Turning Miranda Right Side Up: Post-Waiver Invocations and the Need to Update the Miranda Warnings

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. …