Supreme Court: Suspects Must Explicitly Invoke Miranda Rights

The Supreme Court ruled today that mere silence in response to police questioning is not sufficient to constitute an invocation of a suspect’s Miranda rights:

WASHINGTON (AP) — The Supreme Court ruled Tuesday that suspects must explicitly tell police they want to be silent to invoke Miranda protections during criminal interrogations, a decision one dissenting justice said turns defendants’ rights ”upside down.”

A right to remain silent and a right to a lawyer are the first of the Miranda rights warnings, which police recite to suspects during arrests and interrogations. But the justices said in a 5-4 decision that suspects must tell police they are going to remain silent to stop an interrogation, just as they must tell police that they want a lawyer.

The ruling comes in a case where a suspect, Van Chester Thompkins, remained mostly silent for a three-hour police interrogation before implicating himself in a Jan. 10, 2000, murder in Southfield, Mich. He appealed his conviction, saying that he invoked his Miranda right to remain silent by remaining silent.

But Justice Anthony Kennedy, writing the decision for the court’s conservatives, said that wasn’t enough.

”Thompkins did not say that he wanted to remain silent or that he did not want to talk to police,” Kennedy said. ”Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent.”

Justice Sonia Sotomayor, the court’s newest member, wrote a strongly worded dissent for the court’s liberals, saying the majority’s decision ”turns Miranda upside down.”

”Criminal suspects must now unambiguously invoke their right to remain silent — which counterintuitively, requires them to speak,” she said. ”At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.”

Of course, Miranda v. Arizona itself is extra-constitutional in some sense in that there is nothing in the Fifth Amendment that requires police to give warnings of any kind to suspects and much of the case law since Miranda was decided in 1966 has involved pairing back some of the more radical interpretations of the Court’s decision, which were seen as interfering too deeply into the ability of police to investigate crimes. The main purpose of the Miranda warning, in fact, can be seen as actually aiding police in that it ensures that confessions obtained in compliance with the law won’t be thrown out on a technicality.

Which is why I think the decision today makes sense. Merely staying silent without specifically saying “I won’t talk” or “I want a lawyer” (after having been read the Miranda warning, which occurred in this case) could mean a number of things from a suspect who thinks he can beat the police interrogator to one who wants to delay the inevitable as long as possible. Requiring police to assume that it always means that the suspect wants to invoke their Constitutional rights seems to me to be an undue hinderence on law enforcement.

As Lyle Denniston says:

The one theme underlying both parts of the opinion for the majority was that the detectives here had given Thompkins his Miranda rights, and had validly determined that he understood them.  After that, the Court made clear, the way the interrogation went — or stopped — depended upon choices that Thompkins had available to him.  Failing to explicitly invoke his right to silence, and given it up by briefly confessing, Thompkins opted to give evidence against himself, according to the ruling.

The other side of the coin, of course, is the fact that the Miranda Warning has become such a pervasive part of the culture over the past 40 years or so thanks to police and legal dramas on television and the movies, that one wonders if there really are all that many people who don’t know that they have a right to be quiet and ask for a lawyer when the police start questioning them. That’s not an argument for overturning Miranda, because I think the mandated warning still serves a useful purpose for suspects, police, and the court system, but it does argue strongly that relaxing the requirement a little bit won’t lead to the disaster that some civil liberties advocates might fear.

Majority and dissenting opinions can be found here.

FILED UNDER: Law and the Courts, Policing, Supreme Court, US Politics, , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. James Joyner says:

    Yeah, this seems like a no-brainer to me.

  2. PD Shaw says:

    Criminal suspects must now unambiguously invoke their right to remain silent — which counterintuitively, requires them to speak

    Ouch, my head hurts.

    How about this; don’t confess. Don’t say anything. Enjoy your right to remain silent, by remaining silent. If you want a lawyer and a drink of water, ask for a lawyer and a drink of water. Don’t say, “I would like a lawyer, a drink of water, and I killed the stupid *****.”

  3. JKB says:

    This bugged me about the controversy over Mirandizing the last couple of terrorist suspects by so many, even many mainstream congress members. “Why did you give them their Miranda rights,”they cried. There are no Miranda rights, there is a Miranda notification of your Constitutional rights. You always have the right to remain silent. Some people don’t have the ability even under normal conversation. When we did water boarding, we tested people’s ability under more stressful situations. If fact, they only have to read you your rights after you are in custody, you can remain silent long before that happens. Even get a lawyer, at your own expense.

    In any case, all questioning after the person, now verbally, invokes their right to remain silent does is mean that their statements can’t be used against them. They can still use the statements against others. And anyone who thinks they can game the system because they haven’t been read their rights or after they invoked are fooling themselves. Okay, criminals who’ve been interrogated dozens of times, maybe could have some success but if they were that good, they wouldn’t be in custody. Cops can talk to you all they want, they just can’t ask you questions. They will often tell you the story of what happened, hoping you’ll spontaneously correct them. Plus you must invoke, not mealy mouth around about maybe you need a lawyer.

  4. Mike says:

    they have the right to remain silent but few have the ability to do so

  5. Anderson says:

    You have the right to remain silent, provided of course you don’t actually try it.

    (H/t The Clash.)