The Sound of Silence: Miranda Waivers, Selective Literalism and Social Context

This chapter examines the 2010 United States Supreme Court case, Berghuis v. Thompkins, which ruled that waiver of a suspect’s Miranda right to counsel can be implied through silence. The chapter argues that the Thompkins decision is flawed for two reasons. First, the Court held criminal defendants to a higher linguistic standard than police, requiring suspects to be direct and assertive when invoking constitutional rights while allowing police speech to be more indirect and implied. Second, the Court failed to take social context into account when interpreting custodial suspects’ speech patterns. Women and individuals with lower socioeconomic status tend to use more indirect language and hedging phases when speaking to men and individuals with higher socioeconomic status. But courts are less likely to interpret these indirect modes of speech as qualifying as assertions of constitutional rights. The Thompkins Court should have required the interrogator to ask the suspect to clarify why he refused to sign the Miranda waiver and whether he wished to voluntarily participate in the interrogation given his almost complete silence in response to the detective’s questions. More generally, courts should look to suspects’ communicative intent when interpreting whether through words or actions they wish to invoke the right to silence during police interrogation