E n efecto, esta corriente no sólo está directam ente afiliada al historicismo, sino que se presenta, a través de la im portancia

Even if Maryland v. Shatzer and Florida v. Powell can be viewed as making only modest changes to Miranda, Berghuis v. Thompkins,177 the last of the three Miranda opinions issued during the Court’s 2009 Term, is an entirely different story. After Thompkins was arrested and jailed on murder charges, he was interrogated for about three hours by two Southfield, Michigan police officers despite the fact that he had not waived his rights. He was first given Miranda warnings by one of the officers, Detective Helgert, but refused to sign a form indicating that he understood his rights.178 Helgert gave inconsistent testimony as to whether or not Thompkins indicated verbally that he understood his rights,179 although there was evidence that he was literate and familiar with English.180

At that point, the officers immediately began the interrogation process. They spent more than two hours trying to convince Thompkins that “this was his chance to explain his version of events.”181 The police “us[ed] the ostrich head in the sand metaphor,” telling Thompkins, “[y]ou need to help yourself, you need to put forth an explanation.”182 According to Detective Helgert, Thompkins was “[l]argely . . . silent” and “uncommunicative.”183

176

Cf. Petitioner’s Brief on the Merits, supra note

120, at 26 n.9 (analogizing other Supreme Court opinions that balanced the costs and benefits of suppressing confessions). For discussion of the Court’s use of a balancing test in other confession cases, see supra

notes 65–66 and accompanying text.

177_{130 S. Ct. 2250 (2010).} 178

The form, entitled “Notification of Constitutional Rights and Statement,” set out the

Miranda warnings and then asked, “Do you understand each of these rights that I have explained to you?,” followed by a space for the suspect’s signature. See Brief for Petitioner at 60, Thompkins, 130 S. Ct. 2250 (No. 08-1470).

179

See Thompkins, 130 S. Ct. at 2267 n.1 (Sotomayor, J., dissenting).

180_{At Helgert’s request, Thompkins read one of the warnings on the form aloud. See} Thompkins, 130 S. Ct. at 2256.

181

Joint Appendix at 10a, Thompkins, 130 S. Ct. 2250 (No. 08-1470) (testimony of Detective Helgert).

182

Id. at 150a.

183

He “sat there and listened” and “spent a lot of his time . . . simply holding his head looking down.”184 He made eye contact only a “few times,” in response to Helgert’s request that Thompkins “look at me and pay attention.”185 Helgert described the conversation as “very, very one-sided,” “nearly a monologue,” with Thompkins speaking or nodding his head only “very sporadically.”186 When he did speak, Thompkins said only “a word or two,” “[a] ‘yeah’, or a ‘no’, or ‘I don’t know.’”187 The only other words Thompkins uttered were that he “didn’t want a peppermint” the police offered to him and that “the chair that he was sitting in was hard.”188

After about two hours and forty-five minutes, Detective Helgert decided to “take a different tac[k], . . . a spiritual tac[k],”189 and asked Thompkins whether he believed in God. Thompkins replied, “Yes,” and his eyes “well[ed] up with tears.”190 The officer followed up by inquiring whether Thompkins prayed to God, and Thompkins again answered, “Yes.” Finally, Helgert asked, “Have you prayed to God to forgive you for shooting that boy down?”191 For the third time, Thompkins responded, “Yes.” He said nothing further other than “I ain’t writing nothing down,”192 and the interrogation session ended approximately fifteen minutes later.193

Rejecting Thompkins’s argument that his incriminating statement was taken in violation of Miranda, the Supreme Court, in a five-to-four opinion, concluded both that Thompkins never invoked his right to silence and that he impliedly waived that right. The decision broke down into five separate

184

Id. at 22a, 152a.

185

Id. at 11a, 149a.

186

Id. at 10a, 17a, 9a.

187_{Id. at 23a.} 188 Id. at 152a. 189 Id. at 10a–11a. 190 Id. at 11a. 191 Id. at 20a. 192 Id. at 11a. 193

See Thompkins, 130 S. Ct. at 2257. The Court did not deny that Thompkins was subjected to interrogation, repeatedly referring to the session as “the interrogation.” See, e.g., id. at 2256–57, 2262–63. Moreover, the detectives used classic interrogation techniques, which include “focusing [suspects’] attention on the importance of telling [their] story,” Leo & White, supra note 22, at 435, thereby “distorting suspects’ perceptions of their choices by leading them to believe that they will benefit by making a statement.” Weisselberg, supra note 149, at 1537–38; see also Joint Appendix, supra note 181, at 15a, 20a (testimony of Detective Helgert) (acknowledging that the officers “did enter into an interview mode” after Thompkins refused to sign the rights form, and then brought up religion on the theory that Thompkins would likely be “[m]ore vulnerable to interrogation” if he had “a deep faith”). In any event, Thompkins’s incriminating statement came in response to a direct investigative question, which clearly satisfied the “express questioning” portion of the definition of “interrogation” set forth in Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980).

elements. In the invocation discussion, Justice Kennedy’s opinion for the majority determined, first, that the unambiguous invocation requirement applies to suspects who wish to invoke their right to remain silent. Second, the majority impliedly refused to limit this clear invocation rule to those who make a preliminary waiver of their rights. And third, the Court held that Thompkins did not invoke his right to silence by remaining silent. In the waiver discussion, the Court found that Thompkins impliedly waived

Miranda by failing to invoke his rights and then “making an uncoerced

statement to the police.”194 Finally, the Court upheld the concept of pre- waiver interrogation, refusing to mandate that police secure a waiver of

Miranda before they begin interrogating a suspect.195

Although the Court’s invocation analysis ratified the views adopted by some lower courts, its discussion of implied waiver and pre-waiver interrogation effected sweeping changes in the law, deviating from or at least dramatically expanding Supreme Court precedent. Moreover, none of the five components of the Court’s opinion can be reconciled with a pragmatic approach to Miranda. Together, they allow law enforcement officials to do a complete end run around Miranda, reducing the Warren Court’s decision to a formalistic requirement that warnings be read and otherwise reinstating the voluntariness due process test.