What Does Silence Signify? Investigating the Rhetoric of Silence in Berghuis v. Thompkins

Abstract

This article uses the Supreme Court's opinions in Berghuis v. Thompkins (2010) to show the risks of silence in communication. Theories of rhetorical silence celebrate silences' communicative potential; yet, Berghuis v. Thompkins (2010) offers rhetorical studies scholars an opportunity to examine the value of silence in a new situation, custodial interrogation. In Berghuis v. Thompkins (2010) the Court ruled that, despite nearly three hours of silence during police interrogation, Thompkins's two short utterances constituted a confession, and waived his right to remain silent. This article analyzes Thompkins's silence, first, using rhetorical silence literature, which fails to explain why the Court did not recognize Thompkins's silence as communicative. Then, this article employs H. P. Grice's theory of conversational implicature, which examines ambiguous utterances, to explain how the Court interpreted Thompkins's silence. Reading the Court's opinions through Grice's theory of implicature demonstrates that theories of rhetorical silence hide the risks silence poses for some rhetors.

Keywords:

• Berghuis v. Tompkins (2010)
• Legal Rhetoric
• Rhetoric of Silence
• Silence
• Supreme Court

Acknowledgments

The author is especially grateful to Arthur Walzer, Edward Schiappa, Mary Lay Schuster, and Allison Prasch for their assistance with earlier drafts of the article. An earlier version of this article was presented at the 2012 annual meeting of the National Communication Association.

Notes

Studies of silence in other disciplines are surveyed admirably by Richard Johannesen in “The Functions of Silence: A Plea For Communication Research.” Johannesen's article is a very helpful review of research before 1974.

Other studies talk about silence similarly to Glenn, Brummett, and Cloud, but fail to offer an understanding of how silence functions outside of a particular context (Bokser, “Sor Juana's Rhetoric”; Bokser, “Sor Juana's Divine Narcissus”; Herakova, Jelača, Sibii, and Cooks; Olson).

Before delving into the detail and nuances of Grice's work it is worth noting the complex relationship that rhetoric and pragmatics have to one another. Scholars of rhetoric have at times looked to pragmatics as a supplement or addition to rhetorical theory. Reed Dasenbrock's 1987 article entitled “J. L. Austin and the Articulation of a New Rhetoric” argued for the wholesale adoption of pragmatics for understanding rhetoric to compensate for the philosophical shortfalls of rhetoric by replacing it with that of pragmatics. Later, Dascal and Gross, in “The marriage of pragmatics and rhetoric,” argued that a marriage of the two disciplines would allow for the easy transposition of concepts between the two fields.Liu and Zhu, in their article “Rhetoric as the Antistrophos of Pragmatics: Toward a ‘Competition of Cooperation’ in the study of language use” argue that these attempts, as well as those by Beale; Bohman; and Cassin, misunderstand a relationship between rhetoric and pragmatics and are too quick to wholeheartedly borrow terms from one disciple into another. Liu and Zhu find in the transposition of terms without accompanying context to be a major shortfall in research incorporating both rhetoric and pragmatics. To fill this hole they propose an alternative version of Grice's theory that rests on a different fundamental principle for rhetoric. Their fundamental principle is focused upon the needs of persuasion, and they fill in the maxims to follow. Their work is incredibly interesting. For this essay, however, it is most useful to treat the justices writing as falling within pragmatics: they are genuinely trying to interpret Thompkins's silence as a moment of information exchange, not as a moment of persuasion. For that reason I will stick with Grice's original theory and note that looking at Thompkins's silence through Liu and Zhu's principle and maxims leads to similar conclusions. In this essay it is not my goal to take a side in this debate about the relationship of rhetoric and pragmatics. Liu and Zhu are probably right that rhetoric and pragmatics are antistrophos. What exactly that means in particular contexts is for other studies to address.

Policy considerations are often at work in Supreme Court opinions and one concern Kennedy mentions is that it would be impractical for police officers to be required to ask a suspect if they would like to invoke their right to silence. Kennedy explains that “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” (Berghuis 2260). Kennedy is concerned that requiring officers to ask a suspect if they would like to remain silent will lead to fewer confessions. Legal scholars sympathetic to Kennedy's concern call for revisions to the Miranda warning to make silence of suspects less ambiguous. Richard L. Budden calls for revisions to the Miranda warning because the Court misses “one seemingly obvious and unique feature of the right to remain silent … that suspects can communicate their intention to exercise it without speaking a word” (484). Stephen Rushin argues that as long as suspects are told they need to say they would like to remain silent then the spirit of Miranda is upheld. Scott Stansbury argues that currently “the Miranda warnings themselves do not state … ‘how’ to invoke those constitutional rights” (337). Suspects are unlikely to receive any guidance on how to invoke the right to remain silent because “police, who have ample incentives to avoid invocation, will have no desire to provide suspects with such guidance on how to invoke their Miranda rights” (337). These scholars imagine that if the Miranda warning makes clear the requirements of the right to silence that suspects will be less likely to respond ambiguously to the Miranda warning.

Kennedy says,

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.” 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. (Berghuis 2256, Internal Citations Omitted)

“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” (Berghuis 2266).

“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”” (Berghuis 2269).

Additional information

Notes on contributors

Shelby P. Bell

Shelby P. Bell (MA, University of Minnesota), is a doctoral student in the Department of Communication Studies at the University of Minnesota Twin Cities.