page_title: Berghuis v. Thompkins
section_title: Sotomayor's dissent
hierarchical_section_title: Berghuis v. Thompkins / The Court's decision / Sotomayor's dissent
caption_attribution_description: Judge Sonia Sotomayor in 2009. Part of a WhiteHouse.gov slide show, "Sotomayor Bio: Picutures from Throughout Judge Sotomayor's Life" According to the May 2009 White House copyright policy, "Except where otherwise noted, third-party content on this site is licensed under a Creative Commons Attribution 3.0 License." No alternative licensing information is given for these photos, so they are assumed to be available under the Creative Commons Attribution 3.0 License.
context_page_description: Berghuis v. Thompkins, 560 U.S. 370, is a landmark decision by the United States Supreme Court in which the Court considered the position of a suspect who understands their right to remain silent under Miranda v. Arizona and is aware that they have the right to remain silent, but does not explicitly invoke or waive the right.
  The Court held that unless and until the suspect actually states that they are relying on their right, their subsequent voluntary statements may be used in court and police may continue to interact with them. The mere act of remaining silent is, on its own, insufficient to imply the suspect has invoked their rights. Furthermore, a voluntary reply even after lengthy silence can be construed as to implying a waiver.
  The Court was split, 5–4. The dissent, authored by Justice Sonia Sotomayor, argued that Miranda and other previous cases had required a claimed waiver of a constitutional right to be shown more strongly, especially in light of a lengthy interrogation with a possible "compelling influence" during which the accused had remained almost entirely silent for almost 3 hours prior to the self-incriminating statement.
context_section_description: Associate Justice Sonia Sotomayor wrote the dissenting opinion for four Justices, her first major dissenting opinion on the Court. She wrote that the case represented "a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided during custodial interrogation", and that "[S]uspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak. 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."
  The dissent noted that the government must satisfy the "high standar[d] of proof for the waiver of constitutional rights [set forth in] Johnson v. Zerbst". It cited from Miranda that:
  [A] valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained [...] the fact of lengthy interrogation... before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege.
  and that Miranda and North Carolina v. Butler both agreed that:
  [a] court 'must presume that a defendant did not waive his right[s]'; the prosecution bears a 'heavy burden' in attempting to demonstrate waiver; the fact of a 'lengthy interrogation' prior to obtaining statements is 'strong evidence' against a finding of valid waiver; 'mere silence' in response to questioning is 'not enough'; and waiver may not be presumed 'simply from the fact that a confession was in fact eventually obtained'.
  The Court had previously observed that "while the privilege [against self-incrimination] is sometimes a shelter to the guilty, [it] is often a protection to the innocent" and that "[f]or these reasons, we have observed, 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."
  Although giving "sporadic" comments during the interview, no answers had been given that touched upon the case. The Court had not previously considered "whether a suspect can invoke the right to remain silent by remaining uncooperative and nearly silent for 2 hours and 45 minutes" and the dissent considered that silence throughout a lengthy interrogation "long past the point when he could be deciding whether to respond[,] cannot reasonably be understood other than as an invocation of the right to remain silent". Butler also distinguished between a "sufficient course of conduct" and mere "inculpatory statements".
  The dissent concluded that the ruling was unnecessary in the changes it established, "flatly contradicts" Miranda and Butler, and that "[e]ven if Thompkins did not invoke that right, he is entitled to relief because Michigan did not satisfy its burden of establishing waiver".
caption: Justice Sotomayor wrote the dissenting opinion.
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