H. Michael Steinberg has 38+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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United States Supreme Court Further Curtails the Miranda Decision

By H. Michael Steinberg Colorado Criminal Defense Lawyer

In the United States Supreme Court, Berghuis v. Thompkins,  a majority of the Court further curtailed an individual’s right to silence under the 5th amendment by requiring the suspect to fully and articulately state the exercise of his/her right to remain silent.

The Defendant, Thompkins argued in his appeal, that his confession was obtained in violation of the Fifth Amendment and that he was denied effective counsel at trial.

The lower court held that Thompkin’s waiver of his Fifth Amendment right was unreasonable because he refused to sign an acknowledgement that he had been informed of his Miranda rights and rarely made eye contact with the officer throughout the three hour interview.

The Question before the Court was this:

Did the Sixth Circuit improperly expand the Miranda rule when it held that defendant’s Fifth Amendment rights were violated?

The United States Supreme Court answered in the affirmative:

The Court of Last Resort reversed the Sixth Circuit, and held that the state court’s decision to reject Mr. Thompkins’ Miranda claim was correct.

The Court reasoned that Mr.Thompkins failed to invoke his Miranda rights to remain silent and to counsel because he failed to do so “unambiguously.” The Court reasoned that Mr.Thompkins waived his Miranda right to remain silent when he “knowingly and voluntarily” made a statement to the police.


While the officers had advised Thompkins of his right to remain silent, they thereafter questioned him for almost three hours. Thompkins resisted their questions and refused to utter a word.

At the end of the three hour period, the police asked Thompkins whether he prayed that God would forgive himfor shooting that boy,” did Thompkins whisper, “Yes.”

This answer was used against him at trial.

Miranda v. Arizona had previously held that the police could not assume suspects had given up their right to remain silent unless the suspect has made it clear that he or she wanted to talk.

After the Thompins case, law enforcement can now assume a supsect has given up their right to remain silent unless the suspect clearly states that he or she desires to remain silent.

This ruling stands Miranda on its head – Justice Sonia Sotamayor, in her dissent to this opinion explained the significance of the decision. She reprimanded the majority for retreating from the broad protections afforded by Miranda, stating that now a criminal suspect waives his rights simply by uttering a “few one-word responses.”

More than ever before, it is necessary that individuals being investigated by law enforcement exercise their rights under the United States and Colorado Bill of Rights. It is fundemental to the exercise of those rights that persons have the right to obtain good legal representation.