[3] The dissent, authored by Justice Sonia Sotomayor, argued that Miranda v. Arizona and other previous cases had required the waiver of a constitutional right to be much clearer, especially because of the "compelling influence" that an interrogation causes after police have spent several hours pressuring a suspect.

Many considered Berghuis the latest in a line of cases eroding Miranda, perhaps "turning the clocks back" on safeguards for people being investigated by the police.

The court record suggested that he had been almost completely silent during the three-hour interrogation and the few sporadic comments he made had no bearing on the case[6] (police described it as "nearly a monologue"[7]).

For example, it said that initial reluctance to talk was not inherently a communication by the suspect to the officer that they were terminating the interview, which is what an exercise of the right to silence is.

[11] Opposing the state's position, the National Association of Criminal Defense Lawyers and American Civil Liberties Union filed a joint Amicus Curiae brief that argued the police officers strategically chose to never asked Thompkins if he would willingly waive his Miranda rights because that would have invited him to do so explicitly.

In their view, a so-called "waiver-first" rule where the police must ask for a waiver was "the most effective way to avoid the very evil that [Miranda] sought to address, namely that the highly coercive and intimidating custodial environment compels unwilling suspects to speak."

Thompkins' answer to the police question, having understood but not chosen to invoke his rights, was sufficient to show a course of conduct indicating waiver.

[20] She wrote that the case represented "a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided during custodial interrogation",[2] and that "[S]uspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak.

"[1] The dissent noted that the government must satisfy the "high standar[d] of proof for the waiver of constitutional rights [set forth in] Johnson v.

In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so.

It is inconsistent with any notion of a voluntary relinquishment of the privilege.and that Miranda and North Carolina v. Butler both agreed that: [a] court 'must presume that a defendant did not waive his right[s]'; the prosecution bears a 'heavy burden' in attempting to demonstrate waiver; the fact of a 'lengthy interrogation' prior to obtaining statements is 'strong evidence' against a finding of valid waiver; 'mere silence' in response to questioning is 'not enough'; and waiver may not be presumed 'simply from the fact that a confession was in fact eventually obtained'.The Court had previously observed that "while the privilege [against self-incrimination] is sometimes a shelter to the guilty, [it] is often a protection to the innocent" and that "[f]or these reasons, we have observed, a criminal law system which comes to depend on the 'confession' will, in the long run, be less reliable and more subject to abuses than a system relying on independent investigation.

[23] UC Berkeley law professor John Yoo, author of the Torture Memos for the Bush Administration, responded in a matching article in the same publication.

Yoo predicted that this perspective could influence terrorism cases when the opponents were declared to be at war because "interrogation would seek actionable intelligence to stop attacks, not confessions for use in civilian trials".

Yoo speculated that Berghuis may have clarified that Miranda was not relevant where information was not being collected for use at a trial, allowing it to act in mitigation of "weak anti-terrorism policies.

She noted the Attorney General's comment that Miranda warnings had not deterred terrorism suspects such as Umar Farouk Abdulmutallab and Faisal Shahzad from talking and providing "valuable intelligence".

[26] Other legal responses included Stanford University law professor Robert Weisberg, who stated that "this decision authorizes lower courts to construe ambiguous situations in favor of police and prosecutors,"[27] and University of Michigan law professor Richard Friedman, who concluded, "This decision means that police can keep shooting questions at a suspect who refuses to talk as long as they want in hopes that the person will crack and give them some information.

"[2] Steven Shapiro, legal director of the ACLU, stated on similar lines that Berghuis "seriously undermines" Miranda, in which the court had "recognized that a suspect in police custody can be worn down by prolonged questioning and other interrogation tactics".

He further observed that neither Michigan nor the Solicitor General cited any previous example of a court agreeing that a suspect had given an implied waiver after being questioned for over three hours.

"[4] National and regional media outlets reported a range of views similar to the above: A number of newspapers, including well known and national titles such as USA Today,[27] The New York Times[20] and The Washington Post,[31] and titles such as Associated Press[2] and The Washington Times,[32] reported the facts on both sides without stating a strong editorial position in their coverage.

In Salinas v. Texas, 570 U.S. 178 (2013), the Supreme Court extended Berghuis by holding that, prior to any arrest, the police are not required to explicitly inform an interviewee that they have a right to remain silent under the Fifth Amendment.

Salinas answered most of the officers' questions, but simply remained silent when they asked him whether shotgun casings found at the scene of the murders would match his gun.

Later, at his trial, prosecutors told jurors that his silence in the face of that question showed that he was guilty, that he knew that the shotgun used to kill the victims was his.

Salinas' lawyer wanted the Supreme Court to rule that the simple fact of silence during police questioning, when an individual was not under arrest, could not be used against that person at a criminal trial.

[37] In essence the Supreme Court ruled the Fifth Amendment's Self-Incrimination Clause does not protect a defendant's refusal to answer questions asked by law enforcement before he has been arrested or read his Miranda rights.

Notwithstanding popular misconceptions, the Court held that the Fifth Amendment does not establish a complete right to remain silent but only guarantees that a criminal defendant may not be forced to testify against himself or herself.