OPINION OF THE COURT BERGHUIS V. THOMPKINS 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1470 MARY BERGHUIS, WARDEN, PETITIONER v. VAN
CHESTER THOMPKINS

															on writ of certiorari to the united states court of
appeals for the sixth circuit

															[June 1, 2010]

															   Justice Kennedy delivered the
opinion of the Court.

															   The United States Court of
Appeals for the Sixth Circuit, in a habeas corpus proceeding
challenging a Michigan conviction for first-degree murder and
certain other offenses, ruled that there had been two separate
constitutional errors in the trial that led to the jury’s guilty
verdict. First, the Court of Appeals determined that a statement by
the accused, relied on at trial by the prosecution, had been
elicited in violation of Miranda v. Arizona , 384 U. S. 436 (1966). Second, it found that failure to ask for an instruction
relating to testimony from an accomplice was ineffective assistance
by defense counsel. See Strickland v. Washington , 466 U. S. 668 (1984). Both of these contentions had been rejected in Michigan
courts and in the habeas corpus proceedings before the United
States District Court. Certiorari was granted to review the
decision by the Court of Appeals on both points. The warden of a
Michigan correctional facility is the petitioner here, and Van
Chester Thompkins, who was convicted, is the respondent.

															I

															A

															   On January 10, 2000, a shooting
occurred outside a mall in Southfield, Michigan. Among the victims
was Samuel Morris, who died from multiple gunshot wounds. The other
victim, Frederick France, recovered from his injuries and later
testified. Thompkins, who was a suspect, fled. About one year later
he was found in Ohio and arrested there.

															   Two Southfield police officers
traveled to Ohio to interrogate Thompkins, then awaiting transfer
to Michigan. The interrogation began around 1:30 p.m. and lasted
about three hours. The interrogation was conducted in a room that
was 8 by 10 feet, and Thompkins sat in a chair that resembled a
school desk (it had an arm on it that swings around to provide a
surface to write on). App. 144a–145a. At the beginning of the
interrogation, one of the officers, Detective Helgert, presented
Thompkins with a form derived from the Miranda rule. It
stated:

															“NOTIFICATION OF CONSTITUTIONAL RIGHTS AND
STATEMENT

															“1. You have the right to remain silent.

															“2. Anything you say can and will be used against you in a court
of law.

															“3. You have a right to talk to a lawyer before answering
   any questions and you have the right to have a
lawyer present with you while you are answering any
   questions.

															“4. If you cannot afford to hire a lawyer, one will be appointed
to represent you before any questioning, if you wish one.

															“5. You have the right to decide at any time before or during
questioning to use your right to remain silent and your right to
talk with a lawyer while you are being questioned.” Brief for
Petitioner 60 (some capitalization omitted).

															   Helgert asked Thompkins to read
the fifth warning out loud. App. 8a. Thompkins complied. Helgert
later said this was to ensure that Thompkins could read, and
Helgert concluded that Thompkins understood English. Id. ,
at 9a. Helgert then read the other four Miranda warnings
out loud and asked Thompkins to sign the form to demonstrate that
he understood his rights. App. 8a–9a. Thompkins declined to sign
the form. The record contains conflicting evidence about whether
Thompkins then verbally confirmed that he understood the rights
listed on the form. Compare id. , at 9a (at a suppression
hearing, Helgert testified that Thompkins verbally confirmed that
he understood his rights), with id. , at 148a (at trial,
Helgert stated, “I don’t know that I orally asked him” whether
Thompkins understood his rights).

															   Officers began an interrogation. At no point
during the interrogation did Thompkins say that he wanted to remain
silent, that he did not want to talk with the police, or that he
wanted an attorney. Id. , at 10a. Thompkins was “[l]argely”
silent during the interrogation, which lasted about three hours. Id. , at 19a. He did give a few limited verbal responses,
however, such as “yeah,” “no,” or “I don’t know.” And on occasion
he communicated by nodding his head. Id. , at 23a.
Thompkins also said that he “didn’t want a peppermint” that was
offered to him by the police and that the chair he was “sitting in
was hard.” Id. , at 152a.

															   About 2 hours and 45 minutes into the
interrogation, Helgert asked Thompkins, “Do you believe in God?” Id. , at 11a, 153a. Thompkins made eye contact with Helgert
and said “Yes,” as his eyes “well[ed] up with tears.” Id. ,
at 11a. Helgert asked, “Do you pray to God?” Thompkins said “Yes.” Id. , at 11a, 153a. Helgert asked, “Do you pray to God to
forgive you for shooting that boy down?” Id. , at 153a.
Thompkins answered “Yes” and looked away. Ibid. Thompkins
refused to make a written confession, and the interrogation ended
about 15 minutes later. Id. , at 11a.

															   Thompkins was charged with first-degree
murder, assault with intent to commit murder, and certain
firearms-related offenses. He moved to suppress the statements made
during the interrogation. He argued that he had invoked his Fifth
Amendment right to remain silent, requiring police to end the
interrogation at once, see Michigan v. Mosley , 423 U. S. 96 , 103
(1975) (citing Miranda , 384 U. S., at 474), that he had
not waived his right to remain silent, and that his inculpatory
statements were involuntary. The trial court denied the motion.

															   At trial, the prosecution’s theory was that
Thompkins shot the victims from the passenger seat of a van driven
by Eric Purifoy. Purifoy testified that he had been driving the van
and that Thompkins was in the passenger seat while another man, one
Myzell Woodward, was in the back. The defense strategy was to pin
the blame on Purifoy. Purifoy testified he did not see who fired
the weapon because the van was stopped and he was bending over near
the floor when shots were fired. Purifoy explained that, just after
the shooting, Thompkins, holding a pistol, told Purifoy, “What the
hell you doing? Pull off.” Purifoy then drove away from the scene.
App. 170a.

															   So that the Thompkins jury could assess
Purifoy’s credibility and knowledge, the prosecution elicited
testimony from Purifoy that he had been tried earlier for the
shooting under an aiding-and-abetting theory. Purifoy and Detective
Helgert testified that a jury acquitted him of the murder and
assault charges, convicted him of carrying a concealed weapon in a
motor vehicle, and hung on two other firearms offenses to which he
later pleaded guilty. At Purifoy’s trial, the prosecution had
argued that Purifoy was the driver and Thompkins was the shooter.
This was consistent with the prosecution’s argument at Thompkins’s
trial.

															   After Purifoy’s trial had ended—but before
Thompkins’s trial began—Purifoy sent Thompkins some letters. The
letters expressed Purifoy’s disappointment that Thompkins’s family
thought Purifoy was a “snitch” and a “rat.” Id. , at
179a–180a. In one letter Purifoy offered to send a copy of his
trial transcript to Thompkins as proof that Purifoy did not place
the blame on Thompkins for the shooting. Id. , at 180a. The
letters also contained statements by Purifoy that claimed they were
both innocent. Id. , at 178a–179a. At Thompkins’s trial,
the prosecution suggested that one of Purifoy’s letters appeared to
give Thompkins a trial strategy. It was, the prosecution suggested,
that Woodward shot the victims, allowing Purifoy and Thompkins to
say they dropped to the floor when the shooting started. Id. , at 187a–189a.

															   During closing arguments, the prosecution
suggested that Purifoy lied when he testified that he did not see
Thompkins shoot the victims:

															“Did Eric Purifoy’s Jury make the right decision?
I’m not here to judge that. You are not bound by what his Jury
found. Take his testimony for what it was, [a] twisted attempt to
help not just an acquaintance but his tight buddy.” Id. ,
at 202a.

															Defense counsel did not object. Defense counsel
also did not ask for an instruction informing the jury that it
could consider evidence of the outcome of Purifoy’s trial only to
assess Purifoy’s credibility, not to establish Thompkins’s
guilt.

															   The jury found Thompkins guilty on all counts.
He was sentenced to life in prison without parole.

															B

															   The trial court denied a motion
for new trial filed by Thompkins’s appellate counsel. The trial
court rejected the claim of ineffective assistance of trial counsel
for failure to ask for a limiting instruction regarding the outcome
of Purifoy’s trial, reasoning that this did not prejudice
Thompkins. Id. , at 236a.

															   Thompkins appealed this ruling,
along with the trial court’s refusal to suppress his pretrial
statements under Miranda . The Michigan Court of Appeals
rejected the Miranda claim, ruling that Thompkins had not
invoked his right to remain silent and had waived it. It also
rejected the ineffective-assistance-of-counsel claim, finding that
Thompkins failed to show that evidence of Purifoy’s conviction for
firearms offenses resulted in prejudice. App. to Pet. for Cert.
74a–82a. The Michigan Supreme Court denied discretionary review.
471 Mich. 866, 683 N. W. 2d 676 (2004) (table).

															   Thompkins filed a petition for a writ of
habeas corpus in the United States District Court for the Eastern
District of Michigan. The District Court rejected Thompkins’s Miranda and ineffective-assistance claims. App. to Pet.
for Cert. 39a–72a. It noted that, under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), a federal court cannot
grant a petition for a writ of habeas corpus unless the state
court’s adjudication of the merits was “contrary to, or involved an
unreasonable application of, clearly established Federal law.” 28
U. S. C. §2254(d)(1). The District Court reasoned that
Thompkins did not invoke his right to remain silent and was not
coerced into making statements during the interrogation. It held
further that the Michigan Court of Appeals was not unreasonable in
determining that Thompkins had waived his right to remain
silent.

															   The United States Court of Appeals for the
Sixth Circuit reversed, ruling for Thompkins on both his Miranda and ineffective-assistance-of-counsel claims. 547
F. 3d 572 (2008). The Court of Appeals ruled that the state
court, in rejecting Thompkins’s Miranda claim,
unreasonably applied clearly established federal law and based its
decision on an unreasonable determination of the facts. See 28 U.
S. C. §2254(d). The Court of Appeals acknowledged that a
waiver of the right to remain silent need not be express, as it can
be “ ‘inferred from the actions and words of the person
interrogated.’ ” 547 F. 3d, at 582 (quoting North
Carolina v. Butler , 441 U. S. 369 , 373
(1979)). The panel held, nevertheless, that the state court was
unreasonable in finding an implied waiver in the circumstances
here. The Court of Appeals found that the state court unreasonably
determined the facts because “the evidence demonstrates that
Thompkins was silent for two hours and forty-five minutes.” 547
F. 3d, at 586. According to the Court of Appeals, Thompkins’s
“persistent silence for nearly three hours in response to
questioning and repeated invitations to tell his side of the story
offered a clear and unequivocal message to the officers: Thompkins
did not wish to waive his rights.” Id. , at 588.

															   The Court of Appeals next determined that the
state court unreasonably applied clearly established federal law by
rejecting Thompkins’s ineffective-assistance-of-counsel claim based
on counsel’s failure to ask for a limiting instruction regarding
Purifoy’s acquittal. The Court of Appeals asserted that because
Thompkins’s central strategy was to pin the blame on Purifoy, there
was a reasonable probability that the result of Thompkins’s trial
would have been different if there had been a limiting instruction
regarding Purifoy’s acquittal.

															   We granted certiorari. 557 U. S. ___
(2009).

															II

															   Under AEDPA, a federal court may
not grant a habeas corpus application “with respect to any claim
that was adjudicated on the merits in State court proceedings,” 28
U. S. C. §2254(d), unless the state court’s decision “was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States,” §2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding,” §2254(d)(2). See Knowles v. Mirzayance , 556 U. S. ___, ___ (2009) (slip op., at 1).
The relevant state-court decision here is the Michigan Court of
Appeals’ decision affirming Thompkins’s conviction and rejecting
his Miranda and ineffective-assistance-of-counsel claims
on the merits.

															III

															   The Miranda Court
formulated a warning that must be given to suspects before they can
be subjected to custodial interrogation. The substance of the
warning still must be given to suspects today. A suspect in custody
must be advised as follows:

															“He must be warned prior to any questioning that he
has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an attorney
one will be appointed for him prior to any questioning if he so
desires.” 384 U. S., at 479.

															All concede that the warning given in this case was
in full compliance with these requirements. The dispute centers on
the response—or nonresponse—from the suspect.

															A

															   Thompkins makes various arguments
that his answers to questions from the detectives were
inadmissible. He first contends that he “invoke[d] his privilege”
to remain silent by not saying anything for a sufficient period of
time, so the interrogation should have “cease[d]” before he made
his inculpatory statements. Id. , at 474; see Mosley , 423 U. S., at 103 (police must
“ ‘scrupulously hono[r]’ ” this “critical safeguard” when
the accused invokes his or her “ ‘right to cut off
questioning’ ” (quoting Miranda , supra , at
474, 479)).

															   This argument is unpersuasive. In
the context of invoking the Miranda right to counsel, the
Court in Davis v. United States , 512 U. S. 452 , 459
(1994), held that a suspect must do so “unambiguously.” If an
accused makes a statement concerning the right to counsel “that is
ambiguous or equivocal” or makes no statement, the police are not
required to end the interrogation, ibid. , or ask questions
to clarify whether the accused wants to invoke his or her Miranda rights, 512 U. S., at 461–462.

															   The Court has not yet stated whether an
invocation of the right to remain silent can be ambiguous or
equivocal, but 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 . See, e.g., Solem v. Stumes , 465 U. S. 638 , 648
(1984) (“[M]uch of the logic and language of [Mosley] ,”
which discussed the Miranda right to remain silent, “could
be applied to the invocation of the [ Miranda right to
counsel]”). Both protect the privilege against compulsory
self-incrimination, Miranda , supra , at 467–473,
by requiring an interrogation to cease when either right is
invoked, Mosley , supra , at 103 (citing Miranda , supra , at 474); Fare v. Michael C. , 442 U. S. 707 , 719
(1979).

															   There is good reason to require an accused who
wants to invoke his or her right to remain silent to do so
unambiguously. A requirement of an unambiguous invocation of Miranda rights 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. Davis , 512 U. S., at 458–459. If an ambiguous act,
omission, or statement could require police to end the
interrogation, police would be required to make difficult decisions
about an accused’s unclear intent and face the consequence of
suppression “if they guess wrong.” Id. , at 461.
Suppression of a voluntary confession in these circumstances would
place a significant burden on society’s interest in prosecuting
criminal activity. See id. , at 459–461; Moran v. Burbine , 475 U. S. 412 , 427
(1986). Treating an ambiguous or equivocal act, omission, or
statement as an invocation of Miranda rights “might add
marginally to Miranda ’s goal of dispelling the compulsion
inherent in custodial interrogation.” Burbine , 475 U. S.,
at 425. But “as Miranda holds, full comprehension of the
rights to remain silent and request an attorney are sufficient to
dispel whatever coercion is inherent in the interrogation process.” Id. , at 427; see Davis , supra , at
460.

															   Thompkins did not say that he wanted to remain
silent or that he did not want to talk with the police. Had he made
either of these simple, unambiguous statements, he would have
invoked his “ ‘right to cut off questioning.’ ” Mosley , supra , at 103 (quoting Miranda , supra , at 474). Here he did neither, so he did not invoke
his right to remain silent.

															B

															   We next consider whether
Thompkins waived his right to remain silent. Even absent the
accused’s invocation of the right to remain silent, the accused’s
statement during a custodial interrogation is inadmissible at trial
unless the prosecution can establish that the accused “in fact
knowingly and voluntarily waived [Miranda] rights” when
making the statement. Butler , 441 U. S., at 373. The
waiver inquiry “has two distinct dimensions”: waiver must be
“voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or
deception,” and “made with a full awareness of both the nature of
the right being abandoned and the consequences of the decision to
abandon it.” Burbine , supra , at 421.

															   Some language in Miranda could be read to indicate that waivers are difficult to establish
absent an explicit written waiver or a formal, express oral
statement. Miranda said “a valid waiver will not be
presumed simply from the silence of the accused after warnings are
given or simply from the fact that a confession was in fact
eventually obtained.” 384 U. S., at 475; see id. , at 470
(“No effective waiver . . . can be recognized unless specifically
made after the [Miranda] warnings . . . have been given”).
In addition, the Miranda Court stated that “a heavy burden
rests on the government to demonstrate that the defendant knowingly
and intelligently waived his privilege against self-incrimination
and his right to retained or appointed counsel.” Id. , at
475.

															   The course of decisions since Miranda , informed by the application of Miranda warnings in the whole course of law enforcement, demonstrates that
waivers can be established even absent formal or express statements
of waiver that would be expected in, say, a judicial hearing to
determine if a guilty plea has been properly entered. Cf. Fed. Rule
Crim. Proc. 11. The main purpose of Miranda is to
ensure that an accused is advised of and understands the right to
remain silent and the right to counsel. See Davis , supra , at 460; Burbine , supra , at 427.
Thus, “[i]f anything, our subsequent cases have reduced the impact
of the Miranda rule on legitimate law enforcement while
reaffirming the decision’s core ruling that unwarned statements may
not be used as evidence in the prosecution’s case in chief.” Dickerson v. United States , 530 U. S. 428 , 443–444
(2000).

															   One of the first cases to decide the meaning
and import of Miranda with respect to the question of
waiver was North Carolina v. Butler . The Butler Court, after discussing some of the problems
created by the language in Miranda , established certain
important propositions. Butler interpreted the Miranda language concerning the “heavy burden” to show
waiver, 384 U. S., at 475, in accord with usual principles of
determining waiver, which can include waiver implied from all the
circumstances. See Butler , supra , at 373, 376.
And in a later case, the Court stated that this “heavy burden” is
not more than the burden to establish waiver by a preponderance of
the evidence. Colorado v. Connelly , 479 U. S. 157 , 168
(1986).

															   The prosecution therefore does not need to
show that a waiver of Miranda rights was express. An
“implicit waiver” of the “right to remain silent” is sufficient to
admit a suspect’s statement into evidence. Butler , supra , at 376. Butler made clear that a waiver of Miranda rights may be implied through “the defendant’s
silence, coupled with an understanding of his rights and a course
of conduct indicating waiver.” 441 U. S., at 373. The Court in Butler therefore “retreated” from the “language and tenor
of the Miranda opinion,” which “suggested that the Court
would require that a waiver . . . be ‘specifically made.’ ” Connecticut v. Barrett , 479 U. S. 523 , 531–532
(1987) (Brennan, J., concurring in judgment).

															   If the State establishes that a Miranda warning was given and the accused made an
uncoerced statement, this showing, standing alone, is insufficient
to demonstrate “a valid waiver” of Miranda rights. Miranda , supra , at 475. The prosecution must make
the additional showing that the accused understood these rights.
See Colorado v. Spring , 479 U. S. 564 , 573–575
(1987); Barrett , supra , at 530; Burbine , supra , at 421–422. Cf. Tague v. Louisiana , 444 U. S. 469 , 469, 471
(1980) (per curiam) (no evidence that accused understood
his Miranda rights); Carnley v. Cochran , 369 U. S. 506 ,
516 (1962) (government could not show that accused
“understandingly” waived his right to counsel in light of “silent
record”). Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an
accused’s uncoerced statement establishes an implied waiver of the
right to remain silent.

															   Although Miranda imposes on the
police a rule that is both formalistic and practical when it
prevents them from interrogating suspects without first providing
them with a Miranda warning, see Burbine , 475 U.
S., at 427, it does not impose a formalistic waiver procedure that
a suspect must follow to relinquish those rights. As a general
proposition, the law can presume that an individual who, with a
full understanding of his or her rights, acts in a manner
inconsistent with their exercise has made a deliberate choice to
relinquish the protection those rights afford. See, e.g., Butler , supra , at 372–376; Connelly , supra , at 169–170 (“There is obviously no reason to
require more in the way of a ‘voluntariness’ inquiry in the Miranda waiver context than in the [due process]
confession context”). The Court’s cases have recognized that a
waiver of Miranda rights need only meet the standard of Johnson v. Zerbst , 304 U. S. 458 , 464
(1938). See Butler , supra , at 374–375; Miranda , supra , at 475–476 (applying Zerbst standard of intentional relinquishment of a known
right). As Butler recognized, 441 U. S., at 375–376, Miranda rights can therefore be waived through means less
formal than a typical waiver on the record in a courtroom, cf. Fed.
Rule Crim. Proc. 11, given the practical constraints and
necessities of interrogation and the fact that Miranda ’s
main protection lies in advising defendants of their rights, see Davis , 512 U. S., at 460; Burbine , 475 U. S., at
427.

															   The record in this case shows that Thompkins
waived his right to remain silent. There is no basis in this case
to conclude that he did not understand his rights; and on these
facts it follows that he chose not to invoke or rely on those
rights when he did speak. First, there is no contention that
Thompkins did not understand his rights; and from this it follows
that he knew what he gave up when he spoke. See id. , at
421. There was more than enough evidence in the record to conclude
that Thompkins understood his Miranda rights. Thompkins
received a written copy of the Miranda warnings; Detective
Helgert determined that Thompkins could read and understand
English; and Thompkins was given time to read the warnings.
Thompkins, furthermore, read aloud the fifth warning, which stated
that “you have the right to decide at any time before or during
questioning to use your right to remain silent and your right to
talk with a lawyer while you are being questioned.” Brief for
Petitioner 60 (capitalization omitted). He was thus aware that his
right to remain silent would not dissipate after a certain amount
of time and that police would have to honor his right to be silent
and his right to counsel during the whole course of interrogation.
Those rights, the warning made clear, could be asserted at any
time. Helgert, moreover, read the warnings aloud.

															   Second, Thompkins’s answer to Detective
Helgert’s question about whether Thompkins prayed to God for
forgiveness for shooting the victim is a “course of conduct
indicating waiver” of the right to remain silent. Butler , supra , at 373. If Thompkins wanted to remain silent, he
could have said nothing in response to Helgert’s questions, or he
could have unambiguously invoked his Miranda rights and
ended the interrogation. The fact that Thompkins made a statement
about three hours after receiving a Miranda warning does
not overcome the fact that he engaged in a course of conduct
indicating waiver. Police are not required to rewarn suspects from
time to time. Thompkins’s answer to Helgert’s question about
praying to God for forgiveness for shooting the victim was
sufficient to show a course of conduct indicating waiver. This is
confirmed by the fact that before then Thompkins had given sporadic
answers to questions throughout the interrogation.

															   Third, there is no evidence that Thompkins’s
statement was coerced. See Burbine , supra , at
421. Thompkins does not claim that police threatened or injured him
during the interrogation or that he was in any way fearful. The
interrogation was conducted in a standard-sized room in the middle
of the afternoon. It is true that apparently he was in a
straight-backed chair for three hours, but there is no authority
for the proposition that an interrogation of this length is
inherently coercive. Indeed, even where interrogations of greater
duration were held to be improper, they were accompanied, as this
one was not, by other facts indicating coercion, such as an
incapacitated and sedated suspect, sleep and food deprivation, and
threats. Cf. Connelly , 479 U. S., at 163–164, n. 1.
The fact that Helgert’s question referred to Thompkins’s religious
beliefs also did not render Thompkins’s statement involuntary.
“[T]he Fifth Amendment privilege is not concerned ‘with moral and
psychological pressures to confess emanating from sources other
than official coercion.’ ” Id. , at 170 (quoting Oregon v. Elstad , 470 U. S. 298 , 305
(1985)). In these circumstances, Thompkins knowingly and
voluntarily made a statement to police, so he waived his right to
remain silent.

															C

															   Thompkins next argues that, even
if his answer to Detective Helgert could constitute a waiver of his
right to remain silent, the police were not allowed to question him
until they obtained a waiver first. Butler forecloses this
argument. The Butler Court held that courts can infer a
waiver of Miranda rights “from the actions and words of
the person interrogated.” 441 U. S., at 373. This principle would
be inconsistent with a rule that requires a waiver at the outset.
The Butler Court thus rejected the rule proposed by the Butler dissent, which would have “requir[ed] the police to
obtain an express waiver of [ Miranda rights] before
proceeding with interrogation.” Id. , at 379 (Brennan, J.,
dissenting). This holding also makes sense given that “the primary
protection afforded suspects subject[ed] to custodial interrogation
is the Miranda warnings themselves.” Davis , 512
U. S., at 460. The Miranda rule and its requirements are
met if a suspect receives adequate Miranda warnings,
understands them, and has an opportunity to invoke the rights
before giving any answers or admissions. Any waiver, express or
implied, may be contradicted by an invocation at any time. If the
right to counsel or the right to remain silent is invoked at any
point during questioning, further interrogation must cease.

															   Interrogation provides the
suspect with additional information that can put his or her
decision to waive, or not to invoke, into perspective. As
questioning commences and then continues, the suspect has the
opportunity to consider the choices he or she faces and to make a
more informed decision, either to insist on silence or to
cooperate. When the suspect knows that Miranda rights can
be invoked at any time, he or she has the opportunity to reassess
his or her immediate and long-term interests. Cooperation with the
police may result in more favorable treatment for the suspect; the
apprehension of accomplices; the prevention of continuing injury
and fear; beginning steps towards relief or solace for the victims;
and the beginning of the suspect’s own return to the law and the
social order it seeks to protect.

															   In order for an accused’s statement to be
admissible at trial, police must have given the accused a Miranda warning. See Miranda , 384 U. S., at 471.
If that condition is established, the court can proceed to consider
whether there has been an express or implied waiver of Miranda rights. Id. , at 476. In making its ruling
on the admissibility of a statement made during custodial
questioning, the trial court, of course, considers whether there is
evidence to support the conclusion that, from the whole course of
questioning, an express or implied waiver has been established.
Thus, after giving a Miranda warning, police may
interrogate a suspect who has neither invoked nor waived his or her Miranda rights. On these premises, it fol- lows the police
were not required to obtain a waiver of Thompkins’s Miranda rights before commencing the interrogation.

															D

															   In sum, a suspect who has
received and understood the Miranda warnings, and has not
invoked his Miranda rights, waives the right to remain
silent by making an uncoerced statement to the police. Thompkins
did not invoke his right to remain silent and stop the questioning.
Understanding his rights in full, he waived his right to remain
silent by making a voluntary statement to the police. The police,
moreover, were not required to obtain a waiver of Thompkins’s right
to remain silent before interrogating him. The state court’s
decision rejecting Thompkins’s Miranda claim was thus
correct under de novo review and therefore necessarily
reasonable under the more deferential AEDPA standard of review, 28
U. S. C. §2254(d). See Knowles , 556 U. S., at ___
(slip op., at 11) (state court’s decision was correct under de
novo review and not unreasonable under AEDPA).

															IV

															   The second issue in this case is
whether Thompkins’s counsel provided ineffective assistance by
failing to request a limiting instruction regarding how the jury
could consider the outcome of Purifoy’s trial. To establish
ineffective assistance of counsel, a defendant “must show both
deficient performance and prejudice.” Id. , at ___ (slip
op., at 10) (citing Strickland , 466 U. S., at 687). To
establish prejudice, a “defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland , 466 U. S., at 694. In assessing prejudice,
courts “must consider the totality of the evidence before the judge
or jury.” Id. , at 695. The Court of Appeals, however,
neglected to take into account the other evidence presented against
Thompkins.

															   The Court of Appeals determined
that the state court was unreasonable, 28 U. S. C. §2254(d),
when it found that Thompkins suffered no prejudice from failure of
defense counsel to request an instruction regarding Purifoy’s
earlier acquittal of the murder and assault charges. The state
court had rejected Thompkins’s claim that he was prejudiced by
evidence of Purifoy’s earlier conviction for firearms offenses,
noting that “the record does not disclose an attempt to argue that
conviction for an improper purpose.” App. to Pet. for Cert. 80a. It
is unclear what prejudice standard the state court applied. The
Court of Appeals ruled that the state court used the incorrect
standard for assessing prejudice under Strickland because
“[q]uestions of the prosecution’s purpose or intent are completely
irrelevant in analyzing whether an error resulted in prejudice,
which by definition concerns the error’s effect upon the outcome.”
547 F. 3d, at 591–592 (emphasis deleted).

															   Even if the state court used an incorrect
legal standard, we need not determine whether AEDPA’s deferential
standard of review, 28 U. S. C. §2254(d), applies in this
situation. Cf. Williams v. Taylor , 529 U. S. 362 , 397–398
(2000). That is because, even if AEDPA deference does not apply,
Thompkins cannot show prejudice under de novo review, the
more favorable standard of review for Thompkins. Courts cannot
grant writs of habeas corpus under §2254 by engaging only in de
novo review when it is unclear whether AEDPA deference
applies, §2254(d). In those situations, courts must resolve whether
AEDPA deference applies, because if it does, a habeas petitioner
may not be entitled to a writ of habeas corpus under §2254(d).
Courts can, however, deny writs of habeas corpus under §2254 by
engaging in de novo review when it is unclear whether
AEDPA deference applies, because a habeas petitioner will not be
entitled to a writ of habeas corpus if his or her claim is rejected
on de novo review, see §2254(a).

															   It seems doubtful that failure to request the
instruction about the earlier acquittal or conviction was deficient
representation; but on the assumption that it was, on this record
Thompkins cannot show prejudice. The record establishes that it was
not reasonably likely that the instruction would have made any
difference in light of all the other evidence of guilt. The
surviving victim, Frederick France, identified Thompkins as the
shooter, and the identification was supported by a photograph taken
from a surveillance camera. Thompkins’s friend Omar Stephens
testified that Thompkins confessed to him during a phone
conversation, and the details of that confession were corroborated
by evidence that Thompkins stripped the van and abandoned it after
the shooting. The jury, moreover, was capable of assessing
Purifoy’s credibility, as it was instructed to do. The jury in
Thompkins’s case could have concluded that the earlier jury in
Purifoy’s case made a mistake, or alternatively, that Purifoy was
not in fact guilty of the crime for which he had been charged.
There was ample evidence in the record to support Thompkins’s guilt
under either theory, and his jury was instructed to weigh all of
the evidence in determining whether there was guilt beyond a
reasonable doubt. Under our de novo review of this record,
Thompkins cannot show prejudice.

															*  *  *

															   The judgment of the Court of
Appeals is reversed, and the case is remanded with instructions to
deny the petition.

															It is so ordered. SOTOMAYOR, J., DISSENTING BERGHUIS V. THOMPKINS 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1470 MARY BERGHUIS, WARDEN, PETITIONER v. VAN
CHESTER THOMPKINS

															on writ of certiorari to the united states court of
appeals for the sixth circuit

															[June 1, 2010]

															   Justice Sotomayor, with whom
Justice Stevens, Justice Ginsburg, and Justice Breyer join,
dissenting.

															   The Court concludes today that a
criminal suspect waives his right to remain silent if, after
sitting tacit and uncommunicative through nearly three hours of
police interrogation, he utters a few one-word responses. The Court
also concludes that a suspect who wishes to guard his right to
remain silent against such a finding of “waiver” must,
counterintuitively, speak—and must do so with sufficient precision
to satisfy a clear-statement rule that construes ambiguity in favor
of the police. Both propositions mark a substantial retreat from
the protection against compelled self-incrimination that Miranda v. Arizona , 384 U. S. 436 (1966),
has long provided during custodial interrogation. The broad rules
the Court announces today are also troubling because they are
unnecessary to decide this case, which is governed by the
deferential standard of review set forth in the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C.
§2254(d). Because I believe Thompkins is entitled to relief under
AEDPA on the ground that his statements were admitted at trial
without the prosecution having carried its burden to show that he
waived his right to remain silent; because longstanding principles
of judicial restraint counsel leaving for another day the questions
of law the Court reaches out to decide; and because the Court’s
answers to those questions do not result from a faithful
application of our prior decisions, I respectfully dissent.

															I

															   We granted certiorari to review
the judgment of the Court of Appeals for the Sixth Circuit, which
held that Thompkins was entitled to habeas relief under both Miranda and Strickland v. Washington , 466 U. S. 668 (1984). 547 F. 3d 572 (2008). As to the Miranda claims, Thompkins argues first that through his conduct during the
3-hour custodial interrogation he effectively invoked his right to
remain silent, requiring police to cut off questioning in
accordance with Miranda and Michigan v. Mosley , 423
U. S. 96 (1975). Thompkins also contends his statements were in
any case inadmissible because the prosecution failed to meet its
heavy burden under Miranda of proving that he knowingly
and intelligently waived his right to remain silent. The Sixth
Circuit agreed with Thompkins as to waiver and declined to reach
the question of invocation. 547 F. 3d, at 583–584, n. 4.
In my view, even if Thompkins cannot prevail on his invocation
claim under AEDPA, he is entitled to relief as to waiver. Because I
would affirm the judgment of the Sixth Circuit on that ground, I
would not reach Thompkins’ claim that he received constitutionally
ineffective assistance of counsel.

															   The strength of Thompkins’ Miranda claims depends in large part on the circumstances
of the 3-hour interrogation, at the end of which he made
inculpatory statements later introduced at trial. The Court’s
opinion downplays record evidence that Thompkins remained almost
completely silent and unresponsive throughout that session. One of
the interrogating officers, Detective Helgert, testified that
although Thompkins was administered Miranda warnings, the
last of which he read aloud, Thompkins expressly declined to sign a
written acknowledgment that he had been advised of and understood
his rights. There is conflicting evidence in the record about
whether Thompkins ever verbally confirmed understanding his
rights.[ Footnote 1 ] The record
contains no indication that the officers sought or obtained an
express waiver.

															   As to the interrogation itself, Helgert
candidly characterized it as “very, very one-sided” and “nearly a
monologue.” App. 10a, 17a. Thompkins was “[p]eculiar,” “[s]ullen,”
and “[g]enerally quiet.” Id., at 149a. Helgert and his
partner “did most of the talking,” as Thompkins was “not verbally
communicative” and “[l]argely” remained silent. Id., at
149a, 17a, 19a. To the extent Thompkins gave any response, his
answers consisted of “a word or two. A ‘yeah,’ or a ‘no,’ or ‘I
don’t know.’ … And sometimes … he simply sat down … with [his] head
in [his] hands looking down. Sometimes … he would look up and make
eye-contact would be the only response.” Id., at 23a–24a.
After proceeding in this fashion for approximately 2 hours and 45
minutes, Helgert asked Thompkins three questions relating to his
faith in God. The prosecution relied at trial on Thompkins’
one-word answers of “yes.” See id., at 10a–11a.

															   Thompkins’ nonresponsiveness is particularly
striking in the context of the officers’ interview strategy, later
explained as conveying to Thompkins that “this was his opportunity
to explain his side [of the story]” because “[e]verybody else,
including [his] co-[d]efendants, had given their version,” and
asking him “[w]ho is going to speak up for you if you don’t speak
up for yourself?” Id., at 10a, 21a. Yet, Helgert confirmed
that the “ only thing [Thompkins said] relative to his
involvement [in the shooting]” occurred near the end of the
interview— i.e. , in response to the questions about God. Id., at 10a–11a (emphasis added). The only other responses
Helgert could remember Thompkins giving were that “ ‘[h]e
didn’t want a peppermint’ ” and “ ‘the chair that he was
sitting in was hard.’ ” Id., at 152a. Nevertheless,
the Michigan court concluded on this record that Thompkins had not
invoked his right to remain silent because “he continued to talk
with the officer, albeit sporadically,” and that he voluntarily
waived that right. App. to Pet. for Cert. 75a.

															   Thompkins’ federal habeas petition is governed
by AEDPA, under which a federal court may not grant the writ unless
the state court’s adjudication of the merits of the claim at issue
“was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States,” or “was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” §§2254(d)(1), (2).

															   The relevant clearly established federal law
for purposes of §2254(d)(1) begins with our landmark Miranda decision, which “g[a]ve force to the
Constitution’s protection against compelled self-incrimination” by
establishing “ ‘certain procedural safeguards that require
police to advise criminal suspects of their rights under the Fifth
and Fourteenth Amendments before commencing custodial
interrogation,’ ” Florida v. Powell , 559 U.
S. ___, ___–___ (2010) (slip op., at 7–8) (quoting Duckworth v. Eagan , 492 U. S. 195 , 201
(1989)). Miranda prescribed the now-familiar warnings that
police must administer prior to questioning. See 384 U. S., at 479; ante , at 8. Miranda and our subsequent cases also
require police to “respect the accused’s decision to exercise the
rights outlined in the warnings.” Moran v. Burbine , 475 U. S. 412 , 420
(1986). “If [an] individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent” or
if he “states that he wants an attorney,” the interrogation “must
cease.” 384 U. S., at 473–474.

															   Even when warnings have been administered and
a suspect has not affirmatively invoked his rights, statements made
in custodial interrogation may not be admitted as part of the
prosecution’s case in chief “unless and until” the prosecution
demonstrates that an individual “knowingly and intelligently
waive[d] [his] rights.” Id., at 479; accord, ante , at 10. “[A] heavy burden rests on the government to
demonstrate that the defendant knowingly and intelligently waived
his privilege against self-incrimination and his right to retained
or appointed counsel.” Miranda , 384 U. S., at 475. The
government must satisfy the “high standar[d] of proof for the
waiver of constitutional rights [set forth in] Johnson v. Zerbst , 304
U. S. 458 (1938).” Ibid. The question whether a suspect has validly
waived his right is “entirely distinct” as a matter of law from
whether he invoked that right. Smith v. Illinois , 469 U. S. 91 , 98
(1984) (per curiam) . The questions are related, however,
in terms of the practical effect on the exercise of a suspect’s
rights. A suspect may at any time revoke his prior waiver of
rights—or, closer to the facts of this case, guard against the
possibility of a future finding that he implicitly waived his
rights—by invoking the rights and thereby requiring the police to
cease questioning. Accord, ante , at 16.

															II

															A

															   Like the Sixth Circuit, I begin
with the question whether Thompkins waived his right to remain
silent. Even if Thompkins did not invoke that right, he is entitled
to relief because Michigan did not satisfy its burden of
establishing waiver. Miranda ’s discussion of
the prosecution’s burden in proving waiver speaks with particular
clarity to the facts of this case and therefore merits reproducing
at length:

															   “If [an] interrogation continues
without the presence of an attorney and a statement is taken, a
heavy burden rests on the government to demonstrate that the
defendant knowingly and intelligently waived his privilege against
self-incrimination and his right to retained or appointed
counsel… . Since the State is responsible for establishing the
isolated circumstances under which [an] interrogation takes place
and has the only means of making available corroborated evidence of
warnings given during incommunicado interrogation, the burden is
rightly on its shoulders.

															   “An express statement that the individual is
willing to make a statement and does not want an attorney followed
closely by a statement could constitute a waiver. But a valid
waiver will not be presumed simply from the silence of the accused
after warnings are given or simply from the fact that a confession
was in fact eventually obtained.” 384 U. S., at 475. Miranda went further in
describing the facts likely to satisfy the prosecution’s burden of
establishing the ad-missibility of statements obtained after a
lengthy interrogation:

															   “Whatever the testimony of the
authorities as to waiver of rights by an accused, the fact of
lengthy interrogation or incommunicado incarceration before a
statement is made is strong evidence that the accused did not
validly waive his rights. 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.” Id., at
476.

															   This Court’s decisions subsequent
to Miranda have emphasized the prosecution’s “heavy
burden” in proving waiver. See, e.g., Tague v. Louisiana , 444 U. S. 469 , 470–471
(1980) (per curiam); Fare v. Michael C. , 442 U. S. 707 ,
724 (1979). We have also reaffirmed that a court may not presume
waiver from a suspect’s silence or from the mere fact that a
confession was eventually obtained. See North Carolina v. Butler , 441
U. S. 369 , 373 (1979).

															   Even in concluding that Miranda does
not invariably require an express waiver of the right to silence or
the right to counsel, this Court in Butler made clear that
the prosecution bears a substantial burden in establishing an
implied waiver. The Federal Bureau of Investigation had obtained
statements after advising Butler of his rights and confirming that
he understood them. When presented with a written waiver-of-rights
form, Butler told the agents, “ ‘I will talk to you but I am
not signing any form.’ ” 441 U. S., at 371. He then made
inculpatory statements, which he later sought to suppress on the
ground that he had not expressly waived his right to counsel.

															   Although this Court reversed the state-court
judgment concluding that the statements were inadmissible, we
quoted at length portions of the Miranda opinion
reproduced above. We cautioned that even an “express written or
oral statement of waiver of the right to remain silent or of the
right to counsel” is not “inevitably … sufficient to establish
waiver,” emphasizing that “[t]he question is … whether the
defendant in fact knowingly and voluntarily waived the rights
delineated in the Miranda case.” 441 U. S., at 373. Miranda , we observed, “unequivocally said … mere silence
is not enough.” 441 U. S., at 373. While we stopped short in Butler of announcing a per se rule that “the
defendant’s silence, coupled with an understanding of his rights
and a course of conduct indicating waiver, may never support a
conclusion that a defendant has waived his rights,” we reiterated
that “courts must presume that a defendant did not waive his
rights; the prosecution’s burden is great.” Ibid.[ Footnote 2 ] Rarely do this Court’s precedents provide
clearly established law so closely on point with the facts of a
particular case. Together, Miranda and Butler establish 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.” Miranda , supra , at 475–476; Butler , supra , at
372–373.[ Footnote 3 ]

															   It is undisputed here that Thompkins never
expressly waived his right to remain silent. His refusal to sign
even an acknowledgment that he understood his Miranda rights evinces, if anything, an intent not to waive those rights.
Cf. United States v. Plugh , 576 F. 3d 135,
142 (CA2 2009) (suspect’s refusal to sign waiver-of-rights form
“constituted an unequivocally negative answer to the question …
whether he was willing to waive his rights”). That Thompkins did
not make the inculpatory statements at issue until after
approximately 2 hours and 45 minutes of interrogation serves as
“strong evidence” against waiver. Miranda and Butler expressly preclude the possibility that the
inculpatory statements themselves are sufficient to establish
waiver.

															   In these circumstances, Thompkins’ “actions
and words” preceding the inculpatory statements simply do not
evidence a “course of conduct indicating waiver” sufficient to
carry the prosecution’s burden. See Butler , supra , at 373.[ Footnote
4 ] Although the Michigan court stated that Thompkins
“sporadically” participated in the interview, App. to Pet. for
Cert. 75a, that court’s opinion and the record before us are silent
as to the subject matter or context of even a single question to
which Thompkins purportedly responded, other than the exchange
about God and the statements respecting the peppermint and the
chair. Unlike in Butler , Thompkins made no initial
declaration akin to “I will talk to you.” See also 547 F. 3d,
at 586–587 (case below) (noting that the case might be different if
the record showed Thompkins had responded affirmatively to an
invitation to tell his side of the story or described any
particular question that Thompkins answered). Indeed, Michigan and
the United States concede that no waiver occurred in this case
until Thompkins responded “yes” to the questions about God. See Tr.
of Oral Arg. 7, 30. I believe it is objectively unreasonable under
our clearly established precedents to conclude the prosecution met
its “heavy burden” of proof on a record consisting of three
one-word answers, following 2 hours and 45 minutes of silence
punctuated by a few largely nonverbal responses to unidentified
questions.

															B

															   Perhaps because our prior Miranda precedents so clearly favor Thompkins, the Court
today goes beyond AEDPA’s deferential standard of review and
announces a new general principle of law. Any new rule, it must be
emphasized, is unnecessary to the disposition of this case. If, in
the Court’s view, the Michigan court did not unreasonably apply our Miranda precedents in denying Thompkins relief, it should
simply say so and reverse the Sixth Circuit’s judgment on that
ground. “It is a fundamental rule of judicial restraint … that this
Court will not reach constitutional questions in advance of the
necessity of deciding them.” Three Affiliated Tribes of Fort
Berthold Reservation v. Wold Engineering, P. C. , 467 U. S. 138 ,
157 (1984). Consistent with that rule, we have frequently declined
to address questions beyond what is necessary to resolve a case
under AEDPA. See, e.g., Tyler v. Cain , 533 U. S. 656 ,
667–668 (2001) (declining to address question where any statement
by this Court would be “dictum” in light of AEDPA’s statutory
constraints on habeas review); cf. Wiggins v. Smith , 539
U. S. 510 , 522 (2003) (noting that Williams v. Taylor , 529
U. S. 362 (2000), “made no new law” because the “case was
before us on habeas review”). No necessity exists to justify the
Court’s broad announcement today.

															   The Court concludes that when Miranda warnings have been given and understood, “an
accused’s uncoerced statement establishes an implied waiver of the
right to remain silent.” Ante , at 12–13. More broadly
still, the Court states that, “[a]s a general proposition, the law
can presume that an individual who, with a full understanding of
his or her rights, acts in a manner inconsistent with their
exercise has made a deliberate choice to relinquish the protection
those rights afford.” Ante , at 13.

															   These principles flatly contradict our
longstanding views that “a valid waiver will not be presumed …
simply from the fact that a confession was in fact eventually
obtained,” Miranda , 384 U. S., at 475, and that “[t]he
courts must presume that a defendant did not waive his rights,” Butler , 441 U. S., at 373. Indeed, we have in the past
summarily reversed a state-court decision that inverted Miranda ’s antiwaiver presumption, characterizing the error
as “readily apparent.” Tague , 444 U. S., at 470–471. At
best, the Court today creates an unworkable and conflicting set of
presumptions that will undermine Miranda ’s goal of
providing “concrete constitutional guidelines for law enforcement
agencies and courts to follow,” 384 U. S., at 442. At worst, it
overrules sub silentio an essential aspect of the
protections Miranda has long provided for the
constitutional guarantee against self-incrimination.

															   The Court’s conclusion that Thompkins’
inculpatory statements were sufficient to establish an implied
waiver, ante , at 14, finds no support in Butler . Butler itself distinguished between a sufficient “course
of conduct” and inculpatory statements, reiterating Miranda ’s admonition that “ ‘a valid waiver will not
be presumed simply from … the fact that a confession was in fact
eventually obtained.’ ” Butler , supra , at
373 (quoting Miranda , supra , at 475). Michigan
suggests Butler’s silence “ ‘when advised of his right to the
assistance of a lawyer,’ ” combined with our remand for the
state court to apply the implied-waiver standard, shows that
silence followed by statements can be a “ ‘course of
conduct.’ ” Brief for Petitioner 26 (quoting Butler , supra , at 371). But the evidence of implied waiver in Butler was worlds apart from the evidence in this case,
because Butler unequivocally said “I will talk to you” after having
been read Miranda warnings. Thompkins, of course, made no
such statement.

															   The Court also relies heavily on Burbine in characterizing the scope of the prosecution’s
burden in proving waiver. Consistent with Burbine , the
Court observes, the prosecution must prove that waiver was
“ ‘voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation’ ” and
“ ‘made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon
it.’ ” Ante , at 10 (quoting 475 U. S., at 421). I
agree with the Court’s statement, so far as it goes. What it omits,
however, is that the prosecution also bears an antecedent burden of
showing there was, in fact, either an express waiver or a “course
of conduct” sufficiently clear to support a finding of implied
waiver. Nothing in Burbine even hints at removing that
obligation. The question in that case, rather, was whether a
suspect’s multiple express waivers of his rights were invalid
because police “misinformed an inquiring attorney about their plans
concerning the suspect or because they failed to inform the suspect
of the attorney’s efforts to reach him.” Id., at 420; see
also Colorado v. Spring , 479 U. S. 564 , 573
(1987). The Court’s analysis in Burbine was predicated on
the existence of waiver-in-fact.

															   Today’s dilution of the prosecution’s burden
of proof to the bare fact that a suspect made inculpatory
statements after Miranda warnings were given and
understood takes an unprecedented step away from the “high
standards of proof for the waiver of constitutional rights” this
Court has long demanded. Miranda , supra , at 475;
cf. Brewer v. Williams , 430 U. S. 387 , 404
(1977) (“[C]ourts indulge in every reasonable presumption against
waiver”); Zerbst , 304 U. S., at 464. When waiver is to be
inferred during a custodial interrogation, there are sound reasons
to require evidence beyond inculpatory statements themselves. Miranda and our subsequent cases are premised on the idea
that custodial interrogation is inherently coercive. See 384 U. S.,
at 455 (“Even without employing brutality, the ‘third degree’ or
[other] specific strategems … the very fact of custodial
interrogation exacts a heavy toll on individual liberty and trades
on the weakness of individuals”); Dickerson v. United
States , 530 U.
S. 428 , 435 (2000). Requiring proof of a course of conduct
beyond the inculpatory statements themselves is critical to
ensuring that those statements are voluntary admissions and not the
dubious product of an overborne will.

															   Today’s decision thus ignores the important
interests Miranda safeguards. The underlying
constitutional guarantee against self-incrimination reflects “many
of our fundamental values and most noble aspirations,” our
society’s “preference for an accusatorial rather than an
inquisitorial system of criminal justice”; a “fear that
self-incriminating statements will be elicited by inhumane
treatment and abuses” and a resulting “distrust of self-deprecatory
statements”; and a realization that while the privilege is
“sometimes a shelter to the guilty, [it] is often a protection to
the innocent.” Withrow v. Williams , 507 U. S. 680 , 692
(1993) (internal quotation marks omitted). For 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.” Ibid. (some internal quotation marks
omitted). “By bracing against ‘the possibility of unreliable
statements in every instance of in-custody interrogation,’ ” Miranda ’s prophylactic rules serve to “ ‘protect the
fairness of the trial itself.’ ” 507 U. S., at 692 (quoting Johnson v. New Jersey , 384 U. S. 719 , 730
(1966); Schneckloth v. Bustamonte , 412 U. S. 218 , 240
(1973)). Today’s decision bodes poorly for the fundamental
principles that Miranda protects.

															III

															   Thompkins separately argues that
his conduct during the interrogation invoked his right to remain
silent, requiring police to terminate questioning. Like the Sixth
Circuit, I would not reach this question because Thompkins is in
any case entitled to relief as to waiver. But even if Thompkins
would not prevail on his invocation claim under AEDPA’s deferential
standard of review, I cannot agree with the Court’s much broader
ruling that a suspect must clearly invoke his right to silence by
speaking. Taken together with the Court’s reformulation of the
prosecution’s burden of proof as to waiver, today’s novel
clear-statement rule for invocation invites police to question a
suspect at length—notwithstanding his persistent refusal to answer
questions—in the hope of eventually obtaining a single inculpatory
response which will suffice to prove waiver of rights. Such a
result bears little semblance to the “fully effective” prophylaxis,
384 U. S., at 444, that Miranda requires.

															A

															   Thompkins’ claim for relief under
AEDPA rests on the clearly established federal law of Miranda and Mosley . In Miranda , the
Court concluded that “[i]f [an] individual indicates in any manner,
at any time prior to or during questioning, that he wishes to
remain silent, the interrogation must cease… . [A]ny statement
taken after the person invokes his privilege cannot be other than
the product of compulsion, subtle or otherwise.” 384 U. S., at
473–474. In Mosley , the Court said that a “critical
safeguard” of the right to remain silent is a suspect’s
“ ‘right to cut off questioning.’ ” 423 U. S., at 103
(quoting Miranda , supra , at 474). Thus, “the
admissibility of statements obtained after the person in custody
has decided to remain silent depends under Miranda on
whether his ‘right to cut off questioning’ was ‘scrupulously
honored.’ ” 423 U. S., at 104.[ Footnote 5 ]

															   Thompkins contends that in
refusing to respond to questions he effectively invoked his right
to remain silent, such that police were required to terminate the
interrogation prior to his inculpatory statements. In Michigan’s
view, Thompkins cannot prevail under AEDPA because this Court’s
precedents have not previously established whether a suspect’s
ambiguous statements or actions require the police to stop
questioning. We have held that a suspect who has “ ‘invoked
his right to have counsel present … is not subject to further
interrogation by the authorities until counsel has been made
available to him, unless [he] initiates further communication,
exchanges, or conversations with the police.’ ” Maryland v. Shatzer , 559 U. S. ___, ___ (2010)
(slip op., at 5) (quoting Edwards v. Arizona , 451 U. S. 477 ,
484–485 (1981)). Notwithstanding Miranda ’s statement that
“there can be no questioning” if a suspect “indicates in any manner
… that he wishes to consult with an attorney,” 384 U. S., at
444–445, the Court in Davis v. United States , 512 U. S. 452 ,
461 (1994) established a clear-statement rule for invoking the
right to counsel. After a suspect has knowingly and voluntarily
waived his Miranda rights, Davis held, police may
continue questioning “until and unless the suspect clearly requests an attorney.” 512 U. S., at 461 (emphasis added).

															   Because this Court has never decided whether Davis ’ clear-statement rule applies to an invocation of
the right to silence, Michigan contends, there was no clearly
established federal law prohibiting the state court from requiring
an unambiguous invocation. That the state court’s decision was not
objectively unreasonable is confirmed, in Michigan’s view, by the
number of federal Courts of Appeals to have applied Davis to invocation of the right to silence. Brief for Petitioner 44.

															   Under AEDPA’s deferential standard of review,
it is indeed difficult to conclude that the state court’s
application of our precedents was objectively unreasonable.
Although the duration and consistency of Thompkins’ refusal to
answer questions throughout the 3-hour interrogation provide
substantial evidence in support of his claim, Thompkins did not
remain absolutely silent, and this Court has not previously
addressed whether a suspect can invoke the right to silence by
remaining uncooperative and nearly silent for 2 hours and 45
minutes.

															B

															   The Court, however, eschews this
narrow ground of decision, instead extending Davis to hold
that police may continue questioning a suspect until he
unambiguously invokes his right to remain silent. Because Thompkins
neither said “he wanted to remain silent” nor said “he did not want
to talk with the police,” the Court concludes, he did not clearly
invoke his right to silence. Ante, at 8–10.[ Footnote 6 ]

															   I disagree with this novel
application of Davis . Neither the rationale nor holding of
that case compels today’s result. Davis involved the right
to counsel, not the right to silence. The Court in Davis reasoned that extending Edwards ’ “rigid” prophylactic rule
to ambiguous requests for a lawyer would transform Miranda into a “ ‘wholly irrational obstacl[e] to legitimate police
investigative activity’ ” by “needlessly prevent[ing] the
police from questioning a suspect in the absence of counsel even if
[he] did not wish to have a lawyer present.” Davis , supra , at 460. But Miranda itself “distinguished
between the procedural safeguards triggered by a request to remain
silent and a request for an attorney.” Mosley , supra , at 104, n. 10; accord, Edwards , supra , at 485. Mosley upheld the admission of
statements when police immediately stopped interrogating a suspect
who invoked his right to silence, but reapproached him after a
2-hour delay and obtained inculpatory responses relating to a
different crime after administering fresh Miranda warnings. The different effects of invoking the rights are
consistent with distinct standards for invocation. To the extent Mosley contemplates a more flexible form of prophylaxis
than Edwards —and, in particular, does not categorically
bar police from reapproaching a suspect who has invoked his right
to remain silent— Davis ’ concern about “ ‘wholly
irrational obstacles’ ” to police investigation applies with
less force.

															   In addition, the suspect’s equivocal reference
to a lawyer in Davis occurred only after he had
given express oral and written waivers of his rights. Davis ’ holding is explicitly predicated on that fact. See
512 U. S. , at 461 (“We therefore hold that, after a
knowing and voluntary waiver of the Miranda rights, law
enforcement officers may continue questioning until and unless the
suspect clearly requests an attorney”). The Court ignores this
aspect of Davis , as well as the decisions of numerous
federal and state courts declining to apply a clear-statement rule
when a suspect has not previously given an express waiver of
rights.[ Footnote 7 ]

															   In my mind, a more appropriate standard for
addressing a suspect’s ambiguous invocation of the right to remain
silent is the constraint Mosley places on questioning a
suspect who has invoked that right: The suspect’s “ ‘right to
cut off questioning’ ” must be “ ‘scrupulously
honored.’ ” See 423 U. S., at 104. Such a standard is
necessarily precautionary and fact specific. The rule would
acknowledge that some statements or conduct are so equivocal that
police may scrupulously honor a suspect’s rights without
terminating questioning—for instance, if a suspect’s actions are
reasonably understood to indicate a willingness to listen before
deciding whether to respond. But other statements or actions—in
particular, when a suspect sits silent throughout prolonged
interrogation, long past the point when he could be deciding
whether to respond—cannot reasonably be understood other than as an
invocation of the right to remain silent. Under such circumstances,
“scrupulous” respect for the suspect’s rights will require police
to terminate questioning under Mosley .[ Footnote 8 ]

															   To be sure, such a standard does not provide
police with a bright-line rule. Cf. ante , at 9–10. But, as
we have previously recognized, Mosley itself does not
offer clear guidance to police about when and how interrogation may
continue after a suspect invokes his rights. See Solem v. Stumes , 465
U. S. 638 , 648 (1984); see also Shatzer , 559 U. S., at
___ (Thomas, J., concurring in part and concurring in judgment)
(slip op., at 3). Given that police have for nearly 35 years
applied Mosley ’s fact-specific standard in questioning
suspects who have invoked their right to remain silent; that our
cases did not during that time resolve what statements or actions
suffice to invoke that right; and that neither Michigan nor the
Solicitor General have provided evidence in this case that the
status quo has proved unworkable, I see little reason to believe
today’s clear-statement rule is necessary to ensure effective law
enforcement. Davis ’ clear-statement rule is also a
poor fit for the right to silence. 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. Cf. Soffar v. Cockrell , 300 F.
3d 588, 603 (CA5 2002) (en banc) (DeMoss, J., dissenting) (“What in
the world must an individual do to exercise his constitutional
right to remain silent beyond actually, in fact, remaining
silent?”). By contrast, telling a suspect “he has the right to the
presence of an attorney, and that if he cannot afford an attorney
one will be appointed for him prior to any questioning if he so
desires,” Miranda , 384 U. S., at 479, implies the need for
speech to exercise that right. Davis ’ requirement that a
suspect must “clearly reques[t] an attorney” to terminate
questioning thus aligns with a suspect’s likely understanding of
the Miranda warnings in a way today’s rule does not. The
Court suggests Thompkins could have employed the “simple,
unambiguous” means of saying “he wanted to remain silent” or “did
not want to talk with the police.” Ante , at 10. But the Miranda warnings give no hint that a suspect should use
those magic words, and there is little reason to believe police—who
have ample incentives to avoid invocation—will provide such
guidance.

															   Conversely, the Court’s concern that police
will face “difficult decisions about an accused’s unclear intent”
and suffer the consequences of “ ‘guess[ing] wrong,’ ” ante, at 9–10 (quoting Davis , 512 U. S., at 461),
is misplaced. If a suspect makes an ambiguous statement or engages
in conduct that creates uncertainty about his intent to invoke his
right, police can simply ask for clarification. See id. ,
at 467 (Souter, J., concurring in judgment). It is hardly an
unreasonable burden for police to ask a suspect, for instance, “Do
you want to talk to us?” The majority in Davis itself
approved of this approach as protecting suspects’ rights while
“minimiz[ing] the chance of a confession [later] being suppressed.” Id., at 461. Given this straightforward mechanism by which
police can “scrupulously hono[r]” a suspect’s right to silence,
today’s clear-statement rule can only be seen as accepting “as
tolerable the certainty that some poorly expressed requests [to
remain silent] will be disregarded,” id. , at 471 (opinion
of Souter, J.), without any countervailing benefit. Police may well
prefer not to seek clarification of an ambiguous statement out of
fear that a suspect will invoke his rights. But “our system of
justice is not founded on a fear that a suspect will exercise his
rights. ‘If the exercise of constitutional rights will thwart the
effectiveness of a system of law enforcement, then there is
something very wrong with that system.’ ” Burbine ,
475 U. S., at 458 (Stevens, J., dissenting) (quoting Escobedo v. Illinois , 378 U. S. 478 , 490
(1964)).

															   The Court asserts in passing that treating
ambiguous statements or acts as an invocation of the right to
silence will only “ ‘marginally’ ” serve Miranda ’s goals. Ante , at 10. Experience suggests
the contrary. In the 16 years since Davis was decided,
ample evidence has accrued that criminal suspects often use
equivocal or colloquial language in attempting to invoke their
right to silence. A number of lower courts that have (erroneously,
in my view) imposed a clear-statement requirement for invocation of
the right to silence have rejected as ambiguous an array of
statements whose meaning might otherwise be thought plain.[ Footnote 9 ] At a minimum, these
decisions suggest that differentiating “clear” from “ambiguous”
statements is often a subjective inquiry. Even if some of the cited
decisions are themselves in tension with Davis ’ admonition
that a suspect need not “ ‘speak with the discrimination of an
Oxford don’ ” to invoke his rights, 512 U. S., at 459 (quoting id. , at 476 (opinion of Souter, J.)), they demonstrate
that today’s decision will significantly burden the exercise of the
right to silence. Notably, when a suspect “understands his
(expressed) wishes to have been ignored … in contravention of the
‘rights’ just read to him by his interrogator, he may well see
further objection as futile and confession (true or not) as the
only way to end his interrogation.” Id., at 472–473.

															   For these reasons, I believe a precautionary
requirement that police “scrupulously hono[r]” a suspect’s right to
cut off questioning is a more faithful application of our
precedents than the Court’s awkward and needless extension of Davis .

															*  *  *

															   Today’s decision turns Miranda upside down. Criminal suspects must now
unambiguously invoke their right to remain silent—which,
counterintuitively, requires them to speak. At the same time,
suspects will be legally presumed to have waived their rights even
if they have given no clear expression of their intent to do so.
Those results, in my view, find no basis in Miranda or our
subsequent cases and are inconsistent with the fair-trial
principles on which those precedents are grounded. Today’s broad
new rules are all the more unfortunate because they are unnecessary
to the disposition of the case before us. I respectfully
dissent. Footnote 1 At the suppression hearing, Detective Helgert
testified that after reading Thompkins the warnings, “I believe I
asked him if he understood the Rights, and I think I got a verbal
answer to that as a ‘yes.’ ” App. 9a. In denying the motion to
suppress, the trial court relied on that factual premise. Id., at 26a. In his later testimony at trial, Helgert
remembered the encounter differently. Asked whether Thompkins
“indicate[d] that he understood [the warnings]” after they had been
read, Helgert stated “I don’t know that I orally asked him that
question.” Id., at 148a. Nevertheless, the Michigan Court
of Appeals stated that Thompkins verbally acknowledged
understanding his rights. App. to Pet. for Cert. 75a. Footnote 2 The Court cites Colorado v. Connelly , 479 U. S. 157 , 168
(1986), for the proposition that the prosecution’s “ ‘heavy
burden’ ” under Miranda “is not more than the burden
to establish waiver by a preponderance of the evidence.” Ante , at 12. Connelly did reject a clear and
convincing evidence standard of proof in favor of a preponderance
burden. But nothing in Connelly displaced the core
presumption against finding a waiver of rights, and we have
subsequently relied on Miranda ’s characterization of the
prosecution’s burden as “heavy.” See Arizona v. Roberson , 486 U. S. 675 , 680
(1988). Footnote 3 Likely reflecting the great weight of the
prosecution’s burden in proving implied waiver, many contemporary
police training resources instruct officers to obtain a waiver of
rights prior to proceeding at all with an interrogation. See, e.g., F. Inbau, J. Reid, J. Buckley, & B. Jayne,
Criminal Interrogation and Confessions 491 (4th ed. 2004)
(hereinafter Inbau) (“Once [a] waiver is given, the police may
proceed with the interrogation”); D. Zulawski & D. Wicklander,
Practical Aspects of Interview and Interrogation 55 (2d ed. 2002)
(“Only upon the waiver of th[e] [Miranda] rights by the
suspect can an interrogation occur”); see also Brief for National
Association of Criminal Defense Lawyers et al. as Amici
Curiae 11–12 (hereinafter NACDL brief) (collecting
authorities). Footnote 4 Although such decisions are not controlling
under AEDPA, it is notable that lower courts have similarly
required a showing of words or conduct beyond inculpatory
statements. See, e.g., United States v. Wallace , 848 F. 2d 1464, 1475 (CA9 1988) (no implied
waiver when warned suspect “maintained her silence for … perhap[s]
as many as ten minutes” before answering a question); McDonald v. Lucas , 677 F. 2d 518, 521–522
(CA5 1982) (no implied waiver when defendant refused to sign waiver
and there was “no evidence of words or actions implying a waiver,
except the [inculpatory] statement”). Generally, courts have found
implied waiver when a warned suspect has made incriminating
statements “as part of a steady stream of speech or as part of a
back-and-forth conversation with the police,” or when a warned
suspect who previously invoked his right “spontaneously recommences
the dialogue with his interviewers.” Bui v. DiPaolo , 170 F. 3d 232, 240 (CA1 1999) (citation and
internal quotation marks omitted); see also United States v. Smith , 218 F. 3d 777, 781 (CA7 2000) (implied
waiver where suspect “immediately began talking to the agents after
refusing to sign the waiver form and continued to do so for an
hour”); United States v. Scarpa , 897 F. 2d
63, 68 (CA2 1990) (implied waiver where warned suspect engaged in a
“ ‘relaxed and friendly’ ” conversation with officers
during a 2-hour drive). Footnote 5 In holding that Mosley’s right had been
“ ‘scrupulously honored,’ ” the Court observed that he
was properly advised of his rights and indicated his understanding
in writing; that police “immediately ceased” interrogation when
Mosley stated he did not want to discuss the crime and allowed an
“interval of more than two hours” to pass before reapproaching
Mosley “at another location about an unrelated [crime]”; and that
Mosley was readministered “full and complete Miranda warnings at the outset of the second interrogation” and had a “full
and fair opportunity to exercise th[o]se options.” 423 U. S., at
103–105. Footnote 6 The Court also ignores a second available
avenue to avoid reaching the constitutional question. Because the
Sixth Circuit declined to decide Thompkins’ invocation claim, a
remand would permit the lower court to address the question in the
first instance. Cf. Cutter v. Wilkinson , 544 U. S. 709 , 718, n. 7
(2005). Footnote 7 See, e.g., United States v. Plugh , 576 F. 3d 135, 143 (CA2 2009) (“ Davis only provides guidance … [when] a defendant makes a claim that he subsequently invoked previously waived Fifth Amendment
rights”); United States v. Rodriguez , 518
F. 3d 1072, 1074 (CA9 2008) ( Davis ’ “ ‘clear
statement’ ” rule “applies only after the police have
already obtained an unambiguous and unequivocal waiver of Miranda rights”); State v. Tuttle , 2002
SD 94, ¶14, 650 N. W. 2d 20, 28; State v. Holloway , 2000 ME 172, ¶12, 760 A. 2d 223, 228; State v. Leyva , 951 P. 2d 738, 743 (Utah
1997). Footnote 8 Indeed, this rule appears to reflect
widespread contemporary police practice. Thompkins’ amici collect a range of training materials that instruct police not to
engage in prolonged interrogation after a suspect has failed to
respond to initial questioning. See NACDL Brief 32–34. One widely
used police manual, for example, teaches that a suspect who
“indicates,” “even by silence itself,” his unwillingness to answer
questions “has obviously exercised his constitutional privilege
against self-incrimination.” Inbau 498. Footnote 9 See United States v. Sherrod , 445 F. 3d 980, 982 (CA7 2006) (suspect’s
statement “ ‘I’m not going to talk about nothin’ ’ ” was
ambiguous, “as much a taunt—even a provocation—as it [was] an
invocation of the right to remain silent”); Burket v. Angelone , 208 F. 3d 172, 200 (CA4 2000) (upholding on
AEDPA review a state court’s conclusion that “ ‘I just don’t
think that I should say anything’ ” was not a clear request to
remain silent); State v. Jackson , 107 Ohio St. 3d
300, 310, 2006–Ohio–1, ¶¶96–98, 839 N. E. 2d 362, 373 (finding
ambiguous “ ‘I don’t even like talking about it man … I told
you … what happened, man … I mean, I don’t even want to, you know
what I’m saying, discuss no more about it, man’ ”); State v. Speed , 265 Kan. 26, 37–38, 961
P. 2d 13, 24 (1998) (finding ambiguous “ ‘[a]nd since
we’re not getting anywhere I just ask you guys to go ahead and get
this over with and go ahead and lock me up and let me go and deal
with Sedgwick County, I’m ready to go to Sedgwick County, let’s
go’ ”); State v. Markwardt , 2007 WI App 242,
¶1, 306 Wis. 2d 420, 424, 742 N. W. 2d 546, 548 (“ ‘Then
put me in jail. Just get me out of here. I don’t want to sit here
anymore, alright? I’ve been through enough today’ ” ambiguous
because it could be construed as part of
“ ‘thrust-and-parry’ ” between suspect and interrogator); State v. Deen , 42,403, pp. 2–4 (La. App.
4/27/07), 953 So. 2d 1057, 1058–1060 (“ ‘Okay, if you’re
implying that I’ve done it, I wish to not say any more. I’d like to
be done with this. Cause that’s just ridiculous. I wish I’d … don’t
wish to answer any more questions’ ” ambiguous because
conditioned on officer’s implication that suspect committed
specific assault). Courts have also construed statements as
expressing a desire to remain silent only about a particular
subject. See, e.g., People v. Silva , 45
Cal. 3d 604, 629–630, 754 P. 2d 1070, 1083–1084 (1988)
(“ ‘I really don’t want to talk about that’ ” only
conveyed unwillingness to discuss certain subjects). See generally
Strauss, The Sounds of Silence: Reconsidering the Invocation of the
Right to Remain Silent under Miranda , 17 Wm. & Mary
Bill Rights J. 773, 788–802 (2009) (surveying cases).