'Law and Order' Exception to Miranda Rule

By Kenneth Jost
Supreme Court Editor, CQ Press
      “Law and Order” may have ended its 20-year run, but Briscoe, Curtis, and all the other cops and prosecutors on the compelling TV series can rest content after a Supreme Court decision on Tuesday [June 1] that eases the rule on police interrogation established in the landmark Miranda case. By a 5-4 vote, the justices gave the green light to the kind of subtle coercion that “Law and Order” detectives still practice in nightly reruns and that Miranda had sought to prevent.
      Like many of the perps on “Law and Order,” Van Chester Thompkins had nothing to say while two detectives from Southfield, Michigan, questioned him on Feb. 22, 2001, about a drive-by shooting outside a strip mall a year earlier. In Thompkin’s case, he sat on a hard chair in an eight-foot by ten-foot interrogation room for three hours — long enough for three episodes — after refusing to sign a waiver of his Miranda right to remain silent.
      For two hours and 45 minutes, Thompkins said nothing more substantial than to complain about the chair and to decline Detective Christopher Helgert’s offer of a mint. In the real world, one would see that Thompkins did not want to talk. But, at the cop house, a different rule applies. Helgert kept up his monologue and finally figured out Thompkins’ weak spot. “Do you believe in God?” he asked. Thompkins said yes. “Do you pray?” Again, Thompkins said yes. “Do you pray to God to forgive you for shooting that boy down?” Helgert asked. Tearing up, Thompkins answered in one word: “Yes.”
      As a district attorney in California in the 1930s, Earl Warren had experience with old-style police interrogations: slapping suspects around, and the like. As chief justice, he learned that police had adopted other techniques. “The modern practice of in-custody interrogation is psychologically, rather than physically, oriented,” Warren wrote in the 1966 Miranda decision. Police manuals, Warren explained, tell officers to isolate the suspect, display confidence, assume the suspect’s guilt, and get him simply to elaborate on what the police pretend already to know.
      The Supreme Court created the Miranda rule to combat what Warren aptly described as the inherently coercive nature of that kind of interrogation. Everyone is now familiar with the recitation of Miranda rights: the right to remain silent, the right to cut off questioning, the right to have a lawyer, and the right to have the lawyer present during interrogation. To safeguard those rights, the court said that police cannot use a suspect’s statement unless they show that a suspect knowingly and intelligently waived those rights. And a valid waiver could not be shown, the court said, simply by the fact that a confession was in fact obtained.
      In Thompkins’ case, Michigan courts drove right by those waiver rules. Thompkins’ statement was introduced and, in a close case, helped the prosecution get a conviction. On appeal, the Michigan courts said, counterintuitively, that Thompkins had to speak up in order to assert his right to remain silent. And, in seeming contradiction, the state courts said that Thompkins had waived that right with three one-word answers uttered after nearly three hours of interrogation.
      The Supreme Court agreed. “The record in this case shows that Thompkins waived his right to remain silent,” Justice Anthony M. Kennedy wrote for the Roberts Court’s conservative majority in Berghuis v. Thompkins. The suspect’s one-word answer about praying, Kennedy continued, “was sufficient to show a course of conduct indicating waiver.” True, Kennedy conceded, Thompkins sat in a straight-backed chair for three hours, but — overlooking Miranda — the justice said there is “no authority” for the proposition that an interrogation under these circumstances is “inherently coercive.”
      For the four liberal dissenters, Justice Sonia Sotomayor, a former local prosecutor, labeled the decision “a substantial retreat from the protection against compelled self-incrimination” established by Miranda. That decision places a “heavy burden” on the prosecution to show that a suspect has waived the right to remain silent, she explained, and it was “objectively unreasonable” to conclude that the prosecution had shown a waiver in Thompkins’ case on the basis of “three one-word answers, following 2 hours and 45 minutes of silence . . . .”
      Sotomayor also criticized the court’s new rule that a suspect must make a “clear statement” in order to assert a right to remain silent. “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,” she wrote.
      For the majority, Kennedy suggested that the “clear statement” rule would not affect many cases. In a footnote, however, Sotomayor listed a raft of lower court decisions holding that suspects had not invoked a right to silence despite “an array of statements whose meaning might otherwise be thought plain.” Like the suspect who said, “I just don’t think I should say anything,” but his later statements admitted anyway.
      The new decision is not the first retreat from Miranda— and is unlikely to be the last. Yes, Miranda is still good law. But two decades of “Law and Order” show that fictional police know how to work around it. And the Roberts Court is OK with that in real life.