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Oral Arguments in Berghuis v. Thompkins

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Can conduct suggest a waiver?  That is what the Supreme Court struggled to decide in today's oral arguments in Berghuis v. Thompkins.  In Thompkins, the Court is asked to address whether a suspect has impliedly waived his right to counsel when he engages in a very limited conversation with officers and "[does] not invoke [his Miranda rights] but [does] not waive them," but confesses to the crime.  Jesse J. Holland writes for the Associated Press that during today's arguments several "Justices indicated they would let [Thompkins'] confession stand, saying suspects should tell police that they want to be silent to take advantage of that Miranda right." 

The decision may come down to how the Court addresses the question of whether officers must imply waiver from a suspect's silence, or whether a suspect must affirmatively invoke his right to remain silent during a two hour and fifteen minute interrogation.  The Court's precedents have left the answer unclear.  As Chief Justice Roberts points out early during the state's oral arguments, "The question of course is not whether we think 2 and a quarter hours under all the circumstances is -- is too long under our precedent. The question is instead whether it would be unreasonable for the State court to determine otherwise." 

CJLF's brief in Thompkins is available here.

1 Comment

The oral argument did not seem to go very well for Respondents' counsel. I think, at the end of the day, the Court is going to conclude that the Court's precedents aren't so hot on the waiver point, which makes the Michigan court decision within the range of reasonable. There may be some support on the Court to clarify this area a bit.

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