstrates how new, more complete warnings should look.

1. THE RIGHT TO REMAIN SILENT

   "[O]ur accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth." (25)

   To fully appreciate how the current warnings fall short of Miranda's noble goal, one must understand what prompted the warnings in the first place. The warnings themselves constitute the "what" of the decision, while the Court's reasoning forms the "why." Once this information is established in subsection A, subsections B and C address the Court's recent holdings regarding waivers and invocations, respectively. In light of these holdings, the warnings' content no longer satisfies their purpose.

   1. The Required Warnings and Their Purpose

      The custodial interrogation atmosphere carries a "badge of intimidation ... destructive to human dignity" (26) and "trades on the weakness of individuals." (27) For these reasons, the Miranda Court believed that a criminal suspect had to receive "full warnings of constitutional rights" (28) to ensure that his statements were "truly the product of free choice." (29) As such, the Court required police to provide four specific warnings, prior to any questioning, to an individual in custody:

      [T]hat 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. (30) These four warnings have become the "primary protection afforded [to] suspects" in custodial interrogations. (31) Together, they form the "what" of the Miranda Court's decision. Perhaps the more important consideration, however, is the "why." A return to the "why" of the Miranda decision is appropriate for two reasons: (1) if the warnings have been rendered ineffective, their underlying purpose might be grounds to update the warnings or otherwise alter our method of protection, and (2) the warnings' justification emphasizes what they protect--the "transcendent right" (32) to remain silent. In short, the warnings were meant to provide the foundational rules of custodial interrogations and to ensure that suspects and interrogators would operate on a "level playing field." (33) The warnings serve these purposes in a variety of ways.

      First, the warnings protect suspects by serving an informative function; they increase a suspect's awareness of his constitutional rights. The Miranda Court formulated the warnings to "adequately and effectively" apprise a suspect of his right to remain silent (34) and to "assure a continuous opportunity to exercise it." (35) Through this apprisal and assurance, the warnings protect the suspect "from being compelled to incriminate himself in any manner." (36) Their recitation "dispel[s] whatever coercion is inherent in the interrogation process" by providing a suspect with a "full comprehension of the fights to remain silent and request an attorney." (37) Thus, the warnings' primary function is informative. (38) The Miranda Court sought to combat coercion specifically by increasing suspects' knowledge. Moreover, the Court believed that this knowledge would empower suspects to exercise their rights if they desired to do so.

      Secondly, the Miranda warnings empower suspects to assert control in custodial interrogations by requiring the interrogator--the more powerful party--to remind the suspect of the power he retains (39) (i.e., the power to refuse to answer questions or to cut off questioning once it has begun). The warnings are thus a verbal reminder--to both suspects and interrogators--that constitutional rights are in play, and that those rights cannot be ignored or trampled. (40) In this regard, the warnings serve a dual function: they reassure the suspect that his rights must be honored if he chooses to exercise them, and they remind police that, no matter how much they believe they need a confession, they may not obtain it by whatever means (i.e. they must at all times operate within the bounds of the Constitution).

      Finally, the warnings are significant for their effect on criminal prosecutions. They effectively "increase the probability that a person's response to police questioning will be intelligent and voluntary." (41) Thus, the recitation of the warnings, when coupled with a valid waiver of rights, "creates a presumption of voluntariness and admissibility." (42) Quite simply, when a suspect is informed of and fully understands his rights, his choice to answer questions may confidently be called "voluntary"; any fear of coercion is allayed because the suspect knew he had the power not to answer. (43) From this perspective, the warnings are "intended to dispel enough compulsion to allow a suspect to reflect on whether to talk or remain silent," (44) and to ensure that whatever the suspect says may be used at his trial. (45)

      In Berghuis, all parties agreed that Thompkins received the appropriate warnings. (46) Before the interrogation, officers allowed him...