knight: meditations on post-thompkins invocations

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Meditations on Post‐Thompkins Invocations: A Model of “Clarity”

JEFFREY D. KNIGHT*

ABSTRACT

Today, there are significant, unanswered questions lingering in the murky waters of Fifth Amendment “right to remain silent” invocation law. One such question asks to what extent does the United States Supreme Court’s “unequivocal statement” rule, articulated in Berghuis v. Thompkins, affect Miranda’s mandate that an invocation of the “right to remain silent” may be made “in any manner.” By interpreting Thompkins’s “clear statement” rule to encompass only oral communications, several other vital facets of human expression will be ignored. Furthermore, such a narrow rule would unfairly prejudice a vast population of Americans who lack the ability to orate with laser precision. This result rips at the fabric of our democracy, as it erodes the institutional integrity of a system of justice intended, unequivocally, to protect the constitutional rights of its people. These rights include the Fifth Amendment right to remain silent. In light of that, this Note argues that future courts should read Thompkins’s “unequivocal statement” rule expansively, such that both (1) a relevant context and (2) nonverbal, communicative conduct necessarily enter into the invocation calculus. This Note further advocates that, as future courts encounter Thompkins questions, they should emulate the fine methods employed by the SJC in Commonwealth v. Clarke. Finally, this Note argues that future courts should treat Thompkins’s “unequivocal statement” rule in a manner consistent with the now longstanding treatment of a “statement” in hearsay law, defined by Rule 801 (a) of the Federal Rules of Evidence.

* Candidate for Juris Doctor, New England Law | Boston (2013). B.A., Philosophy, University

of Florida (2010). I would like to thank my mother, Debra Knight, first and foremost, for her

unending support. I would also like to thank the entire staff of Volume 47 of the New England

Law Review for their insightful suggestions and diligent editing, all of which contributed so

much to this article. Finally, I would like to thank the law library staff of New England Law |

Boston, especially Brian Flaherty, for the substantial assistance they provide our Review year

in and year out. I dedicate this, my first publication, to my loving grandma, Judith Herman.

While you cannot anymore say it, I hear.


218 New England Law Review v. 47 | 217

INTRODUCTION

t has come to this.1 Vlad, a criminal suspect, lays his tightly crossed arms atop his chest.2 His right leg nervously twitches as a disheveled veteran police detective from the local precinct observes him ever so

closely, while the officer slowly paces the vastly under‐ventilated room.3 Finally, while pressing his knuckles to the cold steel surface separating him from his suspect, the detective asks, “why did you do it, Vlad?” Vlad sharply replies “Do what?” The officer, now with a discerning look, asks “Did Bo confront you before you pulled the Nine? Did you fire in self‐defense?”4 Confused, anxious, and absolutely terrified, Vlad struggles to sink into his stiff seat and pushes his left hand forward as if intending to signal the halt of an ocean liner.5 He then shakes his head from side to side and takes his forefinger and thumb, pinching them together and draws them laterally across his lips from one corner to the other.6 The detective, unshaken, continues his interrogation.7

What has just occurred? It seemed fairly clear that Vlad wanted nothing to do with his interrogator’s line of questioning. However, the officer just brushed this off and charged full‐steam ahead with his interrogation. Is that really legal—I mean, what about Vlad’s Fifth Amendment right to remain silent? Consider this scenario. The same facts as before, but this time in response to the detective’s questions, Vlad boisterously replies “I am done,” slapping both of his hands on the table in front of him.8 Even better—let us add some background facts. Now assume that this very same disheveled detective had already interrogated Vlad on this day, and in each of the three prior interrogations, Vlad responded to the officer’s questions by stating “I am invoking my right to remain silent,” followed by “read my lips,” and in a jovial voice, “I am done.”9

While it might not immediately appear as such, fleshing out these factual variations on expressive conduct is of immense legal import. Each of the above variations on Vlad’s response to the detective seeks to

1 This page exclusively contains the author’s own original, fictional hypotheticals; the

following footnotes, however, attempt to analogize to several well‐documented behaviors of

criminal suspects exhibited during the course of custodial interrogation. 2 Cf. JULIUS FAST, BODY LANGUAGE 147 (Simon & Schuster eds., 1971). 3 Cf. David E. Zulawski & Douglas E. Wicklander, Practical Aspects of Interview and

Interrogation 37 (2d ed. 2001). 4 See generally FRED E. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS 171‐76

(5th ed. 2013) [hereinafter INBAU, CRIMINAL INTERROGATION AND CONFESSION]. 5 Cf. F. INBAU & J. REID, LIE DETECTION AND CRIMINAL INTERROGATION (3d ed. 1953). 6 See generally Commonwealth v. Clarke, 960 N.E.2d 306, 313‐14 (Mass. 2012). 7 See, e.g., id. at 312. 8 See, e.g., Munson v. State, 123 P.3d 1042, 1054 (Alaska 2005). 9 See, e.g., Hurd v. Terhune, 619 F.3d 1080, 1088‐89 (9th Cir. 2010).

I


2012 Medi ta t ions on Post ‐Thompkins Invocat ions 219

highlight the grey areas found in today’s Fifth Amendment invocation law.10 Such issues concern whether American courts should take account of the context in which a suspect speaks or acts, the character of nonverbal statements, and the effect of volume and tone on statement clarity.11 Framed more specifically, the paramount question ripe for resolution is, during an interrogation what conduct must a suspect perform in order to effectively invoke his or her Fifth Amendment right to remain silent? On this topic, the United States Supreme Court (“Supreme Court”) has recently spoken.12 The Thompkins Court highlighted that invocation of one’s right to remain silent requires the making of an unequivocal statement.13 However, the Supreme Court failed to clarify the boundaries of this “unequivocal statement” standard.14 Thus, without the Court’s explicit guidance in this area, it becomes ever so critical to peer closely into the myriad of ways in which one may clearly communicate his or her desire to stay silent.15

In 2010, the Court in Berghuis v. Thompkins extended the holding in Davis v. United States to cover invocations of the right to remain silent by requiring that all such invocations be made unequivocally.16 However, the Supreme Court continues to be less than candid about explaining the boundaries of Thompkins’s bright‐line rule.17 Beyond this single analytical infirmity, to a large degree, reactions to Thompkins have been overwhelmingly critical.18

10 Compare Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010) (requiring an

“unambiguous statement[]”), and People v. Manzo, 121 Cal. Rptr. 3d 207, 219 (Ct. App. 2011),

abrogated by People v. Manzo, 251 P.3d 942 (Cal. 2011) (“A suspect is not required to use

specific words . . . to unambiguously invoke. . . . [and] if the words used and conduct displayed

by a suspect unambiguously show[s] his or her intent to invoke the Fifth . . . then all

interrogation must cease” (emphasis added)), with Commonwealth v. Clarke, 960 N.E.2d 306,

315 (Mass. 2012) (holding that a mere lateral “headshake” was sufficiently clear for the suspect

to have effectively invoked his right to remain silent). 11 See infra Part 0. 12 See Thompkins, 130 S. Ct. at 2260. 13 Id. 14 See infra Part 0. 15 See infra Part 0. 16 See Thompkins, 130 S. Ct. at 2260 (“[T]here is no principled reason to adopt different

standards for determining when an accused has invoked the Miranda right to remain silent

and the Miranda right to counsel at issue in Davis.”). 17 See id. (demonstrating that the Supreme Court allows clear, verbal statements to suffice

as “unequivocal,” but leaving unanswered whether a statement’s being verbal is a necessary

condition under which an “unambiguous statement” is accomplished). 18 See, e.g., Jaime M. Rogers, Comment, You Have the Right to Remain Silent . . . Sort of:

Berghuis v. Thompkins, the Social Costs of a Clear Statement Rule, and the Need for Amending the

Miranda Warnings, 16 ROGER WILLIAMS U. L. REV. 723, 729‐50 (2011); George M. Dery III, Do



This Note will argue that Thompkins’s bright‐line should be drawn with an eye toward the spirit of the Supreme Judicial Court (“SJC”) holding in Clarke,19 and the body of Miranda, with its “in any manner” language.20 In addition, future courts should emulate the approach taken with hearsay, defined by Rule 801(a) of the Federal Rules of Evidence,21 to Thompkins’s requirement of a “statement.”22 To accomplish this, the kind of expressive formalism exhibited by the Court in Thompkins23 should not be read so narrowly as to eviscerate Miranda’s purposefully permissive invocation threshold.24 Instead, this Note argues that Thompkins should be read as requiring a considerably high level of clarity, but in so doing, that elevated standard should not have a preclusive effect on (1) framing language and conduct in context, and (2) the consideration of the real potential that non‐verbal communicative conduct harbors to provide a crystal‐clear picture of human expression.

In Part I, this Note will briefly summarize the decision in Thompkins as well as provide an abbreviated tour of the seminal material in this area of law. Part II will highlight and evaluate several distinct types of communicative conduct and determine which of their characteristics, if any, are likely to impact statement clarity. Part III will argue that statement clarity ought to be determined by reference to a relevant context. In Part IV, this Note argues that some forms of non‐verbal, expressive behavior should be analyzed under the Thompkins framework, and the SJC’s approach in Commonwealth v. Clarke is a positive example of how such non‐verbal “statements” can be properly entered into the invocation calculus. Finally, Part V of this Note will encourage future courts to interpret the “unequivocal statement” rule from Thompkins in a way consistent with the definitional approach taken by Rule 801(a) of the Federal Rules of Evidence.

You Believe in Miranda? The Supreme Court Reveals Its Doubts in Berghuis v. Thompkins by

Paradoxically Ruling That Suspects Can Only Invoke Their Right to Remain Silent by Speaking, 21

GEO. MASON U. C.R. L.J. 407, 407, 427 (2011) [hereinafter Dery III]. 19 Commonwealth v. Clarke, 960 N.E.2d 306 (Mass. 2012). 20 Miranda v. Arizona, 384 U.S. 436, 444‐45 (1966). 21 See FED. R. EVID. 801(a) (defining a “statement” as “an oral or written assertion, or . . .

nonverbal conduct, if it is intended by the person as an assertion”). 22 Thompkins, 130 S. Ct. at 2260. 23 See Dery III, supra note 18, at 427 (quoting Davis v. United States, 512 U.S. 452, 469 (1994)

(Souter, J., concurring)). 24 See Rogers, supra note 18, at 730‐31.



I. The Right to Remain Silent: Invocation by “Unequivocal Statement”

A. A Brief Historical Interlude: From Miranda to Davis

Through a now more than half‐century‐old decision put forth by five Supreme Court Justices,25 along with decades of crime‐fighting television programs,26 the Miranda warnings (“the warnings”) made their way to the American public.27 There is no present need to engage in a copy‐and‐paste recitation of the warnings.28 Suffice it to say, among other rights of which police officials must warn criminal suspects, police must inform those suspects of their Fifth Amendment right to remain silent (“right to silence”).29 The primary purpose of the warnings is to educate criminal suspects or arrestees, who may not otherwise be aware of the rights vested in them by the United States Constitution (“Constitution”).30 To many people, Miranda represents one of the brightest stars still shining in the great constellation that is our American democracy.31 To others, Miranda seems more like a black hole, overburdening the legitimate efforts of police departments nationwide.32 The four dissenters, no doubt, were fearless

25 Justices Earl Warren, Hugo Black, William Douglas, William Brennan, and Abe Fortas

comprised the majority vote in Miranda v. Arizona. See 384 U.S. 436, 499, 504, 526 (1966). 26 Anthony X. McDermott & H. Mitchell Caldwell, Did He or Didn’t He? The Effect of

Dickerson on the Post‐Waiver Invocation Equation, 69 U. CIN. L. REV. 863, 867‐68 & n.24 (2001)

(citing LIVA BAKER, MIRANDA: CRIME, LAW AND POLITICS 404 (1983)). 27 See Dickerson v. United States, 530 U.S. 428, 443 (2000) (“Miranda has become . . . part of

our national culture.”). 28 However, to read those famous, oft‐spoken words in print one need not look too far. See,

e.g., Rogers, supra note 18, at 725; David S. Romantz, “You Have the Right to Remain Silent”: A

Case for the Use of Silence as Substantive Proof of the Criminal Defendant’s Guilt, 38 IND. L. REV. 1, 2

(2005). 29 Miranda, 384 U.S. at 479. 30 Id. at 468. 31 See Tom Gibbons & Jim Casey, Ed Meese’s War on Miranda Draws Scant Support, CHI.

SUN‐TIMES, Feb. 17, 1987, at 41. 32 Former President Nixon was less than pleased with the Miranda Court for its role in

what Nixon considered the stymieing of crime‐fighting efforts in America. See Patrick A.

Malone, “You Have the Right to Remain Silent”: Miranda After Twenty Years (1986), in THE

MIRANDA DEBATE: LAW, JUSTICE, AND POLICING 75 (Richard A. Leo & George C. Thomas III

eds., 1998) [hereinafter LEO & THOMAS, THE MIRANDA DEBATE]. Nixon was so displeased that

he vowed to pack the Supreme Court with those jurists whom he could trust would quickly

move to abrogate Miranda. Id. In fact, Congress was displeased to a similar extent. See

Omnibus Crime Control and Safe Streets Act of 1968 § 701(a), 18 U.S.C. § 3501 (2006)

(purporting to abrogate the effect of Miranda), invalidated by Dickerson, 530 U.S. at 432; see also

LEO & THOMAS, THE MIRANDA DEBATE, supra note 32. Regardless, the Court in Dickerson

clarified Miranda’s constitutional underpinning and immunized Miranda from any

congressional attacks, except those accomplished by constitutional amendment. Dickerson, 530



leaders of the latter camp.33

General knowledge of both one’s right to silence and the origin of that right is vitally important to lawyers and non‐lawyers; yet, the Fifth Amendment right to silence does little good for an ordinary criminal suspect without an appreciation for how the right may be effectively invoked.34 The invocation of the right to silence, quite surprisingly, often takes up its very own chapter in many books and treatises on criminal procedure.35 Who would have thought that asserting a right to say nothing would require such intense study?36 This notion that the invocation of the right to silence portends some complex formula has long been rejected by American courts—even well before Miranda was decided.37 Historically, Miranda has been read as embodying a rather permissive invocation threshold.38 This result has been justified, in large part, by pointing to the Miranda Court’s great concern for vindicating the ability of criminal suspects to, albeit momentarily,39 resist the great coercive powers inherent in custodial interrogation.40 In fact, the Miranda Court directed that if “the

U.S. at 432. 33 See generally Miranda, 384 U.S. at 499‐545 (describing how the majority’s ruling—

requiring individuals to be warned of their rights when subjected to custodial interrogation—

will overburden police departments nationwide). 34 See generally ALAN M. DERSHOWITZ, IS THERE A RIGHT TO REMAIN SILENT?: COERCIVE

INTERROGATION AND THE FIFTH AMENDMENT AFTER 9/11 94‐96 (Oxford Univ. Press ed., 2008)

(distinguishing the Fifth Amendment privilege “as symbol” from that same privilege “in

action”). Worse even, are suspects who understand that they possess such a right, and that its

genesis lies in the Constitution, but are under the false belief that by merely remaining silent,

they will have made an effective invocation. Id. at 95. 35 See, e.g., STEVEN M. SALKY, THE PRIVILEGE OF SILENCE: FIFTH AMENDMENT PROTECTIONS

AGAINST SELF‐INCRIMINATION 89 (ABA Criminal Justice Section 1st ed., 2009) [hereinafter

SALKY, THE PRIVILEGE OF SILENCE] (identifying a particular chapter, titled “How the Right May

Be Asserted”). 36 See Whys, Comment to Supreme Court: Suspects Must Assert Right to Silence,

USATODAY.COM (June 2, 2010, 12:49 PM), http://www.usatoday.com/news/washington/

judicial/2010‐06‐01‐supreme‐court‐miranda‐rights_N.htm. The comment responded, jokingly,

to the counter‐intuitive notion that one’s silence is not a clear enough indication of one’s

intention to invoke his or her right to do just that, with “[p]lease allow me to state for the

record, I hereby retain the right to exercise my rights at any time with or without notice to law

enforcement. I hereby state that when I do not speak, I am exercising my right not to speak.” 37 See Emspak v. United States, 349 U.S. 190, 194 (1955) (identifying that there is no

“ritualistic formula or talismanic phrase” associated with invoking the right to silence). 38 See Miranda, 384 U.S. at 436, 473‐75. 39 Even when a criminal suspect is successful in invoking his or her Fifth Amendment

right to silence, the law only requires police to “scrupulously honor” such an invocation

before re‐approaching the same suspect with further interrogation. Michigan v. Mosley, 423

U.S. 96, 96 (1975). 40 See Charles D. Weisselberg, Mourning Miranda, 96 CALIF. L. REV. 1519, 1537 (2008)



individual indicates in any manner . . . that he wishes to remain silent, the interrogation must cease.”41 In light of that, some federal courts have viewed a suspect’s general refusal to cooperate during an interrogation as his or her invocation of the right to remain silent.42

The requirement of a clear statement predates Thompkins; the test was established in and originally applied to the “right to counsel” line of cases, beginning with the Supreme Court decision in Davis v. United States.43 In Davis, the Supreme Court ruled that an invocation of one’s right to counsel must be made by an “unequivocal statement.”44 Among the states and in legal scholarship—up until only a few years ago—there was great disagreement concerning both the propriety of Davis and its application to the right to silence context.45 Yet, in 2010, the Supreme Court finally broke its silence with Thompkins.46

Justice Kennedy wrote for the majority in Berghuis v. Thompkins, holding that where a criminal suspect has been adequately apprised of his Miranda rights and failed to invoke his right to silence by making an unequivocal statement in the face of custodial interrogation, no such right could be asserted.47 The Thompkins Court, borrowing Davis’s bright‐line rule, held that a valid invocation of the right to remain silent must be made by “unequivocal statement.”48

In extending Davis to “the right to remain silent” context, the Supreme Court noted, “there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis.”49 Many critics regard this rationale as simply error‐ridden.50 Those who understand the

(“[T]he Miranda Court concluded that custodial interrogations contain inherently compelling

pressures that undermine suspectsʹ ability to make a free and informed choice whether to

speak.”). 41 Miranda, 384 U.S. at 473‐74 (emphasis added). 42 See, e.g., United States v. Rambo, 365 F.3d 906, 910 (10th Cir. 2004). 43 512 U.S. 452, 459 (1994). 44 Id. 45 See WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE: MIRANDA: WAIVER OF RIGHTS, 2

CRIM. PROC. § 6.9(g) n.191 (3d ed. 2011); Wayne D. Holly, Ambiguous Invocations of the Right to

Remain Silent: A Post‐Davis Analysis and Proposal, 29 SETON HALL L. REV. 558, 562‐63 n.24 (1998)

(offering an impressive taxonomy of positions taken by different jurisdictions, pre‐Thompkins,

concerning the extension of Davis to “the right to silence” context). 46 Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010). 47 Id. 48 Id. 49 Id. 50 See, e.g., Michael L. Vander Giessen, Berghuis v. Thompkins: The Continued Erosion of

Miranda’s Protections, 46 GONZ. L. REV. 189, 199 (2010) (“[T]his statement by the Court



coercive role that a slippery‐slope paradigm plays in a common‐law system of adjudication51 would do no more than give an affirming nod to the unjustifiable reliance that the majority in Berghuis v. Thompkins placed on the Supreme Court’s earlier ruling in Davis.52 In 1994—some would say—the first slippery step was taken.53 Nevertheless, today, Thompkins provides the standard for gauging whether a criminal suspect’s “statement” was sufficiently “unequivocal” to merit the protections of the Fifth Amendment.54

B. The Facts in Thompkins

Police in Ohio found the defendant in Thompkins one year after the commission of a Michigan murder for which he was a suspect and from which he was believed to have immediately fled.55 Ohio police arrested the defendant; he was read Miranda warnings and police from the jurisdiction in which the defendant was suspected of murder arrived in Ohio to conduct the interrogation.56 During the interrogation, the defendant remained almost completely silent for nearly three hours.57 He responded to police questions with occasional eye‐contact and head nods, he refused a peppermint, and expressed his displeasure over the lack of comfort provided the suspect by what has been described as “a school‐room type chair.”58 After about two hours and forty‐five minutes, the defendant did say something in response to a question regarding his religious faith.59 The interrogator asked the defendant, “Do you pray to God to forgive you for shooting that boy down?”60 The defendant then replied “yes.”61

misinterpreted Davis, which justified its [holding] . . . based in part on the additional

protections available to suspects under Edwards. Indeed, there is good reason for distinct

standards of invocation because such is consistent with the different effects produced by

invoking each of the two rights.”); Holly, supra note 45, at 572‐74. 51 See, e.g., Eugene Volokh, The Mechanisms of the Slippery Slope, 116 HARV. L. REV. 1026,

1083 (2003) (suggesting that court decisions in a common‐law system often lead to more

expansive decisions in the future, leading to a “slippery slope” phenomenon). 52 See Rogers, supra note 18, at 731. 53 See, e.g., Jane M. Faulkner, So You Kinda, Sorta, Think You Might Need a Lawyer?:

Ambiguous Requests for Counsel After Davis v. United States, 49 ARK. L. REV. 275, 295 (1996)

(describing how Davis had considerable impact on Fifth Amendment jurisprudence). 54 Thompkins, 130 S. Ct. at 2260. 55 Id. 56 Id. 57 Id. 58 Id. at 2256‐57; see also Brief for Respondent at 5, Thompkins, 130 S. Ct. at 2250 (No. 08‐

1470). 59 Thompkins, 130 S. Ct. at 2257. 60 Id.



At trial, the defendant was unsuccessful in an effort to suppress his inculpatory statement made to interrogating officers.62 Thompkins’s appeal was largely predicated upon the failure of the trial court to suppress the defendant’s verbal response of “yes” to police.63 The theory employed by the defendant was that Thompkins’s nearly three hours of silence, alone, constituted an invocation of his right to remain silent.64 Thus, the defendant argued, any of his post‐invocation statements that were admitted into evidence against him violated the defendant’s Fifth Amendment right to remain silent.65 At the federal level, the defendant was unsuccessful with his Habeas Petition filed with the U.S. District Court for the Eastern District of Michigan.66 In 2008, the Sixth Circuit U.S. Court of Appeals then reversed the District Court.67 The Supreme Court would later grant certiorari to review the Sixth Circuit’s judgment.68

C. Thompkins’s Objective Test

The Supreme Court in Thompkins held that an invocation of the right to remain silent must be made by an “unambiguous statement.”69 While courts and scholars have wrestled with this bright‐line rule, the fact that Thompkins reflects an objective standard seems to be a point on which most agree.70 Justice Kennedy borrowed some language from Davis: “[a] requirement of an unambiguous invocation . . . 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.”71 Thompkins’s objective standard is not met solely at the occurrence of a “meeting of the minds” between an interrogator and suspect, such as where an interrogator subjectively understands a suspect’s behavior as intended by that suspect as a Fifth Amendment invocation.72 The objective standard requires some objective indication that a reasonable third party, when confronted with

61 Id. 62 Id. 63 Id. at 2258. 64 See id. at 2257; see also Brief for Respondent, supra note 58, at 16‐17. 65 Thompkins, 130 S. Ct. at 2258. 66 Thompkins v. Berghuis, No. 05‐CV‐70188‐DT, 2006 WL 2811303, at *1 (E.D. Mich. Sept.

28, 2006). 67 Thompkins v. Berghuis, 547 F.3d 572, 575 (6th Cir. 2008). 68 Berghuis v. Thompkins, 130 S. Ct. 48 (2009). 69 Thompkins, 130 S. Ct. at 2260. 70 VanderGeissen, supra note 58, at 200.

71 Id. (quoting Davis v. United States, 512 U.S. 452, 458‐59 (1994)) (internal quotation marks

omitted). 72 See id.



the circumstances of the suspect’s putative invocation, “can reasonably . . . construe[] as being an expression of a desire to remain silent.”73

II. What Communicative Conduct Satisfies the Thompkins Standard for Clarity?

A. The Requisite Quantum of Clarity for Verbal Statements

The easy case presents itself where a suspect is exceptionally clear about his present desire to invoke his right to silence.74 Yet, a rather compelling argument has been made that a “clear statement” rule operates unfairly, because the vast majority of criminal suspects do not have the requisite aptitude to orate “with the discrimination of an Oxford Don.”75 Consider from the following excerpt, whether the run‐of‐the‐mill, low‐income, undereducated criminal suspect can reasonably be expected to articulate his or her Fifth Amendment invocation with the level of clarity offered by Bernard Ebbers when he appeared before the House Financial Services Committee in 2002.

I have not been advised of the specific conduct of mine that is

being called into question . . . I understand that preliminary

statements can be taken out of context . . . . When all of the

activities at WorldCom are fairly aired, and when I get the

opportunity, and I am very much looking forward to it, to

explain my actions in a setting that will not compromise my

ability to defend myself in the legal proceedings arising out of the

recent events, I believe that no one will conclude that I engaged

in any criminal or fraudulent conduct during my tenure at

WorldCom.

Until that time, however, I must respectfully decline to answer

questions . . . on the basis of my [F]ifth [A]mendment privilege.76

It seems unlikely that most criminal suspects could mirror the clarity,

73 Harvey Gee, In Order to Be Silent, You must First Speak: The Supreme Court Extends Davis’s

Clarity Requirement to the Right to Remain Silent in Berghuis v. Thompkins, 44 J. MARSHALL L.

REV. 423, 448 (2011). 74 See Thompkins, 130 S. Ct. at 2260 (citing Michigan v. Mosley, 423 U.S. 96, 103‐04 (1975)). 75 See Davis, 512 U.S. at 476 (Souter, J., concurring); Rogers, supra note 18, at 740‐42

(arguing that many arrestees are undereducated and therefore “unlikely to have a sound

understanding of their rights . . . and may also lack the capacity to formulate and deliver an

unambiguous invocation”). 76 Wrong Numbers: The Accounting Problems at WorldCom: Hearing Before the Comm. on Fin.

Servs., 107th Cong. 21 (2002) (statement of Bernard Ebbers, Chief Executive Officer,

WorldCom), available at http://www.gpo.gov/fdsys/pkg/CHRG‐107hhrg83079/pdf/CHRG‐

107hhrg83079.pdf.



which Mr. Ebbers demonstrated in this above‐quoted excerpt.77 In light of that, historically, courts have adjudged suspects’ statements to be sufficiently unequivocal in what could be seen as “close calls.”78 Ultimately though, the real difficulty exists in quantifying the middle ground between Thompkins’s requirement of an unequivocal statement and the idea expressed by the Ninth Circuit in Arnold v. Runnels that no “talismanic phrase” must be made for a suspect to invoke the right to silence.79 In synthesizing the relevant case law, two distinct groupings of verbal statements surface: (1) direct, assertive statements80 and (2) statements posed in the form of a question.81

1. Direct, Assertive, and Orally‐Performed Statements

Over the years, most courts have seemed overwhelmingly more inclined to find that a suspect’s statement to police contained the requisite unequivocality where the statement was both direct and assertive.82 A direct, assertive oral statement tends to relay the confidence of the speaker

77 See Davis, 512 U.S. at 469‐70 (Souter, J., concurring); Tom Chen, Davis v. United States:

“Maybe I Should Talk to a Lawyer” Means Maybe Miranda is Unraveling, 23 PEPP. L. REV. 607, 643

(1996). 78 See, e.g., Christopher v. Florida, 824 F.2d 836, 842‐43 (11th Cir. 1987) (holding

unambiguous invocation where the suspect said “I got nothing else to say”); Munson v. State,

123 P.3d 1042, 1054 (Alaska 2005) (holding that a suspect invoked his Fifth Amendment right

when he said “[w]ell, I’m done talking then”); People v. Arroya, 988 P.2d 1124, 1128 (Colo.

1999) (holding “I don’t wanna talk no more” sufficient for the suspect to invoke his Fifth

Amendment right); State v. Klimczak, 268 A.2d 372, 373 (Conn. 1970) (holding unequivocal a

suspect’s statement of “[d]on’t bother me”). 79 Compare Thompkins, 130 S. Ct. at 2260 (stating the suspect failed to invoke his right to

silence by not making any “simple, unambiguous statement”), with Arnold v. Runnels, 421

F.3d 859, 866 (9th Cir. 2005) (holding the Fifth Amendment right to silence threshold does not

require a criminal suspect to “intone[] some talismanic phrase”). 80 See infra Part II.A.1. 81 See infra Part II.A.2. 82 See, e.g., Hurd v. Terhune, 619 F.3d 1080, 1088‐89 (9th Cir. 2010) (holding a criminal

suspect’s statements of “I don’t want to do that,” “No,” “I can’t,” and “I don’t want to act it

out” were sufficiently unambiguous); United States v. Arballo‐Villa, No. CR 09‐1539‐TUC‐

DCB(HCE), 2010 WL 3947330, at *5 (D. Ariz. Sept. 14, 2010) (holding that defendant’s

response—when asked by police whether he had anything else to say—of “No. Nothing

further. I have nothing to say . . . .” was unambiguous and unequivocal). It would behoove a

criminal suspect or arrestee who intends to invoke his or her right to silence to, at the very

least, speak in the presence of others. Cf. State v. Diaz‐Bridges, 34 A.3d 748, 764 (N.J. 2012)

(indicating that no invocation was found where criminal suspect stated clearly that he wished

to go home, but did so while alone in an interrogation room). Cf. FED. R. EVID. 801 advisory

committee’s note (noting that “assertion” is not defined by the Rules, but “has the connotation

of a forceful or positive declaration”) (emphasis added).



in the content of his or her communication.83 Both volume and tone provide further insight into a speaker’s message, the demeanor of the speaker, and the sturdiness of his spoken intention.84 In stark contrast, language such as “maybe,” “might,” or “I think” communicates a suspect’s lack of certainty in his or her desire to talk.85 Moreover, where a suspect mumbles his response to questioning, there is a lesser likelihood that such a statement will, on its own, qualify as “unequivocal.”86 This “clear statement” rule does, however, leave plenty of space for close cases.87 In Hurd, the Ninth Circuit held that a suspect’s “responses were objectively unambiguous in context” where the suspect “repeatedly refused” to perform a reenactment of shooting his wife and used “no uncertain terms.”88

The Supreme Court itself seems to encourage direct assertiveness in Fifth Amendment invocations, as the Court indicated that Thompkins would have been decided differently had Respondent just told police that he wished to remain silent or that he did not wish to answer questions.89 Yet, a critical distinction need be drawn between an expression of a desire not to answer a specific question or type of question, and a desire not to answer questions generally.90 While Thompkins seems to direct that the latter

83 See Mayo Clinic Staff, Being Assertive: Reduce Stress, Communicate Better, MAYO CLINIC,

http://www.mayoclinic.com/health/assertive/SR00042 (last visited Nov. 25, 2012) (noting that

“being assertive means that you express yourself effectively . . . . [and] gives you the best

chance of successfully delivering your message.”) [hereinafter Mayo Clinic Staff]. 84 Compare People v. Manzo, 121 Cal.Rptr.3d 207, 219 (2011)(ruling that an unequivocal

statement was made where a criminal suspect had “emphatically stated: ‘I’m doing my right.’”)

(emphasis added), with State v. Dixon, 593 A.2d 266, 275 (N.J. 1991) (holding that defendant’s

demeanor although “‘very tense, [and] very agitated,’ and . . . he refused to write anything”

was insufficient for him to have effectively invoked his right to silence). 85 See Arballo‐Villa, 2010 WL 3947330, at *5 (noting that the defendant’s substantial clarity

was distinguishable from the use of “words such as ‘maybe’ or ‘might’ or ‘I think’”). 86 See Alvarez v. Grounds, No. CV 11‐00216‐AHM (OP), 2011 WL 4801895, at *9 (D. Cal.

Aug. 18, 2011). 87 See, e.g., Manzo, 121 Cal. Rptr. 3d at 219 (2011); Commonwealth v. Clarke, 960 N.E.2d

306, 315, 320 (Mass. 2012) (noting that the SJC was applying the state constitutional provisions

to the facts before the court, but the SJC did not rule out satisfaction of the higher Thompkins

threshold); State v. Ortega, 798 N.W.2d 59, 68‐69 (Minn. 2011). 88 Hurd v. Terhune, 619 F.3d 1080, 1089 (9th Cir. 2010). 89 See Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010). 90 Where a criminal suspect told police during an interrogation “[t]hat’s it, I’m through. I

told you” a district court determined that the defendant had only wished to cease questioning

concerning the discrete topics of a knife and a stabbing, while the defendant did not wish to

cut off questioning generally. Ortega, 798 N.W.2d at 68‐69. See United States v. Reynolds, 743

F.Supp.2d 1087, 1090 (D.S.D. 2010) (“The Supreme Court of the United States has recognized

that a defendantʹs refusal to answer certain questions is not the equivalent of a request to end



expression will suffice as a valid invocation,91 the former has, time and time again, been held to have fallen short of that mark.92 Nevertheless, expressions like the defendant’s in Hurd are directly responsive to the inquiries of interrogators and convey a strong message about a suspect or arrestee’s intention to invoke.93 However, being directly responsive to interrogators or conveying a strong, assertive message are each likely a necessary, rather than a sufficient, condition for making a valid Fifth Amendment invocation.94

2. In the Form of a Question?

Just as a direct, assertive statement demonstrates clarity and confidence about a suspect or arrestee’s intention to invoke, a statement made in the form of a question has quite the opposite effect.95 Affirmative statements reflect a genuine, current belief of a speaker; whereas a statement made in the form of a question reflects a speaker’s desire to receive some added information.96 When police do in fact receive a valid Fifth Amendment invocation from a criminal suspect, they must immediately cease questioning.97 For example, where a criminal suspect asks an interrogator “do I really have to answer these questions?,” setting the invocation threshold too low would force police to immediately cease all questioning of this suspect.98 The result being that, while the suspect may have only intended to learn about her rights—not assert them—she could not lawfully be questioned further at that point.99 Many see this as too rigorous a burden to place on legitimate crime‐fighting efforts, since the matter of hours or sometimes days that it takes to “scrupulously honor” such an invocation—or successive invocations—can be the

the interrogation.”). 91 See Thompkins, 130 S. Ct. at 2260. 92 Reynolds, 743 F.Supp.2d at 1090; see also Rogers v. State, 721 S.E.2d 864, 871‐72 (Ga. 2012). 93 See Hurd, 619 F.3d at 1089; see generally MAYO CLINIC STAFF, supra note 83. 94 See People v. Nelson, 266 P.3d 1008, 1020 (Cal. 2012) (demonstrating that statements of

frustration and animosity—such as where a suspect says that he does not care who gets

caught for a murder “as long as you guys leave me alone”—may fall short under the

“unequivocal statement” rule); see also People v. Scott, 257 P.3d 703, 727 (Cal. 2011) (finding

that the utterance of the following statements by a suspect during intense interrogation was

too equivocal to make out a valid invocation: “I donʹt, I donʹt want it, I donʹt wanna”). 95 See MAYO CLINIC STAFF, supra note 83, at 1. 96 See id. 97 Michigan v. Mosley, 423 U.S. 96, 103 (1975); see also Edwards v. Arizona, 451 U.S. 477,

485 (1981). 98 See Mosley, 423 U.S. at 102. 99 Id.



difference between life and death.100

Although, one could imagine many factual scenarios where a statement made in the form of a question exhibits striking clarity, insofar as it demonstrates a speaker’s desire to invoke his or her right to remain silent.101 Nevertheless, some courts have found that voice inflection, reasonably received as a “questioning statement,” such as where suspects ask to speak to family members or friends, go to the hospital, or even ask “can we do this a different time, finish up?” each lack sufficient clarity to constitute a valid Fifth Amendment invocation.102 Some courts seem to have categorically precluded statements made in the form of a question from satisfying a “clear statement” rule like Davis or Thompkins.103 Even in cases where an affirmative statement, or several such statements, accompanies a question, some courts still refuse to find that a valid invocation has been made.104

B. The Unequivocality of Silence

In Berghuis v. Thompkins, the Court concluded that where a criminal suspect remained almost completely silent for the duration of a nearly three‐hour long interrogation, that silence did not constitute an invocation of the defendant’s right to remain silent.105 Thompkins, however, is not novel on that point of law, as this specific holding regarding the potential

100 See, e.g., Man Safe 4 Days After Being Buried Alive, THE DAILY TIMES, Sept. 27, 1982, at 2,

available at http://news.google.com/newspapers?id=XMNQAAAAIBAJ&sjid=dNAMA

AAAIBAJ&pg=4162,2358108&dq=buried+alive&hl=en (reporting on a particularly gruesome

kidnapping, which serves as an example of the practical, potentially deleterious, collateral

effects that a Fifth Amendment invocation could have in a high‐stakes, time‐sensitive

circumstance). 101 The following list likely reflects only a small subclass of fictional scenarios where

“questioning statements” each contain a high degree of clarity: (1) May I please now use my

right to not say anything?; (2) Can I just stop talking now?; (3) Do I even have to answer any

of these questions?; (4) Will you please just leave me alone?; and (5) I’m shutting up now,

okay? See Interview with Stanley Cox, Professor of Law, New England Law | Boston, in Bos.,

Mass. (Jan. 17, 2012) (on file with author) [hereinafter Interview with Professor Cox]. 102 See State v. Kornberger, 2011 WL 1345011, at *11 (N.J. Super. Ct. App. Div. Apr. 11,

2011). 103 See People v. Crittenden, 885 P.2d 887, 913 (Cal. 1994) (emphasis added) (applying

Davis, the court stated that the defendant did not “unequivocally state” that he wanted an

attorney, but simply “asked a question”). 104 See McCulley v. State, 352 S.W.3d 107, 120‐21 (Tex. 2011) (holding that a defendant

failed to invoke his right to silence where he asked police whether he could go to the hospital

and go home, and affirmatively stated that “he wanted to ‘go to sleep’”). 105 Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010); see also Adam Liptak, Mere Silence

Doesn’t Invoke Miranda, Justices Say, N.Y. TIMES, at A15 (June 1, 2010), available at

http://www.nytimes.com/2010/06/02/us/02scotus.html.



of silence to convey a clear message had already been well established.106 Some critics of the majority view in Thompkins express frustration over the cruel irony at play in refusing to acknowledge actual silence as clear enough a message that one wishes to remain silent pursuant to the Fifth Amendment.107 However, others fervently argue that a suspect’s silence, alone, may reflect a large array of that suspect’s emotions, including intimidation, anger, thoughtfulness, respect, or genuine shock—none of which categorically express a suspect’s desire to cut off questioning.108 In her first major dissent, Justice Sotomayor reacted to the majority’s stringent rule by admonishing that “[a] suspect who wishes to guard his right to remain silent, must counter‐intuitively, speak.”109

C. Clear Intentions Shown Through Gestures and Other Physical, Expressive Conduct

The old adage “actions speak louder than words,” in the present context, fits nicely.110 It is human nature to express oneself through the use of both verbal and non‐verbal forms of communication.111 In some instances, a facial expression, hand gesture, or simple shrug can be far louder than a siren stationed mere inches away.112 Taking these empirical truths at their face, there are some strong indications that an unequivocal

106 See, e.g., Bobo v. Kolb, 969 F.2d 391, 397 (7th Cir. 1992)(previously holding that

“muteness cannot conclusively be viewed as an attempt to exercise . . . [a] right to silence.”). 107 See Dery III, supra note 18, at 422 (“[Paradoxically, if a suspect exercises his right to

remain silent by simply remaining silent, such behavior might not constitute an invocation.”). 108 Taylor v. Riddle, 409 F. Supp. 631, 635 (W.D. Va. 1976) (“The actual act of being silent . .

. does not necessarily indicate a desire or decision to remain silent. . . . He may be weighting

the possibility of cooperation in order to lessen the severity of possible punishment; or he may

be curious as to what incriminating evidence the prosecution already has . . . .”); see also

Steven I. Friedland, Post‐Miranda Silence in the Wired Era: Reconstructing Real Time Silence in the

Face of Police Questioning, 80 MISS. L.J. 1339, 1343 (2011) (citing Thomas J. Bruneau, How

Americans Use Silence and Silences to Communicate, 4(2) CHINA MEDIA RES. 77 (2008)) (“A closer

examination of ‘silence’ shows that it can be parsed and differentiated, from a void of

conversation, to communicative silences constituting active listening, to a deeper

withdrawal.”). Professor Friedland argues that our society’s technological advances—such as

text‐messaging capabilities on cellular phones—shape our expectations about the meanings

we impute to modern‐day silence. See generally id. 109 Thompkins, 130 S. Ct. at 2266 (Sotomayor, J., dissenting) (asserting that the majority’s

rule “construes ambiguity in favor of the police”). 110 See A DICTIONARY OF AMERICAN IDIOMS 2 (Adam Makkai ed., 2d ed. 1987) (explaining

that the idiom “actions speak louder than words” means that what a person does is more

important than what a person says). 111 See generally ANNA ESPOSITO, FUNDAMENTALS OF VERBAL AND NONVERBAL

COMMUNICATION AND THE BIOMETRIC ISSUE (Anna Esposito et al. eds., 2007). 112 See id. at 5‐10.



expression may be accomplishable absent the utterance of even a single syllable.113

There is a clear disagreement among state and federal courts concerning the propriety of extending the Thompkins “unequivocal statement” rule to encompass gestures and other physical, expressive conduct.114 In Commonwealth v. Clarke, the SJC analogized from assumptions about the expansive nature of “statements” underlying state hearsay doctrine, to bolster the legitimacy of non‐verbal conduct in the context of invocation law.115 Moreover, in 2002, the SJC held that a suspect’s headshake when made in response to clear questioning by police was not “tantamount to silence and ambiguity,” nor was this expressive, physical conduct “equivocal, evasive, or non‐responsive,” but rather “was communicative in nature and constituted admissions.”116 However, some courts have noted that non‐verbal expressions, such as weeping or moaning, while unequivocal insofar as each expresses sadness or frustration, do not give sufficient context for a reasonable observer to know the intended source or actual cause.117

ANALYSIS

III. In Applying the Thompkins “Unequivocal Statement” Rule, Future Courts Should Always Consider the Relevant Context Within Which a Suspect’s Words Have Been Spoken and Non‐Verbal Conduct Performed.

“Context” has been defined both as a particular “setting or environment,”118 as well as the distinctly “interrelated conditions in which

113 See Commonwealth v. Clarke, 960 N.E.2d 306, 315 (Mass. 2012); see also SALKY, THE

PRIVILEGE OF SILENCE, supra note 44, at 90 (asserting that “[a] suspect must make some gesture

or remark . . . to convey his desire to remain silent” (emphasis added)). 114 Compare Clarke, 960 N.E.2d at 315 (“[R]elying on Thompkins, the Commonwealth argues

that the defendant must actually speak to invoke the right to remain silent. Thompkins,

however, does not go quite so far, and we are satisfied that a suspectʹs nonverbal expressive

conduct can suffice to invoke the right to remain silent.”(emphasis added)), with United States

v. McCarthy, 382 F. App’x. 789, 792 (10th Cir. 2010) (noting that a suspect must clearly and

unambiguously invoke the right to remain silent, and that there can be no nuance or context

that could vary the unequivocal meaning of the suspect’s intent to invoke). 115 Clarke, 960 N.E.2d at 315; see also infra Part V. 116 Commonwealth v. Marrero, 766 N.E.2d 461, 468 (Mass. 2002). 117 See State v. Williams, 535 N.W.2d 277, 283 (Minn. 1995) (“[A] suspect’s hostile behavior

during custodial interrogation might be in response to a number of stimuli. . . . Without oral

explanation, it is often ambiguous as to what message a suspect’s behavior is intended to

convey”). 118 BLACK’S LAW DICTIONARY 362 (9th ed. 2009).



something exists or occurs.”119 In the realm of American police interrogation, accounting for a relevant “context” will likely include consideration of the following: (1) the demeanor of the suspect and interrogators;120 (2) the tone, inflection, and volume at which the suspect speaks;121 (3) the known level of the suspect’s English‐speaking proficiency;122 (4) the amount of time elapsed prior to the suspect’s putative invocation;123 (5) the words and acts of both the suspect and interrogators made prior to the putative invocation;124 and (6) the suspect’s behavior—both verbal and non‐verbal—exhibited immediately following his or her putative invocation.125 The Thompkins Court itself remained silent as to whether future courts must consider the relevant context within which a suspect’s putative invocation was made.126 In contrast, many courts have noted their own diligent attention to the context within which suspects’ statements were made.127 If a valid invocation of the right to silence is meant to reflect an outward manifestation of a suspect’s intention to utilize one of his or her precious Fifth Amendment rights,128 then future courts should demand more indicia of a suspect’s intentions than a mere word or phrase that happens to exit from the quivering lips of a frightened, under‐

119 A. MERRIAM‐WEBSTER, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 492 (Philip

B. Gove et al. eds., 1986). 120 See sources cited supra notes 78, 82, 87. 121 See generally supra Part II.A.1. One should also consider that a “clear statement” rule

may in fact categorically disadvantage women. See Janet E. Ainsworth, In a Different Register:

The Pragmatics of Powerlessness in Police Interrogation, 103 YALE L.J. 259, 283‐84 (1993) (arguing

that, while male speech patterns are aptly described as “direct, clear, succinct, as would be

expected of those who need not fear giving offense,” the so‐called “female register” is

comprised of “indirect and tentative grammatical forms”). 122 Arguably, a verbal “clear‐statement” rule disproportionately disfavors minority‐group

members and non‐native English speakers. See generally id. at 317‐19. 123 Implicit in this factor is the idea that, where a suspect responds to affirmative police

questioning with silence, that silence ought to be analyzed with acute concern for its duration

and the accompanying non‐verbal expressions of the suspect. See, e.g., Berghuis v. Thompkins,

130 S. Ct. 2250, 2258‐59 (2010) (emphasis added) (finding that the defendant had sat in his

interrogation seat for almost three hours before breaking his silence). 124 Cf. McCulley v. State, 352 S.W.3d 107, 121 (Tex. Crim. App. 2011). 125 See generally INBAU, CRIMINAL INTERROGATION AND CONFESSION, supra note 4, at 104‐08;

see also State v. Diaz‐Bridges, 34 A.3d 748, 761‐64 (N.J. 2012). 126 See Thompkins, 130 S. Ct. at 2260. 127 See, e.g., United States v. Goodwin, 470 F.2d 893, 902 (5th Cir. 1972); Alvarez v.

Grounds, No. CV 11–00216–AHM (OP), 2011 WL 4801895, at *9 (C.D. Cal. Aug. 18, 2011);

McCulley, 352 S.W.3d at 120 (citing Williams v. State, 257 S.W.3d 426, 433 (Tex. Crim. App.

2008)); Dixon v. State, 72 So. 3d 171, 176‐77 (Fla. Dist. Ct. App. 2011); Diaz‐Bridges, 34 A.3d at

761‐64; State v. Kornberger, 2011 WL 1345011, at *11 (N.J. Super. Ct. App. Div. Apr. 11, 2011). 128 See Stanley Cox, supra note 101.



educated criminal suspect129 while in the grips of a purposefully pressure‐filled interrogative process.130

A contextual approach to assessing statement clarity under Thompkins gives teeth to one of the Fifth Amendment’s overarching objectives.131 Implicit in the notion of compulsion is a careful assessment of an individual’s will.132 It necessarily follows, that future courts should demand as much indicia of a suspect’s will—which is comprised of a suspect’s wants and desires—as can reasonably be drawn from the record and from testimony elicited by the parties.133 Even more, such an approach fits squarely with both Miranda’s mandate134 and principles of fundamental fairness.135

Imposing a “clear‐statement” rule without considering a relevant context—and expecting thereby to fully understand a criminal suspect’s intentions—is akin to reading a single paragraph on the hundredth page of a voluminous novel expecting to really “get” that book and “get” its author.136 Failing to take account of a relevant context can cause confusion—or plain error—not only in the realm of custodial interrogation,

129 Numerous studies have shown that the vast majority of America’s prison populations

are comprised of young individuals, minorities, as well as the severely undereducated. See

LARRY J. SIEGEL, ESSENTIALS OF CRIMINAL JUSTICE 426‐27 (6th ed. 2008). 130 See generally RICHARD A. LEO, POLICE INTERROGATION AND AMERICAN JUSTICE 112‐18

(2008). 131 “No person . . . shall be compelled in any criminal case to be a witness against himself . . .

.” U.S. CONST. amend. V (emphasis added). 132 See GEOFFREY THOMAS, AN INTRODUCTION TO ETHICS: FIVE CENTRAL PROBLEMS OF

MORAL JUDGEMENT 184 (1993) (explaining the role of each “desires” and “wants” in assessing

the presence or absence of mental compulsion). 133 See, e.g., State v. Diaz‐Bridges, 34 A.3d 748, 760 (N.J. 2012) (In assessing whether a

reasonable officer would have found that the suspect invoked his or her right to silence, “it

may be inadequate to confine appellate review to the transcript of the interrogation. Instead . .

. if the trial court has based its finding on conduct or behaviors that defendant exhibited

during . . . interrogation . . . a review of the . . . interrogation is appropriate.”). 134 See Miranda v. Arizona, 384 U.S. 436, 445 (1966) (holding that a valid invocation is

made where a criminal suspect “indicates in any manner” that he or she wishes to cut off

questioning during a custodial interrogation). 135 Generally, parties exert much time and expense to preserve and offer evidence in a

criminal trial. JOHN C. DONOVAN ET AL., PEOPLE, POWER, AND POLITICS 227 (3d ed. 1993).

Today, such evidence often includes videotaped interrogations. See BRANDON L. GARRETT,

CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO WRONG 248 (2011). Thus, it

seems fundamentally unfair for a court to turn a blind eye to strong evidence of a suspect’s

desire to invoke a constitutionally‐protected right, especially when such evidence can be

gathered from the record or from testimony elicited before a judge. See, e.g., Diaz‐Bridges, 34

A.3d at 760. 136 Cf. Roy Dilley, Preface to 4 METHODOLOGY AND HISTORY IN ANTHROPOLOGY: THE

PROBLEM OF CONTEXT, at ix, x, xii (Roy Dilley ed., 1999).



but even in the interpretation of Supreme Court precedent.137 Take as an example, the language of the majority opinion in Miranda, where the Supreme Court noted, “if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.”138 If one were to try interpreting this language blindly,without considering any context whatsoever, one would likely conclude that the word “alone” was intended to express its ordinary meaning.139 Surely, this suggested interpretation of Miranda—while it seems quite consistent with the above‐quoted language—is not what the former Chief Justice Warren had in mind.140 Rather, by reading the immediately preceding sentence in Miranda—and by examining other contextual evidence—one will quickly realize that what the Miranda Court in fact meant by “alone” was “in the absence of counsel.”141 This one example demonstrates the potentially recurring risk that will present itself should future courts refuse to consider the context in which a criminal suspect speaks, acts, or just does nothing at all, in the face of custodial interrogation.142

The consequences for a suspect’s failure to adequately make an “unequivocal statement” in the midst of a police interrogation can be grave.143 However, these are consequences for which many individuals are simply ill‐equipped to avoid.144 This begs the question, ultimately, if even the former Chief Justice Warren’s expression in Miranda was too equivocal by Justice Kennedy’s standards, then how can one reasonably expect the average criminal suspect to make out an “unequivocal statement” under Thompkins?145 The answer seems to be that future courts should always

137 See infra text accompanying notes 138‐141. 138 Miranda, 384 U.S. at 445. 139 See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 60 (Philip Babcock Gove ed.,

1986) (defining “alone” both as “separated . . . from all other individuals or groups” and

“exclusive of anyone or anything else.”). 140 See Miranda, 384 U.S. at 444‐45. 141 See id. (“If, however, he indicates in any manner and at any stage of the process that he

wishes to consult with an attorney before speaking there can be no questioning.”). 142 Compare id., with supra text accompanying notes 129‐131. 143 See, e.g., Berghuis v. Thompkins, 130 S. Ct. 2250, 2264 (2010) (concluding that the police

were legally justified in pursuing further interrogative ends because the defendant failed to

invoke his right to remain silent). 144 See Michael L. Vander Giessen, Comment, Berghuis v. Thompkins: The Continued

Erosion of Miranda’s Protections, 46 GONS. L. REV. 189, 209 (2010‐2011) (“One thing is clear at

this juncture . . . many of America’s ordinary criminal suspects require education on how to

invoke their Miranda rights, if they wish to do so successfully.”). 145 Compare Miranda, 384 U.S. at 445 (explaining that, where a suspect indicates “in any

manner” that he does not want to speak to the police, questioning must cease), with



view Thompkins issues through a contextual lens.146

IV. Some Forms of Non‐Verbal, Expressive Behavior Should be Analyzed Under the Thompkins Framework, and the SJC’s Approach in Commonwealth v. Clarke Serves as an Excellent Example of How Some Non‐Verbal “Statements” Fit Within the Invocation Calculus.

While “neither the Constitution nor Miranda require a suspect to invoke his right to silence in a particular way,”147 Thompkins, quite clearly, calls for the making of an “unequivocal statement.”148 The key question that remains, however, is whether the former truth retains any real bite in light of the latter rule.149 This Note quite enthusiastically answers that question in the affirmative.150 It has already been noted that both verbal and non‐verbal forms of communication harbor the potential to present a crystal‐clear picture of human intentions.151 Thus, while some physical,

Thompkins, 130 S. Ct. at 2260 (“There is good reason to require an accused who wants to

invoke his or her right to remain silent to do so unambiguously.”). 146 Holly, supra note 45, at 583. See generally supra Part III. 147 Hurd v. Terhune, 619 F.3d 1080, 1089 (9th Cir. 2010). 148 Thompkins, 130 S. Ct. at 2260. 149 One commentator pinpointed this Pandora’s Box superbly: “[Thompkins] opens the way

to other questions: Must the individual invoke the Miranda Rights verbally? Does sign

language or head shaking to stop the questioning [sic] qualify? If the person has no power of

speech or cannot invoke it in English, is there an accommodation for that individual?”

Coachexec, Comment to Opening Arguments—Supreme Court in Miranda Case: Suspect Must

Invoke Right, WASH. POST 1 http://voices.washingtonpost.com/supreme‐

court/2010/06/supreme_court_rules_in_miranda.html (June 1, 2010, 2:40 PM). 150 See generally infra Part IV. 151 See supra Part II.C. Bonnie Sudderth, Judge of the 352nd District Court of Tarrant

County, Texas, provides a superbly insightful comment on the expressive power of silence:

Earth Day, 1971.

Keep America Beautiful launches a TV ad featuring scene‐after‐scene of

polluted rivers, trash‐strewn highways, mountainous landfills and

billowing industrial smokestacks, ending with a close‐up of an American

Indian with a single tear flowing down his cheek. Not a word was spoken

during that 60‐second span, yet anyone who saw it is unlikely to ever

forget the message. In fact, even today that commercial is considered one

of the most powerful and successful ad campaigns of all time,

demonstrating how silence sometimes speaks louder than words.

Bonnie Sudderth, Silence as Evidence, JUDGE BONNIE SUDDERTH, (Aug. 21, 2011, 3:06 AM),

http://judgebonniesudderth.wordpress.com/2011/08/21/silence‐as‐evidence/. Also indicative

of the expressive power of silence is the fact that, in the area of corporate securities law,

“assistance” by a lawyer in a fraud may be accomplished by silence in the form of material

omission.



expressive behavior when performed is equivocal at best,152 other non‐verbal expressions such as a headshake or nodding gesture may contain exorbitant clarity when considered within the larger framework of a particular context.153

However, some courts have expressed grave concern for burdening police with the task of interpreting an endless array of hidden, subjective intentions belonging to criminal suspects.154 The concern is two‐fold: (1) the subjective inquiries will be very difficult to accurately and consistently assess;155 and (2) the immense time and resources required to perform this difficult assessment will severely stymie crime‐fighting efforts of police.156 While these concerns should not be discounted, the inclusion of some non‐verbal, expressive behavior into the “unequivocal statement” paradigm does not require shifting the test away from its objective posture.157 Moreover, there are strong indications that both state and federal policing forces are commonly trained to pinpoint nonverbal expressive behaviors of criminal suspects.158 Thus, this Note argues that the test should be whether a reasonable officer would have interpreted both the suspect’s verbal and non‐verbal expressions, in light of a particular context, as an invocation of that suspect’s right to remain silent.159

The SJC in Commonwealth v. Clarke relied on state constitutional grounds to avoid application of the higher invocation threshold established in Thompkins, but in doing so, the SJC did comment on the status of the

152 See, e.g., United States v. Ramsey, 992 F.2d 301, 305 (11th Cir. 1993) (finding a Miranda

violation where defendant equivocally invoked right to remain silent by looking away when

asked to make a statement), abrogated by Davis v. United States, 512 U.S. 452, 459 (1994). 153 See supra Part III; infra text accompanying notes 163‐76; see also Commonwealth v.

Clarke, 960 N.E.2d 306, 315 (Mass. 2012). 154 See Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010) (quoting Davis, 512 U.S.at 461). 155 See United States v. Arballo‐Villa, No. CR 09‐1539‐TUC‐DCB(HCE), 2010 WL 3947330,

at *5 (D. Ariz. Sept. 14, 2010). 156 Cf. Davis, 512 U.S. at 465 (Scalia, J., concurring). 157 See supra text accompanying notes 72‐82. In fact, police interrogators are specially

trained to pick up on both the verbal and non‐verbal cues of criminal suspects. See FRED E.

INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS 111‐21 (5th ed. 2011). Interrogation

manuals provide explicit guidance on how police should interpret particular gestures, facial

expressions, and even moments of silence. See id. at 121. 158 See generally Brief for the National Association of Criminal Defense Lawyers and the

American Civil Liberties Union as Amici Curiae in Support of Respondent at *32‐33, Berghuis

v. Thompkins, 130 S. Ct. 2250 (2010) (No. 08‐1470) [hereinafter Amici Brief of Criminal

Defense Lawyers and ACLU] (discussing how police training materials, such as the

preeminent Inbau Manual and various video tutorials are used by the Federal Law

Enforcement Training Center, making the close attention paid to suspects’ nonverbal cues

quintessentially “actual police practice”). 159 See infra Part IV.



federal precedent in this area of non‐verbal, “unequivocal statements.”160 In Clarke, the relevant key facts were that during the course of a custodial interrogation, a criminal suspect shook his head indicating a negative response to an interrogator’s question of “So, you don’t want to speak?”161 The SJC held that the suspect’s deliberate, lateral headshake, made immediately after being asked if he wished to talk to interrogators, was a perfectly clear expression of the suspect’s desire to invoke his right to silence.162

The laudable underpinning of the rationale in Clarke was the SJC’s acute appreciation for the vast community of inarticulate, intimidated criminal suspects.163 While such empirical research is hard to come by, some studies pinpoint the marked symmetry as amongst low socio‐economic groups, American prison populations, and individuals with the poorest linguistic skills.164 Such findings underscore the import of setting forth a “clear statement” rule that is inclusive of non‐verbal, expressive behavior.165 The SJC’s method in Clarke of assessing the totality of the circumstances surrounding a criminal suspect’s putative invocation,166 combined with the SJC’s affirmation of the expressive power belonging to

160 See Commonwealth v. Clarke, 960 N.E.2d 306, 315‐17 (Mass. 2012) (referring to the level

of clarity required under Thompkins, the SJC noted that “we are satisfied that a suspect’s

nonverbal expressive conduct can suffice to invoke the right to remain silent”) (emphasis added).

The SJC would go on to say that Miranda actually dictates that nonverbal forms of expression

may suffice for an invocation. See id. at 315. Further, the SJC even analogized from the law of

hearsay, to provide creative support for this relatively new notion of nonverbal Fifth

Amendment invocation. See id.; see also Commonwealth v. Marrero, 766 N.E.2d 461, 467 (Mass.

2002); infra Part IV. 161 Clarke, 960 N.E.2d at 315. 162 See id. 163 See id. at 319 (citation omitted). It is widely recognized that some patterns of diminished

directedness in speech by criminal suspects and arrestees is partly attributable to nerves and

the overall gravity of the occasion. See, e.g., Aldert Vrij et al., An Empirical Test of the Behaviour

Analysis Interview, 30 LAW & HUM. BEHAV. 329, 330, 332 (2006) (stating that previously held

beliefs that liars would be less comfortable than truth tellers in an interrogation are false).

While less recognized, the other part seems attributable to barriers rooted in various cultural

phenomena. See generally Ainsworth, supra note 121, at 261, 286‐88 (discussing various reasons

why suspects in high‐stress situations may respond with non‐verbal expressions as opposed

to a clear invocation of their rights). 164 See HERBERT A. BLOCH & GILBERT GEIS, MAN, CRIME, AND SOCIETY 128 (2d ed. 1970). 165 See id. Interestingly, the role that gender plays has also been highlighted in this area,

because women tend to utilize a certain “speech register” that produces less direct, assertive

expressions when confronted with a sentiment of powerlessness. See Ainsworth, supra note

121, at 286‐88. This sentiment is especially pronounced when an assertive, dominant character,

such as a criminal investigator, is the one doing the confronting. See id. 166 Clarke, 960 N.E.2d at 315.



some forms of nonverbal communication provides an enlightening conceptual model for future courts.167

V. Future Courts Should Interpret a Thompkins “Unequivocal Statement” in a Manner Consistent with the Approach Taken in the Law of Hearsay, Defined by Rule 801(a) of the Federal Rules of Evidence.

Rule 801(a) of the Federal Rules of Evidence defines a “statement” as “a person’s oral assertion, written assertion, or non‐verbal conduct, if the person intended it as an assertion.”168 Just as invocation law concerns itself with giving effect to clearly expressed desires of criminal suspects to invoke their constitutional right to remain silent, the law of hearsay seeks to unpack a “statement” into something with assertive content, evincing a speaker’s observable intentions.169 In this sense, hearsay and invocation law share a common core concern: giving effect to the observable intentions of a speaking party.170

Invocation law should mimic the law of hearsay, insofar as the latter area defines a “statement” and the methods it employs to determine whether that definition has been satisfied.171 It is black‐letter hearsay law that some nonverbal expressive conduct “can serve as a substitute for words,” such as the act of pointing to a suspect in a lineup.172 Further, deciding whether a “statement” sufficiently demonstrates a speaker’s desire to send a particular message requires looking to the speakers conduct within a discrete context.173

While the rule against hearsay is merely evidentiary, an invocation of the right to remain silent implicates a constitutionally protected

167 See id. 168 FED. R. EVID. 801(a). 169 J.W. Carney, Jr. et al., MASSACHUSETTS EVIDENCE: A COURTROOM REFERENCE, MCLE, at

§ 5.1.1 (6th ed. 2011). 170 Id. Quite apart from the underlying concerns in invocation law, hearsay doctrine keys

in to intentionally assertive behavior because both (1) out‐of‐court assertions are less reliable

than those opinions or beliefs manifested by an in‐court witness, under oath, and (2) hearsay

content is unfairly persuasive of juries because no meaningful cross‐examination can be had.

See Donnelly v. United States, 228 U.S. 243, 273 (1913). 171 FED. R. EVID. 801(a). 172 See MASS. GUIDE EVID. § 801(a) (2012). 173 See, e.g., Brad A. Catlin, Nonverbal Statements are Still Hearsay, INDIANA LAW UPDATE‐

THE BLOG (May 8, 2011), http://www.pricelaw.com/pdf/NonverbalStatementsAre

StillHearsay.pdf (citing Sandefur v. State of Indiana, 945 N.E.2d 785, 789‐90 (Ind. Ct. App.

2011)) (introducing a case, Sandefur v. State of Indiana, where a court in conducting its hearsay

analysis considered such facts as the demeanor and poor physical condition of the speaker).



guarantee.174 Consequently, the legal effect given a suspect’s nonverbal statements under evidentiary rules should, at the very least, be commensurate to the amount of protection afforded criminal suspects under the Fifth Amendment of the Constitution.175 Further, it is ill‐advised to fragment definitional approaches to nonverbal “statements,” even where those approaches derive from separate bodies of law.176 Bringing the definitional approaches of invocation and hearsay law into harmony will give greater predictability to the law, to the benefit of both advocates and future courts.177

For example, where a criminal suspect “mouths” words, which if themselves articulated with presence of the pitch and tone necessary so as to make those words audible to a nearby interrogator, invocation law—just like the law of hearsay—should hold that an “unequivocal statement” had been made.178 Thus, the law of hearsay teaches an important lesson about the potential that some non‐verbal expressive conduct has to present an objectively clear message.179 Deciphering whether a statement has been made is a fallible enterprise—whether for the purpose of deciding if an out‐of‐court speaker’s behavior is meant to communicate some particular message or if a criminal suspect wishes to end interrogative questioning and invoke his or her Fifth Amendment right.180 However, the allowance—and the continued use—of nonverbal expression in the hearsay definition of “statement” lend credence to the taking of a mirrored approach with Thompkins’s “unequivocal statement” rule.181 There should be nothing legally material about the sound of particular words or of their constitutive

174 Compare MASS. GUIDE EVID. Art. 8, intro. note (2012), with Dickerson v. United States,

530 U.S. 428, 432 (2000) (“We hold that Miranda, being a constitutional decision of this Court,

may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda

ourselves.”). 175 See U.S. CONST. amend. V; see also FED. R. EVID. 801(a). 176 Diligently working toward cross‐disciplinary, definitional consistency is an objective

sought to be accomplished throughout American law. Cf. Ralph Cunningham, Contract Rights

as Property Rights, in THE LAW OF OBLIGATIONS: CONNECTIONS AND BOUNDARIES 169, 176‐77

(Andrew Robertson ed., 2004) (pointing out the necessity of “maintaining consistency

throughout the law” while discussing a discrete point at which the laws of contract and

property intersect). 177 Cf. id. 178 See Sandefur, 945 N.E.2d at 787. 179 See, e.g., id. at 789‐90. 180 See Ted Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of

Evidence, 14 STAN. L. REV. 682, 682‐83 & n.5 (1962). The pivot‐point in the debate over whether

to permit nonverbal conduct to suffice as a “statement” dates back to early English common‐

law. See Wright v. Doe dem. Tatham, 112 Eng. Rep. 488 (K. B. 1838). 181 See FED. R. EVID. 801(a); see also supra text accompanying notes 168‐177.



syllabic intones,182 but instead, future courts should require only that a suspect demonstrate an unequivocal expression of his or her desire to cutoff questioning, by any means and “in any manner.”183

CONCLUSION

Future courts should interpret Thompkins’s requirement of an “unequivocal statement” in a way that acknowledges the expressive power inherent in some nonverbal, human behavior.184 Moreover, Thompkins should be read with reference to how hearsay law treats such nonverbal behavior as “mouthing” words, a head nod, or moments of complete silence.185 It is equally vital, however, that future courts utilize a contextual approach to assessing statement clarity.186 While the expectation that suspects exhibit a high level of clarity in their putative invocations is substantially justified,187 police forces are already well‐equipped to scrupulously follow Miranda’s mandate that a suspect be able to invoke his or her right to remain silent “in any manner.”188 It is plainly unfair to punish those segments of society that lack—for one reason or another—the kind of linguistic flare required to satisfy a solely verbal “unequivocal statement” rule.189 Thus, future courts should define Thompkins’s “statement” as that term is defined by Rule 801 (a) of the Federal Rules of Evidence.190 By doing so, future courts will be left in a far better position to evaluate and rule upon the observable intentions of criminal suspects.191 By striking this proposed balance, the right to silence—afforded to millions of Americans by the Fifth Amendment to the Constitution of the United States—will be properly secured.192

182 See supra Parts 0‐0. 183 See Miranda v. Arizona, 384 U.S. 436, 444‐45 (1966); Commonwealth v. Clarke, 960

N.E.2d 306, 342, 314‐15 (Mass. 2012); see also Amici Brief of Criminal Defense Lawyers and

ACLU, supra note 158, at 26‐27 (supporting a rule that is inclusive of nonverbal, expressive

conduct such as a “categorical refusal to answer investigative questions over the course of

several hours of questioning.”); cf. FED. R. EVID. 801(a). 184 See supra text accompanying notes 147‐167. 185 See supra Part 0. 186 See supra Part V. 187 See supra note 152 and accompanying text. 188 See Miranda, 384 U.S. at 444‐45. 189 See supra text accompanying notes 145‐51, 165. 190 See FED. R. EVID. 801(a). 191 See FED. R. EVID. 801(a) advisory committee’s note to subdivision (a). 192 See supra Parts 0‐0; see also U.S. CONST. amend. V.

knight: meditations on post-thompkins invocations

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