American criminal law seems to discuss “a course of conduct” whenever it needs to include facts that damage the defense. It was only a matter of time that one action during one encounter with one law enforcement official would become a “course of conduct.” The United States Supreme Court found as much last year when it decided the Miranda case of Berghuis v. Thompkins (2010), 130 S.Ct. 2250 in a 5-4 vote. At its heart, Berghuis was deciding whether suppression was required where a suspect made a statement but neither invoked nor waived his Miranda rights. The Miranda question accepted by the Supreme Court was specifically: Whether the Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them. It was the “did not invoke them but did not waive them” that drove the opinion and really makes the case so significant.
Thompkins was arrested as a suspect in a murder. He was Mirandized, but declined to sign the form and there was conflicting evidence as to whether he verbally confirmed he understood his rights. Id. at 2256. Sadly, the Court seems to overlook that the officer gave conflicting testimony during the suppression hearing testifying that the defendant read the rights back to him, but at trial testifying that he did not recall whether he had asked him to verbally acknowledge whether he understood his rights. On evidence so critical, the officers changing position received only a parenthetical – literally it was only a parenthetical in the opinion.
For two hours and 45 minutes of the interrogation, Thompkins remained silent and refused to answer any question, but never verbally invoked his right to remain silent. Critics will obviously argue that remaining silent would be sufficient evidence of invoking the right to remain silent. After two hours and 45 minutes of silence, in an 8 by 10 room and subject to repeated questions by the investigators, he answered this question, “do you believe in God?” Then he answered, “do you pray to God?” Then, of course, he answered “yes” to “do you pray to God to forgive you for shooting that boy down?” The conviction soon followed.
The opinion does reference the acquittal of a co-defendant and some other conflicting testimony about co-defendants. This is ultimately the danger of every criminal case. If it was inappropriate as a matter of law to allow into evidence the statements recovered after nearly three hours of interrogation and this evidence led to a wrongful conviction, that is the real tragedy everyone in the criminal justice system should hope to avoid.
The United States Supreme Court analyzed whether Thompkins had invoked his right to remain silent. The Court acknowledges that for the two hours and 45 minute interrogation he remained silent. This might sound like a “course of conduct” to the lay reader. That said, he ultimately did answer those three questions about his faith. Instead of relying on the two hour and 45 minute course of silence to find a course of conduct that invoked the right to remain silent, the Court found the answers to the three questions as a “course of conduct” which would waive the right to remain silent. The Court found “[t]he fact that Thompkins made a statement about three hours after receiving his a Miranda warning does not overcome the fact the he engaged in a course of conduct indicating waiver.” Id. at 2263.
The Court itself acknowledged the plain language of Miranda which directs that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the facts that a confession was in fact eventually obtained.” Id. at 2261, citing Miranda v. Arizona (1966), 384 U.S. 436, 475. The Court went on to also emphasize the settled case law that from Miranda that the “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently” made a waiver. Berghuis at 2261, citing Miranda at 475. Despite this settled law, the Court found a waiver after three hours of silence.
Now, three simple “yes” answers after three hours of silence under interrogation can amount to a “course of conduct” which indicates the suspect’s intelligent decision to waive his Miranda rights. The Court rejected the dissent’s position that three hours of silence was a course of conduct evidencing that the suspect was invoking his right remain silent. As the dissent described it, a defendant “who wishes to guard his right to remain silent against such a finding of “waiver” must, counterintuitively, speak[.]”
No comments:
Post a Comment