(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BERGHUIS, WARDEN v. THOMPKINS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 08–1470. Argued March 1, 2010—Decided June 1, 2010
After advising respondent Thompkins of his rights, in full compliance
with Miranda v. Arizona, 384 U. S. 436, Detective Helgert and an
other Michigan officer interrogated him about a shooting in which
one victim died. At no point did Thompkins say that he wanted to
remain silent, that he did not want to talk with the police, or that he
wanted an attorney. He was largely silent during the 3-hour interro
gation, but near the end, he answered “yes” when asked if he prayed
to God to forgive him for the shooting. He moved to suppress his
statements, claiming that he had invoked his Fifth Amendment right
to remain silent, that he had not waived that right, and that his in
culpatory statements were involuntary. The trial court denied the
motion. At trial on first-degree murder and other charges, the prose
cution called Eric Purifoy, who drove the van in which Thompkins
and a third accomplice were riding at the time of the shooting, and
who had been convicted of firearm offenses but acquitted of murder
and assault. Thompkins’ defense was that Purifoy was the shooter.
Purifoy testified that he did not see who fired the shots. During clos
ing arguments, the prosecution suggested that Purifoy lied about not
seeing the shooter and pondered whether Purifoy’s jury had made the
right decision. Defense counsel did not ask the court to instruct the
jury that it could consider evidence of the outcome of Purifoy’s trial
only to assess his credibility, not to establish Thompkins’ guilt. The
jury found Thompkins guilty, and he was sentenced to life in prison
without parole. In denying his motion for a new trial, the trial court
rejected as nonprejudicial his ineffective-assistance-of-counsel claim
for failure to request a limiting instruction about the outcome of Puri
foy’s trial. On appeal, the Michigan Court of Appeals rejected both
Thompkins’ Miranda and his ineffective-assistance claims. The Fed
2 BERGHUIS v. THOMPKINS
Syllabus
eral District Court denied his subsequent habeas request, reasoning
that Thompkins did not invoke his right to remain silent and was not
coerced into making statements during the interrogation, and that it
was not unreasonable, for purposes of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), see 28 U. S. C. §2254(d)(1), for
the State Court of Appeals to determine that he had waived his right
to remain silent. The Sixth Circuit reversed, holding that the state
court was unreasonable in finding an implied waiver of Thompkins’
right to remain silent and in rejecting his ineffective-assistance-of
counsel claim.
Held:
1. The state court’s decision rejecting Thompkins’ Miranda claim
was correct under de novo review and therefore necessarily reason
able under AEDPA’s more deferential standard of review. Pp. 7–17.
(a) Thompkins’ silence during the interrogation did not invoke
his right to remain silent. A suspect’s Miranda right to counsel must
be invoked “unambiguously.” Davis v. United States, 512 U. S. 452,
459. If the accused makes an “ambiguous or equivocal” statement or
no statement, the police are not required to end the interrogation,
ibid., or ask questions to clarify the accused’s intent, id., at 461–462.
There is no principled reason to adopt different standards for deter
mining when an accused has invoked the Miranda right to remain si
lent and the Miranda right to counsel at issue in Davis. Both protect
the privilege against compulsory self-incrimination by requiring an
interrogation to cease when either right is invoked. The unambigu
ous invocation requirement results in an objective inquiry that
“avoid[s] difficulties of proof and . . . provide[s] guidance to officers”
on how to proceed in the face of ambiguity. Davis, supra, at 458–459.
Had Thompkins said that he wanted to remain silent or that he did
not want to talk, he would have invoked his right to end the question
ing. He did neither. Pp. 8–10.
(b) Thompkins waived his right to remain silent when he know
ingly and voluntarily made a statement to police. A waiver must be
“the product of a free and deliberate choice rather than intimidation,
coercion, or deception” and “made with a full awareness of both the
nature of the right being abandoned and the consequences of the de
cision to abandon it.” Moran v. Burbine, 475 U. S. 412, 421. Such a
waiver may be “implied” through a “defendant’s silence, coupled with
an understanding of his rights and a course of conduct indicating
waiver.” North Carolina v. Butler, 441 U. S. 369, 373. If the State
establishes that a Miranda warning was given and that it was un
derstood by the accused, an accused’s uncoerced statement estab
lishes an implied waiver. The record here shows that Thompkins
waived his right to remain silent. First, the lack of any contention
Cite as: 560 U. S. ____ (2010) 3
Syllabus
that he did not understand his rights indicates that he knew what he
gave up when he spoke. See Burbine, supra, at 421. Second, his an
swer to the question about God is a “course of conduct indicating
waiver” of that right. Butler, supra, at 373. Had he wanted to re
main silent, he could have said nothing in response or unambigu
ously invoked his Miranda rights, ending the interrogation. That he
made a statement nearly three hours after receiving a Miranda
warning does not overcome the fact that he engaged in a course of
conduct indicating waiver. Third, there is no evidence that his
statement was coerced. See Burbine, supra, at 421. He does not
claim that police threatened or injured him or that he was fearful.
The interrogation took place in a standard-sized room in the middle
of the day, and there is no authority for the proposition that a 3-hour
interrogation is inherently coercive. Cf. Colorado v. Connelly, 479
U. S. 157, 163–164, n. 1. The fact that the question referred to reli
gious beliefs also does not render his statement involuntary. Id., at
170. Pp. 10–15.
(c) Thompkins argues that, even if his answer to Helgert could
constitute a waiver of his right to remain silent, the police were not
allowed to question him until they first obtained a waiver. However,
a rule requiring a waiver at the outset would be inconsistent with
Butler’s holding that courts can infer a waiver “from the actions and
words of the person interrogated.” 441 U. S., at 373. Any waiver, ex
press or implied, may be contradicted by an invocation at any time,
terminating further interrogation. When the suspect knows that
Miranda rights can be invoked at any time, he or she can reassess his
or her immediate and long-term interests as the interrogation pro
gresses. After giving a Miranda warning, police may interrogate a
suspect who has neither invoked nor waived Miranda rights. Thus,
the police were not required to obtain a waiver of Thompkins’
Miranda rights before interrogating him. Pp. 15–17.
2. Even if his counsel provided ineffective assistance, Thompkins
cannot show prejudice under a de novo review of this record. To es
tablish ineffective assistance, a defendant “must show both deficient
performance and prejudice.” Knowles v. Mirzayance, 556 U. S. ___,
___. To establish prejudice, a “defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different,” Strickland v.
Washington, 466 U. S. 668, 694, considering “the totality of the evi
dence before the judge or jury,” id., at 695. Here, the Sixth Circuit
did not account for the other evidence presented against Thompkins.
The state court rejected his claim that he was prejudiced by evidence
of Purifoy’s earlier conviction. Even if it used an incorrect legal stan
dard, this Court need not determine whether AEDPA’s deferential
4 BERGHUIS v. THOMPKINS
Syllabus
standard of review applies here, since Thompkins cannot show preju
dice under de novo review, a more favorable standard for him. De
novo review can be used in this case because a habeas petitioner will
not be entitled to relief if his or her claim is rejected on de novo re
view. See §2254(a). Assuming that failure to request a limiting in
struction here was deficient representation, Thompkins cannot show
prejudice, for the record shows that it was not reasonably likely that
such an instruction would have made any difference in light of other
evidence of guilt. The surviving victim identified Thompkins as the
shooter, and the identification was supported by a surveillance cam
era photograph. A friend testified that Thompkins confessed to him,
and the details of that confession were corroborated by evidence that
Thompkins stripped and abandoned the van after the shooting. The
jury, moreover, was capable of assessing Purifoy’s credibility, as it
was instructed to do. Pp. 17–19.
547 F. 3d 572, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. SOTOMAYOR, J., filed
a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ.,
joined.
Cite as: 560 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1470
_________________
MARY BERGHUIS, WARDEN, PETITIONER v. VAN
CHESTER THOMPKINS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 1, 2010]
JUSTICE KENNEDY delivered the opinion of the Court.
The United States Court of Appeals for the Sixth Cir
cuit, in a habeas corpus proceeding challenging a Michi
gan conviction for first-degree murder and certain other
offenses, ruled that there had been two separate constitu
tional errors in the trial that led to the jury’s guilty ver
dict. First, the Court of Appeals determined that a state
ment by the accused, relied on at trial by the prosecution,
had been elicited in violation of Miranda v. Arizona, 384
U. S. 436 (1966). Second, it found that failure to ask for
an instruction relating to testimony from an accomplice
was ineffective assistance by defense counsel. See Strick
land v. Washington, 466 U. S. 668 (1984). Both of these
contentions had been rejected in Michigan courts and in
the habeas corpus proceedings before the United States
District Court. Certiorari was granted to review the deci
sion by the Court of Appeals on both points. The warden
of a Michigan correctional facility is the petitioner here,
and Van Chester Thompkins, who was convicted, is the
respondent.
2 BERGHUIS v. THOMPKINS
Opinion of the Court
I
A
On January 10, 2000, a shooting occurred outside a mall
in Southfield, Michigan. Among the victims was Samuel
Morris, who died from multiple gunshot wounds. The
other victim, Frederick France, recovered from his injuries
and later testified. Thompkins, who was a suspect, fled.
About one year later he was found in Ohio and arrested
there.
Two Southfield police officers traveled to Ohio to inter
rogate Thompkins, then awaiting transfer to Michigan.
The interrogation began around 1:30 p.m. and lasted
about three hours. The interrogation was conducted in a
room that was 8 by 10 feet, and Thompkins sat in a chair
that resembled a school desk (it had an arm on it that
swings around to provide a surface to write on). App.
144a–145a. At the beginning of the interrogation, one of
the officers, Detective Helgert, presented Thompkins with
a form derived from the Miranda rule. It stated:
“NOTIFICATION OF CONSTITUTIONAL RIGHTS
AND STATEMENT
“1. You have the right to remain silent.
“2. Anything you say can and will be used against
you in a court of law.
“3. You have a right to talk to a lawyer before an
swering any questions and you have the right to have
a lawyer present with you while you are answering
any questions.
“4. If you cannot afford to hire a lawyer, one will be
appointed to represent you before any questioning, if
you wish one.
“5. You have the right to decide at any time before or
during questioning to use your right to remain silent
and your right to talk with a lawyer while you are be
ing questioned.” Brief for Petitioner 60 (some capi
Cite as: 560 U. S. ____ (2010) 3
Opinion of the Court
talization omitted).
Helgert asked Thompkins to read the fifth warning out
loud. App. 8a. Thompkins complied. Helgert later said
this was to ensure that Thompkins could read, and Hel
gert concluded that Thompkins understood English. Id.,
at 9a. Helgert then read the other four Miranda warnings
out loud and asked Thompkins to sign the form to demon
strate that he understood his rights. App. 8a–9a. Thomp
kins declined to sign the form. The record contains con
flicting evidence about whether Thompkins then verbally
confirmed that he understood the rights listed on the form.
Compare id., at 9a (at a suppression hearing, Helgert
testified that Thompkins verbally confirmed that he un
derstood his rights), with id., at 148a (at trial, Helgert
stated, “I don’t know that I orally asked him” whether
Thompkins understood his rights).
Officers began an interrogation. At no point during the
interrogation did Thompkins say that he wanted to re
main silent, that he did not want to talk with the police, or
that he wanted an attorney. Id., at 10a. Thompkins was
“[l]argely” silent during the interrogation, which lasted
about three hours. Id., at 19a. He did give a few limited
verbal responses, however, such as “yeah,” “no,” or “I don’t
know.” And on occasion he communicated by nodding his
head. Id., at 23a. Thompkins also said that he “didn’t
want a peppermint” that was offered to him by the police
and that the chair he was “sitting in was hard.” Id., at
152a.
About 2 hours and 45 minutes into the interrogation,
Helgert asked Thompkins, “Do you believe in God?” Id., at
11a, 153a. Thompkins made eye contact with Helgert and
said “Yes,” as his eyes “well[ed] up with tears.” Id., at 11a.
Helgert asked, “Do you pray to God?” Thompkins said
“Yes.” Id., at 11a, 153a. Helgert asked, “Do you pray to
God to forgive you for shooting that boy down?” Id., at
4 BERGHUIS v. THOMPKINS
Opinion of the Court
153a. Thompkins answered “Yes” and looked away. Ibid.
Thompkins refused to make a written confession, and the
interrogation ended about 15 minutes later. Id., at 11a.
Thompkins was charged with first-degree murder,
assault with intent to commit murder, and certain fire
arms-related offenses. He moved to suppress the state
ments made during the interrogation. He argued that he
had invoked his Fifth Amendment right to remain silent,
requiring police to end the interrogation at once, see
Michigan v. Mosley, 423 U. S. 96, 103 (1975) (citing
Miranda, 384 U. S., at 474), that he had not waived his
right to remain silent, and that his inculpatory statements
were involuntary. The trial court denied the motion.
At trial, the prosecution’s theory was that Thompkins
shot the victims from the passenger seat of a van driven
by Eric Purifoy. Purifoy testified that he had been driving
the van and that Thompkins was in the passenger seat
while another man, one Myzell Woodward, was in the
back. The defense strategy was to pin the blame on Puri
foy. Purifoy testified he did not see who fired the weapon
because the van was stopped and he was bending over
near the floor when shots were fired. Purifoy explained
that, just after the shooting, Thompkins, holding a pistol,
told Purifoy, “What the hell you doing? Pull off.” Purifoy
then drove away from the scene. App. 170a.
So that the Thompkins jury could assess Purifoy’s credi
bility and knowledge, the prosecution elicited testimony
from Purifoy that he had been tried earlier for the shoot
ing under an aiding-and-abetting theory. Purifoy and
Detective Helgert testified that a jury acquitted him of the
murder and assault charges, convicted him of carrying a
concealed weapon in a motor vehicle, and hung on two
other firearms offenses to which he later pleaded guilty.
At Purifoy’s trial, the prosecution had argued that Purifoy
was the driver and Thompkins was the shooter. This was
consistent with the prosecution’s argument at Thomp
Cite as: 560 U. S. ____ (2010) 5
Opinion of the Court
kins’s trial.
After Purifoy’s trial had ended—but before Thompkins’s
trial began—Purifoy sent Thompkins some letters. The
letters expressed Purifoy’s disappointment that Thomp
kins’s family thought Purifoy was a “snitch” and a “rat.”
Id., at 179a–180a. In one letter Purifoy offered to send a
copy of his trial transcript to Thompkins as proof that
Purifoy did not place the blame on Thompkins for the
shooting. Id., at 180a. The letters also contained state
ments by Purifoy that claimed they were both innocent.
Id., at 178a–179a. At Thompkins’s trial, the prosecution
suggested that one of Purifoy’s letters appeared to give
Thompkins a trial strategy. It was, the prosecution sug
gested, that Woodward shot the victims, allowing Purifoy
and Thompkins to say they dropped to the floor when the
shooting started. Id., at 187a–189a.
During closing arguments, the prosecution suggested
that Purifoy lied when he testified that he did not see
Thompkins shoot the victims:
“Did Eric Purifoy’s Jury make the right decision? I’m
not here to judge that. You are not bound by what his
Jury found. Take his testimony for what it was, [a]
twisted attempt to help not just an acquaintance but
his tight buddy.” Id., at 202a.
Defense counsel did not object. Defense counsel also did
not ask for an instruction informing the jury that it could
consider evidence of the outcome of Purifoy’s trial only to
assess Purifoy’s credibility, not to establish Thompkins’s
guilt.
The jury found Thompkins guilty on all counts. He was
sentenced to life in prison without parole.
B
The trial court denied a motion for new trial filed by
Thompkins’s appellate counsel. The trial court rejected
6 BERGHUIS v. THOMPKINS
Opinion of the Court
the claim of ineffective assistance of trial counsel for fail
ure to ask for a limiting instruction regarding the outcome
of Purifoy’s trial, reasoning that this did not prejudice
Thompkins. Id., at 236a.
Thompkins appealed this ruling, along with the trial
court’s refusal to suppress his pretrial statements under
Miranda. The Michigan Court of Appeals rejected the
Miranda claim, ruling that Thompkins had not invoked
his right to remain silent and had waived it. It also re
jected the ineffective-assistance-of-counsel claim, finding
that Thompkins failed to show that evidence of Purifoy’s
conviction for firearms offenses resulted in prejudice. App.
to Pet. for Cert. 74a–82a. The Michigan Supreme Court
denied discretionary review. 471 Mich. 866, 683 N. W. 2d
676 (2004) (table).
Thompkins filed a petition for a writ of habeas corpus in
the United States District Court for the Eastern District of
Michigan. The District Court rejected Thompkins’s
Miranda and ineffective-assistance claims. App. to Pet.
for Cert. 39a–72a. It noted that, under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), a fed
eral court cannot grant a petition for a writ of habeas
corpus unless the state court’s adjudication of the merits
was “contrary to, or involved an unreasonable application
of, clearly established Federal law.” 28 U. S. C.
§2254(d)(1). The District Court reasoned that Thompkins
did not invoke his right to remain silent and was not
coerced into making statements during the interrogation.
It held further that the Michigan Court of Appeals was not
unreasonable in determining that Thompkins had waived
his right to remain silent.
The United States Court of Appeals for the Sixth Circuit
reversed, ruling for Thompkins on both his Miranda and
ineffective-assistance-of-counsel claims. 547 F. 3d 572
(2008). The Court of Appeals ruled that the state court, in
rejecting Thompkins’s Miranda claim, unreasonably ap
Cite as: 560 U. S. ____ (2010) 7
Opinion of the Court
plied clearly established federal law and based its decision
on an unreasonable determination of the facts. See 28
U. S. C. §2254(d). The Court of Appeals acknowledged
that a waiver of the right to remain silent need not be
express, as it can be “ ‘inferred from the actions and words
of the person interrogated.’ ” 547 F. 3d, at 582 (quoting
North Carolina v. Butler, 441 U. S. 369, 373 (1979)). The
panel held, nevertheless, that the state court was unrea
sonable in finding an implied waiver in the circumstances
here. The Court of Appeals found that the state court
unreasonably determined the facts because “the evidence
demonstrates that Thompkins was silent for two hours
and forty-five minutes.” 547 F. 3d, at 586. According to
the Court of Appeals, Thompkins’s “persistent silence for
nearly three hours in response to questioning and re
peated invitations to tell his side of the story offered a
clear and unequivocal message to the officers: Thompkins
did not wish to waive his rights.” Id., at 588.
The Court of Appeals next determined that the state
court unreasonably applied clearly established federal law
by rejecting Thompkins’s ineffective-assistance-of-counsel
claim based on counsel’s failure to ask for a limiting in
struction regarding Purifoy’s acquittal. The Court of
Appeals asserted that because Thompkins’s central strat
egy was to pin the blame on Purifoy, there was a reason
able probability that the result of Thompkins’s trial would
have been different if there had been a limiting instruction
regarding Purifoy’s acquittal.
We granted certiorari. 557 U. S. ___ (2009).
II
Under AEDPA, a federal court may not grant a habeas
corpus application “with respect to any claim that was
adjudicated on the merits in State court proceedings,” 28
U. S. C. §2254(d), unless the state court’s decision “was
contrary to, or involved an unreasonable application of,
8 BERGHUIS v. THOMPKINS
Opinion of the Court
clearly established Federal law, as determined by the
Supreme Court of the United States,” §2254(d)(1), or “was
based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceed
ing,” §2254(d)(2). See Knowles v. Mirzayance, 556 U. S.
___, ___ (2009) (slip op., at 1). The relevant state-court
decision here is the Michigan Court of Appeals’ decision
affirming Thompkins’s conviction and rejecting his
Miranda and ineffective-assistance-of-counsel claims on
the merits.
III
The Miranda Court formulated a warning that must be
given to suspects before they can be subjected to custodial
interrogation. The substance of the warning still must be
given to suspects today. A suspect in custody must be
advised as follows:
“He must be warned prior to any questioning that he
has the right to remain silent, that anything he says
can be used against him in a court of law, that he has
the right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires.” 384
U. S., at 479.
All concede that the warning given in this case was in full
compliance with these requirements. The dispute centers
on the response—or nonresponse—from the suspect.
A
Thompkins makes various arguments that his answers
to questions from the detectives were inadmissible. He
first contends that he “invoke[d] his privilege” to remain
silent by not saying anything for a sufficient period of
time, so the interrogation should have “cease[d]” before he
made his inculpatory statements. Id., at 474; see Mosley,
423 U. S., at 103 (police must “ ‘scrupulously hono[r]’ ” this
Cite as: 560 U. S. ____ (2010) 9
Opinion of the Court
“critical safeguard” when the accused invokes his or her
“ ‘right to cut off questioning’ ” (quoting Miranda, supra, at
474, 479)).
This argument is unpersuasive. In the context of invok
ing the Miranda right to counsel, the Court in Davis v.
United States, 512 U. S. 452, 459 (1994), held that a sus
pect must do so “unambiguously.” If an accused makes a
statement concerning the right to counsel “that is ambigu
ous or equivocal” or makes no statement, the police are not
required to end the interrogation, ibid., or ask questions to
clarify whether the accused wants to invoke his or her
Miranda rights, 512 U. S., at 461–462.
The Court has not yet stated whether an invocation of
the right to remain silent can be ambiguous or equivocal,
but there is no principled reason to adopt different stan
dards for determining when an accused has invoked the
Miranda right to remain silent and the Miranda right to
counsel at issue in Davis. See, e.g., Solem v. Stumes, 465
U. S. 638, 648 (1984) (“[M]uch of the logic and language of
[Mosley],” which discussed the Miranda right to remain
silent, “could be applied to the invocation of the [Miranda
right to counsel]”). Both protect the privilege against
compulsory self-incrimination, Miranda, supra, at 467–
473, by requiring an interrogation to cease when either
right is invoked, Mosley, supra, at 103 (citing Miranda,
supra, at 474); Fare v. Michael C., 442 U. S. 707, 719
(1979).
There is good reason to require an accused who wants to
invoke his or her right to remain silent to do so unambigu
ously. A requirement of an unambiguous invocation of
Miranda rights results in an objective inquiry that
“avoid[s] difficulties of proof and . . . provide[s] guidance to
officers” on how to proceed in the face of ambiguity. Davis,
512 U. S., at 458–459. If an ambiguous act, omission, or
statement could require police to end the interrogation,
police would be required to make difficult decisions about
10 BERGHUIS v. THOMPKINS
Opinion of the Court
an accused’s unclear intent and face the consequence of
suppression “if they guess wrong.” Id., at 461. Suppres
sion of a voluntary confession in these circumstances
would place a significant burden on society’s interest in
prosecuting criminal activity. See id., at 459–461; Moran
v. Burbine, 475 U. S. 412, 427 (1986). Treating an am
biguous or equivocal act, omission, or statement as an
invocation of Miranda rights “might add marginally to
Miranda’s goal of dispelling the compulsion inherent in
custodial interrogation.” Burbine, 475 U. S., at 425. But
“as Miranda holds, full comprehension of the rights to
remain silent and request an attorney are sufficient to
dispel whatever coercion is inherent in the interrogation
process.” Id., at 427; see Davis, supra, at 460.
Thompkins did not say that he wanted to remain silent
or that he did not want to talk with the police. Had he
made either of these simple, unambiguous statements, he
would have invoked his “ ‘right to cut off questioning.’ ”
Mosley, supra, at 103 (quoting Miranda, supra, at 474).
Here he did neither, so he did not invoke his right to re
main silent.
B
We next consider whether Thompkins waived his right
to remain silent. Even absent the accused’s invocation of
the right to remain silent, the accused’s statement during
a custodial interrogation is inadmissible at trial unless the
prosecution can establish that the accused “in fact know
ingly and voluntarily waived [Miranda] rights” when
making the statement. Butler, 441 U. S., at 373. The
waiver inquiry “has two distinct dimensions”: waiver must
be “voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion,
or deception,” and “made with a full awareness of both the
nature of the right being abandoned and the consequences
of the decision to abandon it.” Burbine, supra, at 421.
Cite as: 560 U. S. ____ (2010) 11
Opinion of the Court
Some language in Miranda could be read to indicate
that waivers are difficult to establish absent an explicit
written waiver or a formal, express oral statement.
Miranda said “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 eventu
ally obtained.” 384 U. S., at 475; see id., at 470 (“No effec
tive waiver . . . can be recognized unless specifically made
after the [Miranda] warnings . . . have been given”). In
addition, the Miranda Court stated that “a heavy burden
rests on the government to demonstrate that the defen
dant knowingly and intelligently waived his privilege
against self-incrimination and his right to retained or
appointed counsel.” Id., at 475.
The course of decisions since Miranda, informed by the
application of Miranda warnings in the whole course of
law enforcement, demonstrates that waivers can be estab
lished even absent formal or express statements of waiver
that would be expected in, say, a judicial hearing to de
termine if a guilty plea has been properly entered. Cf.
Fed. Rule Crim. Proc. 11. The main purpose of Miranda is
to ensure that an accused is advised of and understands
the right to remain silent and the right to counsel. See
Davis, supra, at 460; Burbine, supra, at 427. Thus, “[i]f
anything, our subsequent cases have reduced the impact
of the Miranda rule on legitimate law enforcement while
reaffirming the decision’s core ruling that unwarned
statements may not be used as evidence in the prosecu
tion’s case in chief.” Dickerson v. United States, 530 U. S.
428, 443–444 (2000).
One of the first cases to decide the meaning and import
of Miranda with respect to the question of waiver was
North Carolina v. Butler. The Butler Court, after discuss
ing some of the problems created by the language in
Miranda, established certain important propositions.
Butler interpreted the Miranda language concerning the
12 BERGHUIS v. THOMPKINS
Opinion of the Court
“heavy burden” to show waiver, 384 U. S., at 475, in ac
cord with usual principles of determining waiver, which
can include waiver implied from all the circumstances.
See Butler, supra, at 373, 376. And in a later case, the
Court stated that this “heavy burden” is not more than the
burden to establish waiver by a preponderance of the
evidence. Colorado v. Connelly, 479 U. S. 157, 168 (1986).
The prosecution therefore does not need to show that a
waiver of Miranda rights was express. An “implicit
waiver” of the “right to remain silent” is sufficient to admit
a suspect’s statement into evidence. Butler, supra, at 376.
Butler made clear that a waiver of Miranda rights may be
implied through “the defendant’s silence, coupled with an
understanding of his rights and a course of conduct indi
cating waiver.” 441 U. S., at 373. The Court in Butler
therefore “retreated” from the “language and tenor of the
Miranda opinion,” which “suggested that the Court would
require that a waiver . . . be ‘specifically made.’ ” Con
necticut v. Barrett, 479 U. S. 523, 531–532 (1987) (Bren
nan, J., concurring in judgment).
If the State establishes that a Miranda warning was
given and the accused made an uncoerced statement, this
showing, standing alone, is insufficient to demonstrate “a
valid waiver” of Miranda rights. Miranda, supra, at 475.
The prosecution must make the additional showing that
the accused understood these rights. See Colorado v.
Spring, 479 U. S. 564, 573–575 (1987); Barrett, supra, at
530; Burbine, supra, at 421–422. Cf. Tague v. Louisiana,
444 U. S. 469, 469, 471 (1980) (per curiam) (no evidence
that accused understood his Miranda rights); Carnley v.
Cochran, 369 U. S. 506, 516 (1962) (government could not
show that accused “understandingly” waived his right to
counsel in light of “silent record”). Where the prosecution
shows that a Miranda warning was given and that it was
understood by the accused, an accused’s uncoerced state
ment establishes an implied waiver of the right to remain
Cite as: 560 U. S. ____ (2010) 13
Opinion of the Court
silent.
Although Miranda imposes on the police a rule that is
both formalistic and practical when it prevents them from
interrogating suspects without first providing them with a
Miranda warning, see Burbine, 475 U. S., at 427, it does
not impose a formalistic waiver procedure that a suspect
must follow to relinquish those rights. As a general
proposition, the law can presume that an individual who,
with a full understanding of his or her rights, acts in a
manner inconsistent with their exercise has made a delib
erate choice to relinquish the protection those rights af
ford. See, e.g., Butler, supra, at 372–376; Connelly, supra,
at 169–170 (“There is obviously no reason to require more
in the way of a ‘voluntariness’ inquiry in the Miranda
waiver context than in the [due process] confession con
text”). The Court’s cases have recognized that a waiver of
Miranda rights need only meet the standard of Johnson v.
Zerbst, 304 U. S. 458, 464 (1938). See Butler, supra, at
374–375; Miranda, supra, at 475–476 (applying Zerbst
standard of intentional relinquishment of a known right).
As Butler recognized, 441 U. S., at 375–376, Miranda
rights can therefore be waived through means less formal
than a typical waiver on the record in a courtroom, cf. Fed.
Rule Crim. Proc. 11, given the practical constraints and
necessities of interrogation and the fact that Miranda’s
main protection lies in advising defendants of their rights,
see Davis, 512 U. S., at 460; Burbine, 475 U. S., at 427.
The record in this case shows that Thompkins waived
his right to remain silent. There is no basis in this case to
conclude that he did not understand his rights; and on
these facts it follows that he chose not to invoke or rely on
those rights when he did speak. First, there is no conten
tion that Thompkins did not understand his rights; and
from this it follows that he knew what he gave up when he
spoke. See id., at 421. There was more than enough
evidence in the record to conclude that Thompkins under
14 BERGHUIS v. THOMPKINS
Opinion of the Court
stood his Miranda rights. Thompkins received a written
copy of the Miranda warnings; Detective Helgert deter
mined that Thompkins could read and understand Eng
lish; and Thompkins was given time to read the warnings.
Thompkins, furthermore, read aloud the fifth warning,
which stated that “you have the right to decide at any time
before or during questioning to use your right to remain
silent and your right to talk with a lawyer while you are
being questioned.” Brief for Petitioner 60 (capitalization
omitted). He was thus aware that his right to remain
silent would not dissipate after a certain amount of time
and that police would have to honor his right to be silent
and his right to counsel during the whole course of inter
rogation. Those rights, the warning made clear, could be
asserted at any time. Helgert, moreover, read the warn
ings aloud.
Second, Thompkins’s answer to Detective Helgert’s
question about whether Thompkins prayed to God for
forgiveness for shooting the victim is a “course of conduct
indicating waiver” of the right to remain silent. Butler,
supra, at 373. If Thompkins wanted to remain silent, he
could have said nothing in response to Helgert’s questions,
or he could have unambiguously invoked his Miranda
rights and ended the interrogation. The fact that Thomp
kins made a statement about three hours after receiving a
Miranda warning does not overcome the fact that he
engaged in a course of conduct indicating waiver. Police
are not required to rewarn suspects from time to time.
Thompkins’s answer to Helgert’s question about praying
to God for forgiveness for shooting the victim was suffi
cient to show a course of conduct indicating waiver. This
is confirmed by the fact that before then Thompkins
had given sporadic answers to questions throughout the
interrogation.
Third, there is no evidence that Thompkins’s statement
was coerced. See Burbine, supra, at 421. Thompkins does
Cite as: 560 U. S. ____ (2010) 15
Opinion of the Court
not claim that police threatened or injured him during the
interrogation or that he was in any way fearful. The
interrogation was conducted in a standard-sized room in
the middle of the afternoon. It is true that apparently he
was in a straight-backed chair for three hours, but there is
no authority for the proposition that an interrogation of
this length is inherently coercive. Indeed, even where
interrogations of greater duration were held to be im
proper, they were accompanied, as this one was not, by
other facts indicating coercion, such as an incapacitated
and sedated suspect, sleep and food deprivation, and
threats. Cf. Connelly, 479 U. S., at 163–164, n. 1. The fact
that Helgert’s question referred to Thompkins’s religious
beliefs also did not render Thompkins’s statement invol
untary. “[T]he Fifth Amendment privilege is not con
cerned ‘with moral and psychological pressures to confess
emanating from sources other than official coercion.’ ” Id.,
at 170 (quoting Oregon v. Elstad, 470 U. S. 298, 305
(1985)). In these circumstances, Thompkins knowingly
and voluntarily made a statement to police, so he waived
his right to remain silent.
C
Thompkins next argues that, even if his answer to
Detective Helgert could constitute a waiver of his right to
remain silent, the police were not allowed to question him
until they obtained a waiver first. Butler forecloses this
argument. The Butler Court held that courts can infer a
waiver of Miranda rights “from the actions and words of
the person interrogated.” 441 U. S., at 373. This principle
would be inconsistent with a rule that requires a waiver at
the outset. The Butler Court thus rejected the rule pro
posed by the Butler dissent, which would have “requir[ed]
the police to obtain an express waiver of [Miranda rights]
before proceeding with interrogation.” Id., at 379 (Bren
nan, J., dissenting). This holding also makes sense given
16 BERGHUIS v. THOMPKINS
Opinion of the Court
that “the primary protection afforded suspects subject[ed]
to custodial interrogation is the Miranda warnings them
selves.” Davis, 512 U. S., at 460. The Miranda rule and
its requirements are met if a suspect receives adequate
Miranda warnings, understands them, and has an oppor
tunity to invoke the rights before giving any answers or
admissions. Any waiver, express or implied, may be con
tradicted by an invocation at any time. If the right to
counsel or the right to remain silent is invoked at any
point during questioning, further interrogation must
cease.
Interrogation provides the suspect with additional
information that can put his or her decision to waive, or
not to invoke, into perspective. As questioning commences
and then continues, the suspect has the opportunity to
consider the choices he or she faces and to make a more
informed decision, either to insist on silence or to cooper
ate. When the suspect knows that Miranda rights can be
invoked at any time, he or she has the opportunity to
reassess his or her immediate and long-term interests.
Cooperation with the police may result in more favorable
treatment for the suspect; the apprehension of accom
plices; the prevention of continuing injury and fear; begin
ning steps towards relief or solace for the victims; and the
beginning of the suspect’s own return to the law and the
social order it seeks to protect.
In order for an accused’s statement to be admissible at
trial, police must have given the accused a Miranda warn
ing. See Miranda, 384 U. S., at 471. If that condition is
established, the court can proceed to consider whether
there has been an express or implied waiver of Miranda
rights. Id., at 476. In making its ruling on the admissibil
ity of a statement made during custodial questioning, the
trial court, of course, considers whether there is evidence
to support the conclusion that, from the whole course of
questioning, an express or implied waiver has been estab
Cite as: 560 U. S. ____ (2010) 17
Opinion of the Court
lished. Thus, after giving a Miranda warning, police may
interrogate a suspect who has neither invoked nor waived
his or her Miranda rights. On these premises, it fol-
lows the police were not required to obtain a waiver of
Thompkins’s Miranda rights before commencing the
interrogation.
D
In sum, a suspect who has received and understood the
Miranda warnings, and has not invoked his Miranda
rights, waives the right to remain silent by making an
uncoerced statement to the police. Thompkins did not
invoke his right to remain silent and stop the questioning.
Understanding his rights in full, he waived his right to
remain silent by making a voluntary statement to the
police. The police, moreover, were not required to obtain a
waiver of Thompkins’s right to remain silent before inter
rogating him. The state court’s decision rejecting Thomp
kins’s Miranda claim was thus correct under de novo
review and therefore necessarily reasonable under the
more deferential AEDPA standard of review, 28 U. S. C.
§2254(d). See Knowles, 556 U. S., at ___ (slip op., at 11)
(state court’s decision was correct under de novo review
and not unreasonable under AEDPA).
IV
The second issue in this case is whether Thompkins’s
counsel provided ineffective assistance by failing to re
quest a limiting instruction regarding how the jury could
consider the outcome of Purifoy’s trial. To establish inef
fective assistance of counsel, a defendant “must show both
deficient performance and prejudice.” Id., at ___ (slip op.,
at 10) (citing Strickland, 466 U. S., at 687). To establish
prejudice, a “defendant must show that there is a reason
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been dif
18 BERGHUIS v. THOMPKINS
Opinion of the Court
ferent.” Strickland, 466 U. S., at 694. In assessing preju
dice, courts “must consider the totality of the evidence
before the judge or jury.” Id., at 695. The Court of Ap
peals, however, neglected to take into account the other
evidence presented against Thompkins.
The Court of Appeals determined that the state court
was unreasonable, 28 U. S. C. §2254(d), when it found that
Thompkins suffered no prejudice from failure of defense
counsel to request an instruction regarding Purifoy’s
earlier acquittal of the murder and assault charges. The
state court had rejected Thompkins’s claim that he was
prejudiced by evidence of Purifoy’s earlier conviction for
firearms offenses, noting that “the record does not disclose
an attempt to argue that conviction for an improper pur
pose.” App. to Pet. for Cert. 80a. It is unclear what preju
dice standard the state court applied. The Court of Ap
peals ruled that the state court used the incorrect
standard for assessing prejudice under Strickland because
“[q]uestions of the prosecution’s purpose or intent are
completely irrelevant in analyzing whether an error re
sulted in prejudice, which by definition concerns the er
ror’s effect upon the outcome.” 547 F. 3d, at 591–592
(emphasis deleted).
Even if the state court used an incorrect legal standard,
we need not determine whether AEDPA’s deferential
standard of review, 28 U. S. C. §2254(d), applies in this
situation. Cf. Williams v. Taylor, 529 U. S. 362, 397–398
(2000). That is because, even if AEDPA deference does not
apply, Thompkins cannot show prejudice under de novo
review, the more favorable standard of review for Thomp
kins. Courts cannot grant writs of habeas corpus under
§2254 by engaging only in de novo review when it is un
clear whether AEDPA deference applies, §2254(d). In
those situations, courts must resolve whether AEDPA
deference applies, because if it does, a habeas petitioner
may not be entitled to a writ of habeas corpus under
Cite as: 560 U. S. ____ (2010) 19
Opinion of the Court
§2254(d). Courts can, however, deny writs of habeas
corpus under §2254 by engaging in de novo review when it
is unclear whether AEDPA deference applies, because a
habeas petitioner will not be entitled to a writ of habeas
corpus if his or her claim is rejected on de novo review, see
§2254(a).
It seems doubtful that failure to request the instruction
about the earlier acquittal or conviction was deficient
representation; but on the assumption that it was, on this
record Thompkins cannot show prejudice. The record
establishes that it was not reasonably likely that the
instruction would have made any difference in light of all
the other evidence of guilt. The surviving victim, Freder
ick France, identified Thompkins as the shooter, and the
identification was supported by a photograph taken from a
surveillance camera. Thompkins’s friend Omar Stephens
testified that Thompkins confessed to him during a phone
conversation, and the details of that confession were cor
roborated by evidence that Thompkins stripped the van
and abandoned it after the shooting. The jury, moreover,
was capable of assessing Purifoy’s credibility, as it was
instructed to do. The jury in Thompkins’s case could have
concluded that the earlier jury in Purifoy’s case made a
mistake, or alternatively, that Purifoy was not in fact
guilty of the crime for which he had been charged. There
was ample evidence in the record to support Thompkins’s
guilt under either theory, and his jury was instructed to
weigh all of the evidence in determining whether there
was guilt beyond a reasonable doubt. Under our de novo
review of this record, Thompkins cannot show prejudice.
* * *
The judgment of the Court of Appeals is reversed,
and the case is remanded with instructions to deny the
petition.
It is so ordered.
Cite as: 560 U. S. ____ (2010) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1470
_________________
MARY BERGHUIS, WARDEN, PETITIONER v. VAN
CHESTER THOMPKINS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 1, 2010]
JUSTICE SOTOMAYOR, with whom JUSTICE STEVENS,
JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.
The Court concludes today that a criminal suspect
waives his right to remain silent if, after sitting tacit and
uncommunicative through nearly three hours of police
interrogation, he utters a few one-word responses. The
Court also concludes that a suspect who wishes to guard
his right to remain silent against such a finding of
“waiver” must, counterintuitively, speak—and must do so
with sufficient precision to satisfy a clear-statement rule
that construes ambiguity in favor of the police. Both
propositions mark a substantial retreat from the protec
tion against compelled self-incrimination that Miranda v.
Arizona, 384 U. S. 436 (1966), has long provided during
custodial interrogation. The broad rules the Court an
nounces today are also troubling because they are unnec
essary to decide this case, which is governed by the defer
ential standard of review set forth in the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), 28
U. S. C. §2254(d). Because I believe Thompkins is entitled
to relief under AEDPA on the ground that his statements
were admitted at trial without the prosecution having
carried its burden to show that he waived his right to
remain silent; because longstanding principles of judicial
restraint counsel leaving for another day the questions of
2 BERGHUIS v. THOMPKINS
SOTOMAYOR, J., dissenting
law the Court reaches out to decide; and because the
Court’s answers to those questions do not result from a
faithful application of our prior decisions, I respectfully
dissent.
I
We granted certiorari to review the judgment of the
Court of Appeals for the Sixth Circuit, which held that
Thompkins was entitled to habeas relief under both
Miranda and Strickland v. Washington, 466 U. S. 668
(1984). 547 F. 3d 572 (2008). As to the Miranda claims,
Thompkins argues first that through his conduct during
the 3-hour custodial interrogation he effectively invoked
his right to remain silent, requiring police to cut off ques
tioning in accordance with Miranda and Michigan v.
Mosley, 423 U. S. 96 (1975). Thompkins also contends his
statements were in any case inadmissible because the
prosecution failed to meet its heavy burden under
Miranda of proving that he knowingly and intelligently
waived his right to remain silent. The Sixth Circuit
agreed with Thompkins as to waiver and declined to reach
the question of invocation. 547 F. 3d, at 583–584, n. 4. In
my view, even if Thompkins cannot prevail on his invoca
tion claim under AEDPA, he is entitled to relief as to
waiver. Because I would affirm the judgment of the Sixth
Circuit on that ground, I would not reach Thompkins’
claim that he received constitutionally ineffective assis
tance of counsel.
The strength of Thompkins’ Miranda claims depends in
large part on the circumstances of the 3-hour interroga
tion, at the end of which he made inculpatory statements
later introduced at trial. The Court’s opinion downplays
record evidence that Thompkins remained almost com
pletely silent and unresponsive throughout that session.
One of the interrogating officers, Detective Helgert, testi
fied that although Thompkins was administered Miranda
Cite as: 560 U. S. ____ (2010) 3
SOTOMAYOR, J., dissenting
warnings, the last of which he read aloud, Thompkins
expressly declined to sign a written acknowledgment that
he had been advised of and understood his rights. There
is conflicting evidence in the record about whether
Thompkins ever verbally confirmed understanding his
rights.1 The record contains no indication that the officers
sought or obtained an express waiver.
As to the interrogation itself, Helgert candidly charac
terized it as “very, very one-sided” and “nearly a mono
logue.” App. 10a, 17a. Thompkins was “[p]eculiar,”
“[s]ullen,” and “[g]enerally quiet.” Id., at 149a. Helgert
and his partner “did most of the talking,” as Thompkins
was “not verbally communicative” and “[l]argely” re
mained silent. Id., at 149a, 17a, 19a. To the extent
Thompkins gave any response, his answers consisted of “a
word or two. A ‘yeah,’ or a ‘no,’ or ‘I don’t know.’ . . . And
sometimes . . . he simply sat down . . . with [his] head in
[his] hands looking down. Sometimes . . . he would look up
and make eye-contact would be the only response.” Id., at
23a–24a. After proceeding in this fashion for approxi
mately 2 hours and 45 minutes, Helgert asked Thompkins
three questions relating to his faith in God. The prosecu
tion relied at trial on Thompkins’ one-word answers of
“yes.” See id., at 10a–11a.
Thompkins’ nonresponsiveness is particularly striking
in the context of the officers’ interview strategy, later
——————
1 At the suppression hearing, Detective Helgert testified that after
reading Thompkins the warnings, “I believe I asked him if he under
stood the Rights, and I think I got a verbal answer to that as a ‘yes.’ ”
App. 9a. In denying the motion to suppress, the trial court relied on
that factual premise. Id., at 26a. In his later testimony at trial, Hel
gert remembered the encounter differently. Asked whether Thompkins
“indicate[d] that he understood [the warnings]” after they had been
read, Helgert stated “I don’t know that I orally asked him that ques
tion.” Id., at 148a. Nevertheless, the Michigan Court of Appeals stated
that Thompkins verbally acknowledged understanding his rights. App.
to Pet. for Cert. 75a.
4 BERGHUIS v. THOMPKINS
SOTOMAYOR, J., dissenting
explained as conveying to Thompkins that “this was his
opportunity to explain his side [of the story]” because
“[e]verybody else, including [his] co-[d]efendants, had
given their version,” and asking him “[w]ho is going to
speak up for you if you don’t speak up for yourself?” Id., at
10a, 21a. Yet, Helgert confirmed that the “only thing
[Thompkins said] relative to his involvement [in the shoot
ing]” occurred near the end of the interview—i.e., in re
sponse to the questions about God. Id., at 10a–11a (em
phasis added). The only other responses Helgert could
remember Thompkins giving were that “ ‘[h]e didn’t want
a peppermint’ ” and “ ‘the chair that he was sitting in was
hard.’ ” Id., at 152a. Nevertheless, the Michigan court
concluded on this record that Thompkins had not invoked
his right to remain silent because “he continued to talk
with the officer, albeit sporadically,” and that he voluntar
ily waived that right. App. to Pet. for Cert. 75a.
Thompkins’ federal habeas petition is governed by
AEDPA, under which a federal court may not grant the
writ unless the state court’s adjudication of the merits of
the claim at issue “was contrary to, or involved an unrea
sonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,”
or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” §§2254(d)(1), (2).
The relevant clearly established federal law for purposes
of §2254(d)(1) begins with our landmark Miranda decision,
which “g[a]ve force to the Constitution’s protection against
compelled self-incrimination” by establishing “ ‘certain
procedural safeguards that require police to advise crimi
nal suspects of their rights under the Fifth and Four
teenth Amendments before commencing custodial interro
gation,’ ” Florida v. Powell, 559 U. S. ___, ___–___ (2010)
(slip op., at 7–8) (quoting Duckworth v. Eagan, 492 U. S.
195, 201 (1989)). Miranda prescribed the now-familiar
Cite as: 560 U. S. ____ (2010) 5
SOTOMAYOR, J., dissenting
warnings that police must administer prior to questioning.
See 384 U. S., at 479; ante, at 8. Miranda and our subse
quent cases also require police to “respect the accused’s
decision to exercise the rights outlined in the warnings.”
Moran v. Burbine, 475 U. S. 412, 420 (1986). “If [an]
individual indicates in any manner, at any time prior to or
during questioning, that he wishes to remain silent” or if
he “states that he wants an attorney,” the interrogation
“must cease.” 384 U. S., at 473–474.
Even when warnings have been administered and a
suspect has not affirmatively invoked his rights, state
ments made in custodial interrogation may not be admit
ted as part of the prosecution’s case in chief “unless and
until” the prosecution demonstrates that an individual
“knowingly and intelligently waive[d] [his] rights.” Id., at
479; accord, ante, at 10. “[A] heavy burden rests on the
government to demonstrate that the defendant knowingly
and intelligently waived his privilege against self
incrimination and his right to retained or appointed coun
sel.” Miranda, 384 U. S., at 475. The government must
satisfy the “high standar[d] of proof for the waiver of
constitutional rights [set forth in] Johnson v. Zerbst, 304
U. S. 458 (1938).” Ibid.
The question whether a suspect has validly waived his
right is “entirely distinct” as a matter of law from whether
he invoked that right. Smith v. Illinois, 469 U. S. 91, 98
(1984) (per curiam). The questions are related, however,
in terms of the practical effect on the exercise of a sus
pect’s rights. A suspect may at any time revoke his prior
waiver of rights—or, closer to the facts of this case, guard
against the possibility of a future finding that he implicitly
waived his rights—by invoking the rights and thereby
requiring the police to cease questioning. Accord, ante, at
16.
6 BERGHUIS v. THOMPKINS
SOTOMAYOR, J., dissenting
II
A
Like the Sixth Circuit, I begin with the question
whether Thompkins waived his right to remain silent.
Even if Thompkins did not invoke that right, he is entitled
to relief because Michigan did not satisfy its burden of
establishing waiver.
Miranda’s discussion of the prosecution’s burden in
proving waiver speaks with particular clarity to the facts
of this case and therefore merits reproducing at length:
“If [an] interrogation continues without the pres
ence of an attorney and a statement is taken, a heavy
burden rests on the government to demonstrate that
the defendant knowingly and intelligently waived his
privilege against self-incrimination and his right to
retained or appointed counsel. . . . Since the State is
responsible for establishing the isolated circumstances
under which [an] interrogation takes place and has
the only means of making available corroborated evi
dence of warnings given during incommunicado inter
rogation, the burden is rightly on its shoulders.
“An express statement that the individual is willing
to make a statement and does not want an attorney
followed closely by a statement could constitute a
waiver. But a valid waiver will not be presumed sim
ply from the silence of the accused after warnings are
given or simply from the fact that a confession was in
fact eventually obtained.” 384 U. S., at 475.
Miranda went further in describing the facts likely
to satisfy the prosecution’s burden of establishing the ad
missibility of statements obtained after a lengthy
interrogation:
“Whatever the testimony of the authorities as to
waiver of rights by an accused, the fact of lengthy in
terrogation or incommunicado incarceration before a
Cite as: 560 U. S. ____ (2010) 7
SOTOMAYOR, J., dissenting
statement is made is strong evidence that the accused
did not validly waive his rights. In these circum
stances 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.” Id., at
476.
This Court’s decisions subsequent to Miranda have
emphasized the prosecution’s “heavy burden” in proving
waiver. See, e.g., Tague v. Louisiana, 444 U. S. 469, 470–
471 (1980) (per curiam); Fare v. Michael C., 442 U. S. 707,
724 (1979). We have also reaffirmed that a court may not
presume waiver from a suspect’s silence or from the mere
fact that a confession was eventually obtained. See North
Carolina v. Butler, 441 U. S. 369, 373 (1979).
Even in concluding that Miranda does not invariably
require an express waiver of the right to silence or the
right to counsel, this Court in Butler made clear that the
prosecution bears a substantial burden in establishing an
implied waiver. The Federal Bureau of Investigation had
obtained statements after advising Butler of his rights and
confirming that he understood them. When presented
with a written waiver-of-rights form, Butler told the
agents, “ ‘I will talk to you but I am not signing any form.’ ”
441 U. S., at 371. He then made inculpatory statements,
which he later sought to suppress on the ground that he
had not expressly waived his right to counsel.
Although this Court reversed the state-court judgment
concluding that the statements were inadmissible, we
quoted at length portions of the Miranda opinion repro
duced above. We cautioned that even an “express written
or oral statement of waiver of the right to remain silent or
of the right to counsel” is not “inevitably . . . sufficient to
establish waiver,” emphasizing that “[t]he question is . . .
8 BERGHUIS v. THOMPKINS
SOTOMAYOR, J., dissenting
whether the defendant in fact knowingly and voluntarily
waived the rights delineated in the Miranda case.” 441
U. S., at 373. Miranda, we observed, “unequivocally said
. . . mere silence is not enough.” 441 U. S., at 373. While
we stopped short in Butler of announcing a per se rule that
“the defendant’s silence, coupled with an understanding of
his rights and a course of conduct indicating waiver, may
never support a conclusion that a defendant has waived
his rights,” we reiterated that “courts must presume that a
defendant did not waive his rights; the prosecution’s bur
den is great.” Ibid.2
Rarely do this Court’s precedents provide clearly estab
lished law so closely on point with the facts of a particular
case. Together, Miranda and Butler establish that a court
“must presume that a defendant did not waive his
right[s]”; the prosecution bears a “heavy burden” in at
tempting 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 confes
sion was in fact eventually obtained.” Miranda, supra, at
475–476; Butler, supra, at 372–373.3
——————
2 TheCourt cites Colorado v. Connelly, 479 U. S. 157, 168 (1986), for
the proposition that the prosecution’s “ ‘heavy burden’ ” under Miranda
“is not more than the burden to establish waiver by a preponderance of
the evidence.” Ante, at 12. Connelly did reject a clear and convincing
evidence standard of proof in favor of a preponderance burden. But
nothing in Connelly displaced the core presumption against finding a
waiver of rights, and we have subsequently relied on Miranda’s charac
terization of the prosecution’s burden as “heavy.” See Arizona v.
Roberson, 486 U. S. 675, 680 (1988).
3 Likely reflecting the great weight of the prosecution’s burden in
proving implied waiver, many contemporary police training resources
instruct officers to obtain a waiver of rights prior to proceeding at all
with an interrogation. See, e.g., F. Inbau, J. Reid, J. Buckley, & B.
Jayne, Criminal Interrogation and Confessions 491 (4th ed. 2004)
Cite as: 560 U. S. ____ (2010) 9
SOTOMAYOR, J., dissenting
It is undisputed here that Thompkins never expressly
waived his right to remain silent. His refusal to sign even
an acknowledgment that he understood his Miranda
rights evinces, if anything, an intent not to waive those
rights. Cf. United States v. Plugh, 576 F. 3d 135, 142
(CA2 2009) (suspect’s refusal to sign waiver-of-rights form
“constituted an unequivocally negative answer to the
question . . . whether he was willing to waive his rights”).
That Thompkins did not make the inculpatory statements
at issue until after approximately 2 hours and 45 minutes
of interrogation serves as “strong evidence” against
waiver. Miranda and Butler expressly preclude the possi
bility that the inculpatory statements themselves are
sufficient to establish waiver.
In these circumstances, Thompkins’ “actions and words”
preceding the inculpatory statements simply do not evi
dence a “course of conduct indicating waiver” sufficient to
carry the prosecution’s burden. See Butler, supra, at 373.4
——————
(hereinafter Inbau) (“Once [a] waiver is given, the police may proceed
with the interrogation”); D. Zulawski & D. Wicklander, Practical
Aspects of Interview and Interrogation 55 (2d ed. 2002) (“Only upon the
waiver of th[e] [Miranda] rights by the suspect can an interrogation
occur”); see also Brief for National Association of Criminal Defense
Lawyers et al. as Amici Curiae 11–12 (hereinafter NACDL brief)
(collecting authorities).
4 Although such decisions are not controlling under AEDPA, it is
notable that lower courts have similarly required a showing of words or
conduct beyond inculpatory statements. See, e.g., United States v.
Wallace, 848 F. 2d 1464, 1475 (CA9 1988) (no implied waiver when
warned suspect “maintained her silence for . . . perhap[s] as many as
ten minutes” before answering a question); McDonald v. Lucas, 677
F. 2d 518, 521–522 (CA5 1982) (no implied waiver when defendant
refused to sign waiver and there was “no evidence of words or actions
implying a waiver, except the [inculpatory] statement”). Generally,
courts have found implied waiver when a warned suspect has made
incriminating statements “as part of a steady stream of speech or as
part of a back-and-forth conversation with the police,” or when a
warned suspect who previously invoked his right “spontaneously
recommences the dialogue with his interviewers.” Bui v. DiPaolo, 170
10 BERGHUIS v. THOMPKINS
SOTOMAYOR, J., dissenting
Although the Michigan court stated that Thompkins
“sporadically” participated in the interview, App. to Pet.
for Cert. 75a, that court’s opinion and the record before us
are silent as to the subject matter or context of even a
single question to which Thompkins purportedly re
sponded, other than the exchange about God and the
statements respecting the peppermint and the chair.
Unlike in Butler, Thompkins made no initial declaration
akin to “I will talk to you.” See also 547 F. 3d, at 586–587
(case below) (noting that the case might be different if the
record showed Thompkins had responded affirmatively to
an invitation to tell his side of the story or described any
particular question that Thompkins answered). Indeed,
Michigan and the United States concede that no waiver
occurred in this case until Thompkins responded “yes” to
the questions about God. See Tr. of Oral Arg. 7, 30. I
believe it is objectively unreasonable under our clearly
established precedents to conclude the prosecution met its
“heavy burden” of proof on a record consisting of three one
word answers, following 2 hours and 45 minutes of silence
punctuated by a few largely nonverbal responses to uni
dentified questions.
B
Perhaps because our prior Miranda precedents so
clearly favor Thompkins, the Court today goes beyond
AEDPA’s deferential standard of review and announces a
new general principle of law. Any new rule, it must be
emphasized, is unnecessary to the disposition of this case.
——————
F. 3d 232, 240 (CA1 1999) (citation and internal quotation marks
omitted); see also United States v. Smith, 218 F. 3d 777, 781 (CA7 2000)
(implied waiver where suspect “immediately began talking to the
agents after refusing to sign the waiver form and continued to do so for
an hour”); United States v. Scarpa, 897 F. 2d 63, 68 (CA2 1990) (implied
waiver where warned suspect engaged in a “ ‘relaxed and friendly’ ”
conversation with officers during a 2-hour drive).
Cite as: 560 U. S. ____ (2010) 11
SOTOMAYOR, J., dissenting
If, in the Court’s view, the Michigan court did not unrea
sonably apply our Miranda precedents in denying Thomp
kins relief, it should simply say so and reverse the Sixth
Circuit’s judgment on that ground. “It is a fundamental
rule of judicial restraint . . . that this Court will not reach
constitutional questions in advance of the necessity of
deciding them.” Three Affiliated Tribes of Fort Berthold
Reservation v. Wold Engineering, P. C., 467 U. S. 138, 157
(1984). Consistent with that rule, we have frequently
declined to address questions beyond what is necessary to
resolve a case under AEDPA. See, e.g., Tyler v. Cain, 533
U. S. 656, 667–668 (2001) (declining to address question
where any statement by this Court would be “dictum” in
light of AEDPA’s statutory constraints on habeas review);
cf. Wiggins v. Smith, 539 U. S. 510, 522 (2003) (noting that
Williams v. Taylor, 529 U. S. 362 (2000), “made no new
law” because the “case was before us on habeas review”).
No necessity exists to justify the Court’s broad announce
ment today.
The Court concludes that when Miranda warnings have
been given and understood, “an accused’s uncoerced
statement establishes an implied waiver of the right to
remain silent.” Ante, at 12–13. More broadly still, the
Court states that, “[a]s a general proposition, the law can
presume that an individual who, with a full understanding
of his or her rights, acts in a manner inconsistent with
their exercise has made a deliberate choice to relinquish
the protection those rights afford.” Ante, at 13.
These principles flatly contradict our longstanding
views that “a valid waiver will not be presumed . . . simply
from the fact that a confession was in fact eventually
obtained,” Miranda, 384 U. S., at 475, and that “[t]he
courts must presume that a defendant did not waive his
rights,” Butler, 441 U. S., at 373. Indeed, we have in the
past summarily reversed a state-court decision that in
verted Miranda’s antiwaiver presumption, characterizing
12 BERGHUIS v. THOMPKINS
SOTOMAYOR, J., dissenting
the error as “readily apparent.” Tague, 444 U. S., at 470–
471. At best, the Court today creates an unworkable and
conflicting set of presumptions that will undermine
Miranda’s goal of providing “concrete constitutional guide
lines for law enforcement agencies and courts to follow,”
384 U. S., at 442. At worst, it overrules sub silentio an
essential aspect of the protections Miranda has long pro
vided for the constitutional guarantee against self
incrimination.
The Court’s conclusion that Thompkins’ inculpatory
statements were sufficient to establish an implied waiver,
ante, at 14, finds no support in Butler. Butler itself distin
guished between a sufficient “course of conduct” and in
culpatory statements, reiterating Miranda’s admonition
that “ ‘a valid waiver will not be presumed simply from . . .
the fact that a confession was in fact eventually ob
tained.’ ” Butler, supra, at 373 (quoting Miranda, supra,
at 475). Michigan suggests Butler’s silence “ ‘when ad
vised of his right to the assistance of a lawyer,’ ” combined
with our remand for the state court to apply the implied
waiver standard, shows that silence followed by state
ments can be a “ ‘course of conduct.’ ” Brief for Petitioner
26 (quoting Butler, supra, at 371). But the evidence of
implied waiver in Butler was worlds apart from the evi
dence in this case, because Butler unequivocally said “I
will talk to you” after having been read Miranda warn
ings. Thompkins, of course, made no such statement.
The Court also relies heavily on Burbine in characteriz
ing the scope of the prosecution’s burden in proving
waiver. Consistent with Burbine, the Court observes, the
prosecution must prove that waiver was “ ‘voluntary in the
sense that it was the product of a free and deliberate
choice rather than intimidation’ ” and “ ‘made with a full
awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon it.’ ” Ante,
at 10 (quoting 475 U. S., at 421). I agree with the Court’s
Cite as: 560 U. S. ____ (2010) 13
SOTOMAYOR, J., dissenting
statement, so far as it goes. What it omits, however, is
that the prosecution also bears an antecedent burden of
showing there was, in fact, either an express waiver or a
“course of conduct” sufficiently clear to support a finding of
implied waiver. Nothing in Burbine even hints at remov
ing that obligation. The question in that case, rather, was
whether a suspect’s multiple express waivers of his rights
were invalid because police “misinformed an inquiring
attorney about their plans concerning the suspect or be
cause they failed to inform the suspect of the attorney’s
efforts to reach him.” Id., at 420; see also Colorado v.
Spring, 479 U. S. 564, 573 (1987). The Court’s analysis in
Burbine was predicated on the existence of waiver-in-fact.
Today’s dilution of the prosecution’s burden of proof to
the bare fact that a suspect made inculpatory statements
after Miranda warnings were given and understood takes
an unprecedented step away from the “high standards of
proof for the waiver of constitutional rights” this Court has
long demanded. Miranda, supra, at 475; cf. Brewer v.
Williams, 430 U. S. 387, 404 (1977) (“[C]ourts indulge in
every reasonable presumption against waiver”); Zerbst,
304 U. S., at 464. When waiver is to be inferred during a
custodial interrogation, there are sound reasons to require
evidence beyond inculpatory statements themselves.
Miranda and our subsequent cases are premised on the
idea that custodial interrogation is inherently coercive.
See 384 U. S., at 455 (“Even without employing brutality,
the ‘third degree’ or [other] specific strategems . . . the
very fact of custodial interrogation exacts a heavy toll on
individual liberty and trades on the weakness of individu
als”); Dickerson v. United States, 530 U. S. 428, 435 (2000).
Requiring proof of a course of conduct beyond the inculpa
tory statements themselves is critical to ensuring that
those statements are voluntary admissions and not the
dubious product of an overborne will.
Today’s decision thus ignores the important interests
14 BERGHUIS v. THOMPKINS
SOTOMAYOR, J., dissenting
Miranda safeguards. The underlying constitutional guar
antee against self-incrimination reflects “many of our
fundamental values and most noble aspirations,” our
society’s “preference for an accusatorial rather than an
inquisitorial system of criminal justice”; a “fear that self
incriminating statements will be elicited by inhumane
treatment and abuses” and a resulting “distrust of self
deprecatory statements”; and a realization that while the
privilege is “sometimes a shelter to the guilty, [it] is often
a protection to the innocent.” Withrow v. Williams, 507
U. S. 680, 692 (1993) (internal quotation marks omitted).
For these reasons, we have observed, a criminal law sys
tem “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.” Ibid.
(some internal quotation marks omitted). “By bracing
against ‘the possibility of unreliable statements in every
instance of in-custody interrogation,’ ” Miranda’s prophy
lactic rules serve to “ ‘protect the fairness of the trial it
self.’ ” 507 U. S., at 692 (quoting Johnson v. New Jersey,
384 U. S. 719, 730 (1966); Schneckloth v. Bustamonte, 412
U. S. 218, 240 (1973)). Today’s decision bodes poorly for
the fundamental principles that Miranda protects.
III
Thompkins separately argues that his conduct during
the interrogation invoked his right to remain silent, re
quiring police to terminate questioning. Like the Sixth
Circuit, I would not reach this question because Thomp
kins is in any case entitled to relief as to waiver. But even
if Thompkins would not prevail on his invocation claim
under AEDPA’s deferential standard of review, I cannot
agree with the Court’s much broader ruling that a suspect
must clearly invoke his right to silence by speaking.
Taken together with the Court’s reformulation of the
prosecution’s burden of proof as to waiver, today’s novel
Cite as: 560 U. S. ____ (2010) 15
SOTOMAYOR, J., dissenting
clear-statement rule for invocation invites police to ques
tion a suspect at length—notwithstanding his persistent
refusal to answer questions—in the hope of eventually
obtaining a single inculpatory response which will suffice
to prove waiver of rights. Such a result bears little sem
blance to the “fully effective” prophylaxis, 384 U. S., at
444, that Miranda requires.
A
Thompkins’ claim for relief under AEDPA rests on the
clearly established federal law of Miranda and Mosley. In
Miranda, the Court concluded that “[i]f [an] individual
indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interro
gation must cease. . . . [A]ny statement taken after the
person invokes his privilege cannot be other than the
product of compulsion, subtle or otherwise.” 384 U. S., at
473–474. In Mosley, the Court said that a “critical safe
guard” of the right to remain silent is a suspect’s “ ‘right to
cut off questioning.’ ” 423 U. S., at 103 (quoting Miranda,
supra, at 474). Thus, “the admissibility of statements
obtained after the person in custody has decided to remain
silent depends under Miranda on whether his ‘right to cut
off questioning’ was ‘scrupulously honored.’ ” 423 U. S., at
104.5
Thompkins contends that in refusing to respond to
questions he effectively invoked his right to remain silent,
——————
5 In holding that Mosley’s right had been “ ‘scrupulously honored,’ ”
the Court observed that he was properly advised of his rights and
indicated his understanding in writing; that police “immediately
ceased” interrogation when Mosley stated he did not want to discuss
the crime and allowed an “interval of more than two hours” to pass
before reapproaching Mosley “at another location about an unrelated
[crime]”; and that Mosley was readministered “full and complete
Miranda warnings at the outset of the second interrogation” and had a
“full and fair opportunity to exercise th[o]se options.” 423 U. S., at 103–
105.
16 BERGHUIS v. THOMPKINS
SOTOMAYOR, J., dissenting
such that police were required to terminate the interroga
tion prior to his inculpatory statements. In Michigan’s
view, Thompkins cannot prevail under AEDPA because
this Court’s precedents have not previously established
whether a suspect’s ambiguous statements or actions
require the police to stop questioning. We have held that
a suspect who has “ ‘invoked his right to have counsel
present . . . is not subject to further interrogation by the
authorities until counsel has been made available to him,
unless [he] initiates further communication, exchanges, or
conversations with the police.’ ” Maryland v. Shatzer, 559
U. S. ___, ___ (2010) (slip op., at 5) (quoting Edwards v.
Arizona, 451 U. S. 477, 484–485 (1981)). Notwithstanding
Miranda’s statement that “there can be no questioning” if
a suspect “indicates in any manner . . . that he wishes to
consult with an attorney,” 384 U. S., at 444–445, the Court
in Davis v. United States, 512 U. S. 452, 461 (1994) estab
lished a clear-statement rule for invoking the right to
counsel. After a suspect has knowingly and voluntarily
waived his Miranda rights, Davis held, police may con
tinue questioning “until and unless the suspect clearly
requests an attorney.” 512 U. S., at 461 (emphasis added).
Because this Court has never decided whether Davis’
clear-statement rule applies to an invocation of the right
to silence, Michigan contends, there was no clearly estab
lished federal law prohibiting the state court from requir
ing an unambiguous invocation. That the state court’s
decision was not objectively unreasonable is confirmed, in
Michigan’s view, by the number of federal Courts of Ap
peals to have applied Davis to invocation of the right to
silence. Brief for Petitioner 44.
Under AEDPA’s deferential standard of review, it is
indeed difficult to conclude that the state court’s applica
tion of our precedents was objectively unreasonable.
Although the duration and consistency of Thompkins’
refusal to answer questions throughout the 3-hour inter
Cite as: 560 U. S. ____ (2010) 17
SOTOMAYOR, J., dissenting
rogation provide substantial evidence in support of his
claim, Thompkins did not remain absolutely silent, and
this Court has not previously addressed whether a suspect
can invoke the right to silence by remaining uncooperative
and nearly silent for 2 hours and 45 minutes.
B
The Court, however, eschews this narrow ground of
decision, instead extending Davis to hold that police may
continue questioning a suspect until he unambiguously
invokes his right to remain silent. Because Thompkins
neither said “he wanted to remain silent” nor said “he did
not want to talk with the police,” the Court concludes, he
did not clearly invoke his right to silence. Ante, at 8–10.6
I disagree with this novel application of Davis. Neither
the rationale nor holding of that case compels today’s
result. Davis involved the right to counsel, not the right to
silence. The Court in Davis reasoned that extending
Edwards’ “rigid” prophylactic rule to ambiguous requests
for a lawyer would transform Miranda into a “ ‘wholly
irrational obstacl[e] to legitimate police investigative
activity’ ” by “needlessly prevent[ing] the police from ques
tioning a suspect in the absence of counsel even if [he] did
not wish to have a lawyer present.” Davis, supra, at 460.
But Miranda itself “distinguished between the procedural
safeguards triggered by a request to remain silent and a
request for an attorney.” Mosley, supra, at 104, n. 10;
accord, Edwards, supra, at 485. Mosley upheld the admis
sion of statements when police immediately stopped inter
rogating a suspect who invoked his right to silence, but
reapproached him after a 2-hour delay and obtained in
——————
6 The Court also ignores a second available avenue to avoid reaching
the constitutional question. Because the Sixth Circuit declined to
decide Thompkins’ invocation claim, a remand would permit the lower
court to address the question in the first instance. Cf. Cutter v. Wilkin
son, 544 U. S. 709, 718, n. 7 (2005).
18 BERGHUIS v. THOMPKINS
SOTOMAYOR, J., dissenting
culpatory responses relating to a different crime after
administering fresh Miranda warnings. The different
effects of invoking the rights are consistent with distinct
standards for invocation. To the extent Mosley contem
plates a more flexible form of prophylaxis than Edwards—
and, in particular, does not categorically bar police from
reapproaching a suspect who has invoked his right to
remain silent—Davis’ concern about “ ‘wholly irrational
obstacles’ ” to police investigation applies with less force.
In addition, the suspect’s equivocal reference to a lawyer
in Davis occurred only after he had given express oral and
written waivers of his rights. Davis’ holding is explicitly
predicated on that fact. See 512 U. S., at 461 (“We there
fore hold that, after a knowing and voluntary waiver of the
Miranda rights, law enforcement officers may continue
questioning until and unless the suspect clearly requests
an attorney”). The Court ignores this aspect of Davis, as
well as the decisions of numerous federal and state courts
declining to apply a clear-statement rule when a suspect
has not previously given an express waiver of rights.7
In my mind, a more appropriate standard for addressing
a suspect’s ambiguous invocation of the right to remain
silent is the constraint Mosley places on questioning a
suspect who has invoked that right: The suspect’s “ ‘right
to cut off questioning’ ” must be “ ‘scrupulously honored.’ ”
See 423 U. S., at 104. Such a standard is necessarily
precautionary and fact specific. The rule would acknowl
——————
7 See, e.g., United States v. Plugh, 576 F. 3d 135, 143 (CA2 2009)
(“Davis only provides guidance . . . [when] a defendant makes a claim
that he subsequently invoked previously waived Fifth Amendment
rights”); United States v. Rodriguez, 518 F. 3d 1072, 1074 (CA9 2008)
(Davis’ “ ‘clear statement’ ” rule “applies only after the police have
already obtained an unambiguous and unequivocal waiver of Miranda
rights”); State v. Tuttle, 2002 SD 94, ¶14, 650 N. W. 2d 20, 28; State v.
Holloway, 2000 ME 172, ¶12, 760 A. 2d 223, 228; State v. Leyva, 951
P. 2d 738, 743 (Utah 1997).
Cite as: 560 U. S. ____ (2010) 19
SOTOMAYOR, J., dissenting
edge that some statements or conduct are so equivocal
that police may scrupulously honor a suspect’s rights
without terminating questioning—for instance, if a sus
pect’s actions are reasonably understood to indicate a
willingness to listen before deciding whether to respond.
But other statements or actions—in particular, when a
suspect sits silent throughout prolonged 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. Under such
circumstances, “scrupulous” respect for the suspect’s
rights will require police to terminate questioning under
Mosley.8
To be sure, such a standard does not provide police with
a bright-line rule. Cf. ante, at 9–10. But, as we have
previously recognized, Mosley itself does not offer clear
guidance to police about when and how interrogation may
continue after a suspect invokes his rights. See Solem v.
Stumes, 465 U. S. 638, 648 (1984); see also Shatzer, 559
U. S., at ___ (THOMAS, J., concurring in part and concur
ring in judgment) (slip op., at 3). Given that police have
for nearly 35 years applied Mosley’s fact-specific standard
in questioning suspects who have invoked their right to
remain silent; that our cases did not during that time
resolve what statements or actions suffice to invoke that
right; and that neither Michigan nor the Solicitor General
have provided evidence in this case that the status quo
has proved unworkable, I see little reason to believe to
——————
8 Indeed, this rule appears to reflect widespread contemporary police
practice. Thompkins’ amici collect a range of training materials that
instruct police not to engage in prolonged interrogation after a suspect
has failed to respond to initial questioning. See NACDL Brief 32–34.
One widely used police manual, for example, teaches that a suspect
who “indicates,” “even by silence itself,” his unwillingness to answer
questions “has obviously exercised his constitutional privilege against
self-incrimination.” Inbau 498.
20 BERGHUIS v. THOMPKINS
SOTOMAYOR, J., dissenting
day’s clear-statement rule is necessary to ensure effective
law enforcement.
Davis’ clear-statement rule is also a poor fit for the right
to silence. Advising a suspect that he has a “right to
remain silent” is unlikely to convey that he must speak
(and must do so in some particular fashion) to ensure the
right will be protected. Cf. Soffar v. Cockrell, 300 F. 3d
588, 603 (CA5 2002) (en banc) (DeMoss, J., dissenting)
(“What in the world must an individual do to exercise his
constitutional right to remain silent beyond actually, in
fact, remaining silent?”). By contrast, telling a suspect “he
has the right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed for him
prior to any questioning if he so desires,” Miranda, 384
U. S., at 479, implies the need for speech to exercise that
right. Davis’ requirement that a suspect must “clearly
reques[t] an attorney” to terminate questioning thus
aligns with a suspect’s likely understanding of the
Miranda warnings in a way today’s rule does not. The
Court suggests Thompkins could have employed the “sim
ple, unambiguous” means of saying “he wanted to remain
silent” or “did not want to talk with the police.” Ante, at
10. But the Miranda warnings give no hint that a suspect
should use those magic words, and there is little reason to
believe police—who have ample incentives to avoid invoca
tion—will provide such guidance.
Conversely, the Court’s concern that police will face
“difficult decisions about an accused’s unclear intent” and
suffer the consequences of “ ‘guess[ing] wrong,’ ” ante, at 9–
10 (quoting Davis, 512 U. S., at 461), is misplaced. If a
suspect makes an ambiguous statement or engages in
conduct that creates uncertainty about his intent to invoke
his right, police can simply ask for clarification. See id., at
467 (Souter, J., concurring in judgment). It is hardly an
unreasonable burden for police to ask a suspect, for in
stance, “Do you want to talk to us?” The majority in Davis
Cite as: 560 U. S. ____ (2010) 21
SOTOMAYOR, J., dissenting
itself approved of this approach as protecting suspects’
rights while “minimiz[ing] the chance of a confession
[later] being suppressed.” Id., at 461. Given this straight
forward mechanism by which police can “scrupulously
hono[r]” a suspect’s right to silence, today’s clear
statement rule can only be seen as accepting “as tolerable
the certainty that some poorly expressed requests [to
remain silent] will be disregarded,” id., at 471 (opinion of
Souter, J.), without any countervailing benefit. Police may
well prefer not to seek clarification of an ambiguous
statement out of fear that a suspect will invoke his rights.
But “our system of justice is not founded on a fear that a
suspect will exercise his rights. ‘If the exercise of constitu
tional rights will thwart the effectiveness of a system of
law enforcement, then there is something very wrong with
that system.’ ” Burbine, 475 U. S., at 458 (STEVENS, J.,
dissenting) (quoting Escobedo v. Illinois, 378 U. S. 478,
490 (1964)).
The Court asserts in passing that treating ambiguous
statements or acts as an invocation of the right to silence
will only “ ‘marginally’ ” serve Miranda’s goals. Ante, at
10. Experience suggests the contrary. In the 16 years
since Davis was decided, ample evidence has accrued that
criminal suspects often use equivocal or colloquial lan
guage in attempting to invoke their right to silence. A
number of lower courts that have (erroneously, in my
view) imposed a clear-statement requirement for invoca
tion of the right to silence have rejected as ambiguous an
array of statements whose meaning might otherwise be
thought plain.9 At a minimum, these decisions suggest
——————
9 See United States v. Sherrod, 445 F. 3d 980, 982 (CA7 2006) (sus
pect’s statement “ ‘I’m not going to talk about nothin’ ’ ” was ambiguous,
“as much a taunt—even a provocation—as it [was] an invocation of the
right to remain silent”); Burket v. Angelone, 208 F. 3d 172, 200 (CA4
2000) (upholding on AEDPA review a state court’s conclusion that “ ‘I
just don’t think that I should say anything’ ” was not a clear request to
22 BERGHUIS v. THOMPKINS
SOTOMAYOR, J., dissenting
that differentiating “clear” from “ambiguous” statements
is often a subjective inquiry. Even if some of the cited
decisions are themselves in tension with Davis’ admoni
tion that a suspect need not “ ‘speak with the discrimina
tion of an Oxford don’ ” to invoke his rights, 512 U. S., at
459 (quoting id., at 476 (opinion of Souter, J.)), they dem
onstrate that today’s decision will significantly burden the
exercise of the right to silence. Notably, when a suspect
“understands his (expressed) wishes to have been ignored
. . . in contravention of the ‘rights’ just read to him by his
interrogator, he may well see further objection as futile
and confession (true or not) as the only way to end his
interrogation.” Id., at 472–473.
For these reasons, I believe a precautionary require
——————
remain silent); State v. Jackson, 107 Ohio St. 3d 300, 310, 2006–Ohio–
1, ¶¶96–98, 839 N. E. 2d 362, 373 (finding ambiguous “ ‘I don’t even like
talking about it man . . . I told you . . . what happened, man . . . I mean,
I don’t even want to, you know what I’m saying, discuss no more about
it, man’ ”); State v. Speed, 265 Kan. 26, 37–38, 961 P. 2d 13, 24 (1998)
(finding ambiguous “ ‘[a]nd since we’re not getting anywhere I just ask
you guys to go ahead and get this over with and go ahead and lock me
up and let me go and deal with Sedgwick County, I’m ready to go to
Sedgwick County, let’s go’ ”); State v. Markwardt, 2007 WI App 242, ¶1,
306 Wis. 2d 420, 424, 742 N. W. 2d 546, 548 (“ ‘Then put me in jail.
Just get me out of here. I don’t want to sit here anymore, alright? I’ve
been through enough today’ ” ambiguous because it could be construed
as part of “ ‘thrust-and-parry’ ” between suspect and interrogator); State
v. Deen, 42,403, pp. 2–4 (La. App. 4/27/07), 953 So. 2d 1057, 1058–1060
(“ ‘Okay, if you’re implying that I’ve done it, I wish to not say any more.
I’d like to be done with this. Cause that’s just ridiculous. I wish I’d . . .
don’t wish to answer any more questions’ ” ambiguous because condi
tioned on officer’s implication that suspect committed specific assault).
Courts have also construed statements as expressing a desire to remain
silent only about a particular subject. See, e.g., People v. Silva, 45 Cal.
3d 604, 629–630, 754 P. 2d 1070, 1083–1084 (1988) (“ ‘I really don’t
want to talk about that’ ” only conveyed unwillingness to discuss certain
subjects). See generally Strauss, The Sounds of Silence: Reconsidering
the Invocation of the Right to Remain Silent under Miranda, 17 Wm. &
Mary Bill Rights J. 773, 788–802 (2009) (surveying cases).
Cite as: 560 U. S. ____ (2010) 23
SOTOMAYOR, J., dissenting
ment that police “scrupulously hono[r]” a suspect’s right to
cut off questioning is a more faithful application of our
precedents than the Court’s awkward and needless exten
sion of Davis.
* * *
Today’s decision turns Miranda upside down. Criminal
suspects must now unambiguously invoke their right to
remain silent—which, counterintuitively, requires them to
speak. At the same time, suspects will be legally pre
sumed 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. Today’s broad new
rules are all the more unfortunate because they are un
necessary to the disposition of the case before us. I re
spectfully dissent.