Bad (U2 song)
1984 song by U2
"Bad" is a song by Irish rock band U2 and the seventh track on their 1984 album "The Unforgettable Fire". Thematically, the song is about heroin addiction, though lead vocalist Bono has given varying accounts of who was the inspiration behind his lyrics. "Bad" is considered a fan favourite and is one of U2's most frequently performed songs in concert. The band's 12-minute performance of the song at the Live Aid charity concert in 1985 was a breakthrough moment for them.
A live version of the song appears on U2's 1985 EP "Wide Awake in America"; this rendition became popular on album-oriented rock radio stations. In the United States, the song peaked at number 19 on the "Billboard" Top Rock Tracks chart. The album version of the song featured on the trailer of the 2009 film "Brothers" and in the opening and closing sequences of the 2004 film "Taking Lives".
History.
"Bad" originated from a guitar riff that the Edge improvised during a jam session at Slane Castle, where U2 were recording their 1984 album "The Unforgettable Fire." The basic track was completed in three takes. Of its immediate and live nature, the Edge said, "There's one moment where [drummer] Larry [Mullen Jr.] puts down brushes and takes up the sticks and it creates this pause which has an incredibly dramatic effect." Producer Brian Eno added the sequencer arpeggios that accompany the song.
The early 1980s recession had led to a high number of heroin addicts in inner city Dublin. In concert, lead vocalist Bono frequently introduced the song as a song about Dublin. The Edge and the album's producers, Eno and Daniel Lanois, were focused on the music and were less interested in the lyrics. Bono said that he left the song unfinished.
During the 3 December 1984 concert at Radio City Music Hall in New York City for the Unforgettable Fire Tour, Bono said the song was about heroin and that he wrote it for a friend and also for himself; in discussing this comment during a 17 December radio interview, Bono said, "Well, I think I said I wrote the song for a friend of mine; I also wrote it for myself because you can be addicted to anything. And, you know, that song's not just about heroin: it's about a lot of things. None of our songs, really, are just about one thing."
There are other versions of the story from Bono himself. His account from a 1987 concert in Chicago during the Joshua Tree Tour indicate "Bad" is about a friend of his who died of a heroin overdose and also about the conditions that make such events likely to be repeated. Bono once commented in another concert (in the UK) about people lying in gutters with "needles hangin' outta their fuckin' arms while the rich live indifferently to the suffering of the less fortunate." At Eriksberg, Gothenburg in Sweden 1987, he said: "I wrote the words about a friend of mine; his name was Gareth Spaulding, and on his 21st birthday he and his friends decided to give themselves a present of enough heroin into his veins to kill him. This song is called 'Bad.'"
During a 26 July 2011 concert in Pittsburgh during the U2 360° Tour, Bono introduced a performance of "Bad" as a song written for a "very special man, who is here in your city, who grew up on Cedarwood Road. We wrote this song about him and we play it for him tonight." He was referring to Andy Rowen, whom the song was written about in 1984 and who was present at the show. Rowen is the brother of Bono's Lypton Village friend Guggi and Peter Rowen, who is featured on the sleeve artwork for the band's albums "Boy" (1980) and "War" (1983).
Live performances.
"Bad" is one of the band's most performed songs. Translating the elaborate and complex textures of the new studio-recorded tracks to live performance proved to be a serious challenge when the Unforgettable Fire Tour commenced. One solution was programmed sequencers, which the band had previously been reluctant to use. Sequencers were prominently used on "Bad".
The studio version of "Bad" was criticised as being "unfinished", "fuzzy" and "unfocused", but the band found that it made more sense on stage. "Rolling Stone", for example, critical of the album version, described its live performance as a "show stopper".
A staple of U2's concert tours of the 1980s, "Bad" was also frequently performed during the first four legs of the 1992–1993 Zoo TV Tour. Although not played until the fourth leg of the PopMart Tour of 1997 and 1998, it returned to the normal set list for 2001's Elevation Tour and saw occasional performances during the Vertigo Tour of 2005 and 2006, sometimes even appearing as the closing song for shows. It made very sporadic appearances on the U2 360° Tour and has featured occasionally on the 2015 Innocence + Experience Tour.
The song once again returned to the normal setlist for both the Joshua Tree Tours 2017 and 2019, typically being played early on in the set with other pre-"The Joshua Tree" era hits. The Experience + Innocence Tour however (which took place in 2018 between the 2017 and 2019 legs of "The Joshua Tree" anniversary tours) did not feature a single performance of the song, making it the first tour in U2's history where the song was not performed.
Bono is known for singing a wide variety of snippets during performances of "Bad". Lyrics from over 50 different songs have been included in "Bad", ranging from brief quotes of a single line through to multiple verses. These snippets are typically sung after the line "I'm not sleeping" and Bono has included up to six different excerpts in a single performance of "Bad". Performances without at least one snippet are very rare.
Live Aid.
U2 participated in the Live Aid concert at Wembley Stadium for Ethiopian famine relief on 13 July 1985. They played a 12-minute version of "Bad", which was extended by snippets of Lou Reed's "Satellite of Love" and "Walk on the Wild Side", and The Rolling Stones' "Ruby Tuesday" and "Sympathy for the Devil". During the performance, Bono leaped down off the stage to embrace and dance with a fan. In 2005 the girl with whom he danced, who was at the front to see Wham!, revealed that he actually saved her life at the time. She was being crushed by the throngs of people pushing forwards; Bono saw this, and gestured frantically at the ushers to help her. They did not understand what he was saying, and so he jumped down to help her himself. Bono's rescue of and dance with the girl was captured on the TV broadcast sent around the world. The performance was so long that the band were only able to play two of the three songs in their set, leaving out "Pride (In the Name of Love)", which was supposed to end the band's performance. The concert turned out to be a breakthrough moment for the band, showing a television audience of millions the personal connection that Bono could make with audiences. A week later, Bono realized that the dance with the fan became a key image of Live Aid. All of U2's albums re-entered the UK Albums Chart after their performance.
Discography.
"Bad" is the first track on the 1985 EP "Wide Awake in America", this being a live version recorded at Birmingham's NEC Arena on November 12, 1984 during sound check. This version includes prerecorded rhythm tracks. There are no other snippets of songs on this version for copyright reasons. Three other versions of "Bad" have been officially released by the band. An edit of the version from "The Unforgettable Fire" appears on the 1998 compilation "The Best of 1980–1990"; with the exception of the hidden version of "October", "Bad" is the only non-single to appear on the compilation. In addition to the live performance included on "Wide Awake in America", a live version from 1987's Joshua Tree Tour appears in the rockumentary "Rattle and Hum" and a version from 2001's Elevation Tour appears in the concert film "" (with a snippet of "40" at the end and therefore credited as "Bad / '40'"). For the release of the 2004 digital box set "The Complete U2", another live version of "Bad" was included on the live album "Live from the Point Depot".
An acoustic version of "Bad" with lyrical changes is included on U2's 2023 album "Songs of Surrender".
References.
Footnotes
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Bibliography

List of cover versions of U2 songs
This list shows cover versions of songs originally by the Irish rock band U2 that have been recorded and released.
"40".
"40" is the tenth and final track from U2's 1983 album, "War". It is the final single from the album, released solely in Germany in 1983. The song was recorded right at the end of the recording sessions for "War". Bassist Adam Clayton had already left the studio, and the three remaining band members decided they did not have a good song to end the album. Bono noted that "We spent ten minutes writing this song, ten minutes recording it, ten minutes mixing it, ten minutes playing it back, and that's got nothing to do with why it's called '40'."
Acrobat.
"Acrobat" is the eleventh track from U2's 1991 album "Achtung Baby".
All I Want Is You.
"All I Want Is You" is the 17th song on U2's 1988 album, "Rattle and Hum" and was released in 1989 as the album's fourth and final single. It is the closing song from the movie "Rattle and Hum".
An Cat Dubh.
"An Cat Dubh" is the third track from U2's debut album, "Boy". It is frequently paired with the following song from the same album, "Into the Heart".
Angel of Harlem.
"Angel of Harlem" is the second single from U2's 1988 album, "Rattle and Hum". It peaked at #9 on the UK singles chart. It is an homage to Billie Holiday.
Bad.
"Bad" is the seventh track from U2's 1984 album, "The Unforgettable Fire". Often considered a fan favorite, it is U2's tenth most frequently performed song in concert. The song is about a heroin addiction.
Beautiful Day.
"Beautiful Day" is the lead single from U2's 2000 album, "All That You Can't Leave Behind". It was a huge commercial success, helping to launch the album to multi-platinum status, and is one of U2's biggest hits to date.
Breathe.
"Breathe" is the tenth track from U2's 2009 album "No Line on the Horizon". Longtime U2 collaborator and producer Brian Eno cited "Breathe" as "the best thing (U2) have ever recorded" during an interview with "Q" magazine.
Bullet the Blue Sky.
"Bullet the Blue Sky" is the fourth track from U2's 1987 album, "The Joshua Tree". The song was originally written about the United States' military intervention during the 1980s in the El Salvador Civil War.
City of Blinding Lights.
"City of Blinding Lights" is the fifth track and third single from the group's 2004 album "How to Dismantle an Atomic Bomb". The song tells the story of U2's first arrival in New York City in 1980, with Bono remarking it was an "amazing, magical time in our life, when we didn't know how powerful it was not to know."
Desire.
"Desire" is the lead single from U2's 1988 album, "Rattle and Hum". It was their first #1 single in the UK and their first #1 on the newly instated Modern Rock Tracks chart.
Drowning Man.
"Drowning Man" is the fifth track on U2's 1983 album, "War". Its sound is a departure from the other tracks in "War".
The Electric Co..
"The Electric Co." is the tenth track from U2's debut album, "Boy". When performed live it is frequently preceded by the unrecorded song, "The Cry".
Elevation.
"Elevation" is the third track and third single release from U2's 2000 album, "All That You Can't Leave Behind". Featuring a thunderous beat, a variety of sound effects on the central guitar riff, and an easy rhyming lyric for the audience to shout along with, it was highly effective in that concert-starting role and became a hit in the United States and the United Kingdom.
Even Better Than the Real Thing.
"Even Better Than the Real Thing" is the second song from U2's 1991 album, "Achtung Baby" and was released in 1992 as the fourth single from the album.
Exit.
Exit is the 10th track of U2's "Joshua Tree", released in 1987.
The Fly.
"The Fly" is the seventh song on U2's 1991 album, "Achtung Baby" and was released as the album's first single. It has been described as "the sound of four men chopping down the Joshua Tree." The song's subject is that of a phone call from someone in Hell who enjoys being there and telling the person on the other line what he has learned. "The Fly" was an introduction to the sonic and electronic experimentation that would dominate U2's 1990s work.
Get on Your Boots.
"Get on Your Boots" is the lead single and sixth track from "No Line on the Horizon".
Gloria.
"Gloria" was the second single and opening track from U2's 1981 album, "October".
God Part II.
"God Part II" is the fourteenth track from U2's 1988 album, "Rattle and Hum". The song is a departure from the sound of the album's other studio recordings, and is an introduction to the darker sound the band would adopt for the release of their next album, "Achtung Baby".
Grace.
"Grace" is the final track from U2's 2000 album, "All That You Can't Leave Behind".
Heartland.
"Heartland" is the thirteenth track from U2's 1988 album, "Rattle and Hum". Unlike the other studio tracks from the album, "Heartland" was left over from "The Joshua Tree" sessions.
Hold Me, Thrill Me, Kiss Me, Kill Me.
"Hold Me, Thrill Me, Kiss Me, Kill Me" is a single by U2 from the "Batman Forever" soundtrack album, released in 1995. It was also included on the compilation album, "The Best of 1990-2000". As well as all the covers, "Weird Al" Yankovic parodied the song as "Cavity Search" for his 1996 album "Bad Hair Day".
I Still Haven't Found What I'm Looking For.
"I Still Haven't Found What I'm Looking For" is the second track from U2's 1987 album "The Joshua Tree", and was released as the album's second single. The song grew from another song called "Under the Weather Girls", from which Larry Mullen Jr.'s drum track was used as a foundation. "I Still Haven't Found What I'm Looking For" is the most frequently covered U2 song.
I Will Follow.
"I Will Follow" is the opening track from U2's debut album, "Boy". It was written by Bono about the death of his mother, who died of a brain hemorrhage at the funeral of her father.
I'll Go Crazy If I Don't Go Crazy Tonight.
"I'll Go Crazy If I Don't Go Crazy Tonight" is the third single and fifth track from the 2009 album "No Line on the Horizon". The track underwent several name changes during the album sessions, known first as "Diorama" and then "Crazy Tonight" before the final selection. Several of the song's lyrics were influenced by Barack Obama's presidential campaign. The song was used in television commercials for a new Blackberry application, called the "U2 Mobile App", which was developed as part of Research in Motion's sponsorship of the U2 360° Tour.
In a Little While.
"In a Little While" is the sixth track from U2's 2000 album "All That You Can't Leave Behind". While originally about a hangover, Bono later stated that the song's connection to Joey Ramone—being the last song he heard before his death in 2001—has given it a deeper religious meaning, and he now refers to it as a Gospel song". "In a Little While" was played often throughout the Elevation Tour, and was frequently snippeted inside "I Still Haven't Found What I'm Looking For" during the Vertigo Tour.
In God's Country.
"In God's Country" is the seventh track and fourth single from U2's 1987 album, "The Joshua Tree". A live version of the song appears in the U2 rockumentary, "Rattle and Hum".
Like a Song....
"Like a Song..." is the fourth track from U2's 1983 album, "War". It was only played live once, on 26 February 1983 in Dundee, Scotland.
Love Is Blindness.
"Love Is Blindness" is the twelfth and final song from U2's 1991 album, "Achtung Baby". Much of the album relates to love gone wrong, in one form or another; the lyrics to "Love Is Blindness" reflect this theme, juxtaposing love and violent imagery.
Love Rescue Me.
"Love Rescue Me" is the eleventh track from U2's 1988 album, "Rattle and Hum". It is a collaboration between the band and Bob Dylan, who also provides vocals to the recording.
Magnificent.
"Magnificent" is the second track and single from "No Line on the Horizon". The track was originally titled "French Disco", but was renamed during the recording process.
Miss Sarajevo.
"Miss Sarajevo" is the only single from the 1995 album "Original Soundtracks 1" by U2, under the pseudonym Passengers. Luciano Pavarotti makes a guest vocal appearance, singing the opera solo. It also appears on the compilation album, "The Best of 1990–2000".
MLK.
"MLK" is the tenth and final track of U2's 1984 album, "The Unforgettable Fire". A lullaby to honor Martin Luther King Jr., it is a short, pensive piece with simple lyrics.
Moment of Surrender.
"Moment of Surrender" is the third track from "No Line on the Horizon". The song tells the story of a heroin addict's spiritual awakening at an automated teller machine.
Mothers of the Disappeared.
"Mothers of the Disappeared" is the eleventh and final track from U2's 1987 album, "The Joshua Tree".
Mysterious Ways.
"Mysterious Ways" is the eighth track on U2's 1991 album, "Achtung Baby", and was released as the album's second single.
New Year's Day.
"New Year's Day" is the third song and lead single from U2's 1983 album, "War". The song is driven by Adam Clayton's distinctive bassline and The Edge's keyboard. It was the band's first hit single, breaking the top ten in the UK and charting on the "Billboard" Hot 100 for the first time in their career. In 2004, "Rolling Stone" magazine placed the single at number 427 on their list of the 500 Greatest Songs of All Time.
No Line on the Horizon.
"No Line on the Horizon" is the opening and title track from the 2009 album "No Line on the Horizon".
North and South of the River.
"North and South of the River" is a B-side to the 1997 single "Staring at the Sun".
Numb.
"Numb" is the third track from U2's 1993 album, "Zooropa", and was released as the album's first single.
October.
"October" is the seventh and title track from U2's 1981 album, "October". It is a departure from U2's classic sound, as it is a quiet, almost instrumental piece. It was included as a hidden track on "The Best of 1980–1990".
One.
"One" is the third song from U2's 1991 album, "Achtung Baby", and was released as a single in 1992. Tensions during the recording of the album almost prompted U2 to break-up until the band rallied around the writing of "One". It is widely considered to be one of the band's greatest songs and is consistently featured in lists of the greatest songs of all time, including "Rolling Stone"'s list of the 500 Greatest Songs of All Time, where it placed #36, and #1 on "Q Magazine"'s list of the 1001 Greatest Songs of All-Time.
One Tree Hill.
"One Tree Hill" is the ninth track and final single from U2's 1987 album, "The Joshua Tree". The single was released as a single exclusively in New Zealand in 1988, where it reached number one. The title of the song refers to One Tree Hill, a volcanic peak in Auckland, New Zealand.
Pride (In the Name of Love).
"Pride (In the Name of Love)" is the second song on U2's 1984 album, "The Unforgettable Fire" and was released as the album's first single. Written about Martin Luther King Jr., it is one of the band's most recognized songs.
Promenade.
"Promenade" is the fifth track on U2's 1984 album, "The Unforgettable Fire".
Red Hill Mining Town.
"Red Hill Mining Town" is the sixth track from U2's 1987 album, "The Joshua Tree".
Running to Stand Still.
"Running to Stand Still" is the fifth track from U2's 1987 album, "The Joshua Tree". It is a soft, slow, keyboard-based song about a heroin-addicted woman from the Ballymun Seven Towers area of Dublin.
Seconds.
"Seconds" is the second track on U2's 1983 album, "War". The track contains a clip from the 1982 documentary "Soldier Girls", and is the first song by the band not sung solely by Bono; The Edge sings the first two stanzas.
So Cruel.
"So Cruel" is the sixth track from U2's 1991 album, "Achtung Baby".
Sometimes You Can't Make It on Your Own.
"Sometimes You Can't Make It on Your Own" is the second single from U2's 2004 album, "How to Dismantle an Atomic Bomb". It was released in the United Kingdom in February 2005, and debuted at #1 on the UK Singles Chart. The song won Best Rock Performance by a Duo or Group with Vocal and Song of the Year at the 2006 Grammy Awards.
Stay (Faraway, So Close!).
"Stay (Faraway, So Close!)" is the fifth track from U2's 1993 album, "Zooropa", and was released as the album's third single on November 22, 1993. It was released on the soundtrack for the Wim Wenders film, "Faraway, So Close!". While speaking with "Rolling Stone", Bono noted that "Stay (Faraway, So Close!)" is one of his personal favourite, and one of their most underrated, U2 songs.
Stuck in a Moment You Can't Get Out Of.
"Stuck in a Moment You Can't Get Out Of" is a single release from U2's 2000 album, "All That You Can't Leave Behind". It won the Grammy Award for Best Pop Performance by a Duo or Group with Vocal in 2002.
Sunday Bloody Sunday.
"Sunday Bloody Sunday" is the opening track and third single from U2's 1983 album, "War". The song is noted for its militaristic drumbeat, simple but harsh guitar, and melodic harmonies. One of U2's most overtly political songs, its lyrics describe the horror felt by an observer of The Troubles in Northern Ireland.
Sweetest Thing.
"Sweetest Thing", sometimes titled "The Sweetest Thing", is a B-side to the "Where the Streets Have No Name" single. It was re-recorded and released as a single for the 1998 compilation album "The Best of 1980-1990". The song was written by Bono as an apology to his wife for forgetting her birthday during the creation of "The Joshua Tree".
Tomorrow.
"Tomorrow" is the sixth track on 1981's "October" album.
Tryin' to Throw Your Arms Around the World.
"Tryin' to Throw Your Arms Around the World" is the ninth track on the 1991 album, "Achtung Baby". The song is a lighthearted account of a drunken journey home.
Two Hearts Beat as One.
"Two Hearts Beat as One" is the seventh track on U2's 1983 album, "War". It was released as the album's second single but only in the US, UK and Australia.
Ultraviolet (Light My Way).
"Ultraviolet (Light My Way)" is the tenth track from U2's 1991 album "Achtung Baby".
The Unforgettable Fire.
"The Unforgettable Fire" is the fourth track from the 1984 album of the same name, and was released in 1985 as the album's second and last single. The title is a reference to the atomic bombing of Hiroshima, Japan in World War II.
Unknown Caller.
"Unknown Caller" is the fourth track from the 2009 album "No Line on the Horizon". According to The Edge, "the idea is that the narrator is in an altered state, and his phone starts talking to him".
Until the End of the World.
"Until the End of the World" is the fourth track from U2's 1991 album, "Achtung Baby". The song is reputed to describe a conversation between Jesus Christ and Judas Iscariot.
Vertigo.
"Vertigo" is the lead single and opening track for the 2004 album "How to Dismantle an Atomic Bomb". The track was an international hit, winning three Grammy awards at the 2005 event and being featured in an iPod commercial.
The Wanderer.
"The Wanderer" is the tenth and final track on the 1993 album "Zooropa". The song features Johnny Cash on lead vocals and tells the story of a man searching for God in the ruins of a post-apocalyptic world. The song has only been performed live once, as a posthumous tribute to Johnny Cash, with Bono singing lead vocals.
Wake Up Dead Man.
"Wake Up Dead Man" is the closing track from the 1997 album "Pop". The title was first revealed in 1993, as part of it was superimposed on the cover of the album "Zooropa".
Walk On.
"Walk On" is the fourth single and track from the album "All That You Can't Leave Behind". Written about and dedicated to Aung San Suu Kyi, the track is banned in Burma, and anyone who has possession of either the single of the song or the album could face a prison sentence lasting between three and twenty years. The title for "All That You Can't Leave Behind" stems from lyrics in the song.
When Love Comes to Town.
"When Love Comes to Town" was a collaboration between U2 and B.B. King, released as a single for the album "Rattle and Hum".
Where the Streets Have No Name.
"Where the Streets Have No Name" is the third single from the 1987 album "The Joshua Tree". The track's signature is a repeating guitar arpeggio utilizing a delay effect that is played at the beginning and end of the song. The song's frequent chord and time changes caused problems in playing the song correctly; the difficulty was so great that producer Brian Eno attempted to erase the track. Drummer Larry Mullen Jr. later said of the song, "It took so long to get that song right, it was difficult for us to make any sense of it. It only became a truly great song through playing live. On the record, musically, it's not half the song it is live."
Who's Gonna Ride Your Wild Horses.
"Who's Gonna Ride Your Wild Horses" was released in 1992 as the fifth and final single for the 1991 album "Achtung Baby".
With or Without You.
"With or Without You" is the lead single from U2's 1987 album, "The Joshua Tree". It has since become highly acclaimed as one of the band's most popular songs. Released as a single in March 1987, it became the group's first American #1 hit.
Zoo Station.
"Zoo Station" is the first track on U2's 1991 album "Achtung Baby".
1. <templatestyles src="Citation/styles.css"/>^ On this release, the title of "Drowning Man" was changed to "Drowning Man (Drowning)".
2. <templatestyles src="Citation/styles.css"/>^ This cover of "Even Better Than the Real Thing" was released as the "Julian Beeston Mix".
3. <templatestyles src="Citation/styles.css"/>^ This cover was in Serbian language and entitled "Model donjeg veša" (transl. "Lingerie Model").
4. <templatestyles src="Citation/styles.css"/>^ The songs "I Still Haven't Found What I'm Looking For" and "Sunday Bloody Sunday" were combined on this track.
5. <templatestyles src="Citation/styles.css"/>^ Live version recorded in a 2005 BBC Radio 1 Live Lounge; track was not released until November 2009.
6. <templatestyles src="Citation/styles.css"/>^ This cover of "Discothèque" was released as the "Suspiria Mix".
References.
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The Unforgettable Fire
1984 studio album by U2
The Unforgettable Fire is the fourth studio album by Irish rock band U2. It was produced by Brian Eno and Daniel Lanois, and released on 1 October 1984 by Island Records. The band wanted to pursue a new musical direction following the harder-hitting rock of their previous album, "War" (1983). As a result, they employed Eno and Lanois to produce and assist in their experimentation with a more ambient sound. The resulting change in direction was at the time the band's most dramatic. The album's title is a reference to "The Unforgettable Fire", an art exhibit about the atomic bombing of Hiroshima.
Recording began in May 1984 at Slane Castle, where the band lived, wrote, and recorded to find new inspiration. The album was completed in August 1984 at Windmill Lane Studios. It features atmospheric sounds and lyrics that lead vocalist Bono describes as "sketches". "Pride (In the Name of Love)" and "MLK" are lyrical tributes to Martin Luther King Jr.
"The Unforgettable Fire" received generally favourable reviews from critics and produced the band's biggest hit at the time, "Pride (In the Name of Love)", as well as the live favourite "Bad". A 25th anniversary edition of the album was released in October 2009.
Background.
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 "We knew the world was ready to receive the heirs to the Who. All we had to do was to keep doing what we were doing and we would become the biggest band since Led Zeppelin, without a doubt. But something just didn't feel right. We felt we had more dimension than just the next big anything, we had something unique to offer. The innovation was what would suffer if we went down the standard rock route. We were looking for another feeling."
 —Bono, on "The Unforgettable Fire"'s new direction.
U2 feared that following the overt rock of their 1983 album "War" and the War Tour, they were in danger of becoming another "shrill", "sloganeering arena-rock band". Following their concert at Dublin's Phoenix Park Racecourse in August 1983, one of the final dates of the War Tour, lead vocalist Bono spoke in metaphors about the group breaking up and reforming with a different direction. In the 10th issue of "U2 Magazine", released in February 1984, Bono hinted at radical changes on the next album saying that he could not "sleep at night with the thought of it all" and that they were "undertaking a real departure". As bassist Adam Clayton recalls, "We were looking for something that was a bit more serious, more arty."
After completing the War Tour in Japan late that year, U2 rehearsed at Bono's seaside home in a Martello tower in Bray, County Wicklow. During this time, early versions of the songs "Pride (In the Name of Love)", "The Unforgettable Fire", and "A Sort of Homecoming" were composed.
U2 had recorded their first three albums at Windmill Lane Studios but decided to find a new location for their next studio album. Clayton lamented the lack of a live room in which the band could play together at Windmill Lane, while the band's manager Paul McGuinness said the studio had barely enough space for people to work. He set to finding a new location and came up with Church Hall in Ranelagh, but he found it overpriced. The band's tour manager Dennis Sheehan also searched for suitable locations and found Slane Castle in County Meath. The building's owner, Lord Henry Mountcharles, offered to lease it to the group for less than half the cost of Church Hall, and also offered lodging and dining for the band and crew on-premises. The castle's Gothic ballroom, which was originally built for music and had a 30-foot high domed ceiling, also attracted the band, as they were looking to capture the natural acoustics of a room in their recordings.
After working with producer Steve Lillywhite on their first three albums, the band sought experimentation rather than to create the "son of "War"". Both Lillywhite and the group agreed that it was time for a change of producers and that they should not "repeat the same formula". For their next studio album, the band considered hiring Conny Plank, whose previous production credits included Can, Kraftwerk, and Ultravox. U2 also met with Roxy Music producer Rhett Davies, but Clayton said that it "didn't really go anywhere". They also considered Jimmy Iovine, who had produced their live album "Under a Blood Red Sky" in 1983, but they found their early musical ideas for the new album to be too "European" for an American producer. Iovine thought that he was in line for the job and went so far as to hold a meeting about recording logistics at Slane Castle with his engineer Shelly Yakus and with another engineer Randy Ezratty, whose mobile recording studio U2 would be using once again. However, at the last minute, McGuinness informed Ezratty that they would be proceeding with different producers.
U2 instead had turned their attention to hiring musician/producer Brian Eno. Guitarist the Edge had long admired Eno's music, particularly


Miranda v. Arizona
1966 U.S. Supreme Court case establishing the use of the Miranda warning
1966 United States Supreme Court case
Miranda v. Arizona, 384 U.S. 436 (1966), was a landmark decision of the U.S. Supreme Court in which the Court ruled that law enforcement in the United States must warn a person of their constitutional rights before interrogating them, or else the person's statements cannot be used as evidence at their trial. Specifically, the Court held that under the Fifth Amendment to the U.S. Constitution, the government cannot use a person's statements made in response to an interrogation while in police custody as evidence at the person's criminal trial unless they can show that the person was informed of the right to consult with a lawyer before and during questioning, and of the right against self-incrimination before police questioning, and that the defendant not only understood these rights but also voluntarily waived them before answering questions.
"Miranda" was viewed by many as a radical change in American criminal law, since the Fifth Amendment was traditionally understood only to protect Americans against formal types of compulsion to confess, such as threats of contempt of court. It has had a significant impact on law enforcement in the United States, by making what became known as the "Miranda" warning part of routine police procedure to ensure that suspects were informed of their rights, which would become known as ""Miranda" rights". The concept of "Miranda warnings" quickly caught on across American law enforcement agencies, who came to call the practice "Mirandizing".
Pursuant to the U.S. Supreme Court decision "Berghuis v. Thompkins" (2010), criminal suspects who are aware of their right to silence and to an attorney but choose not to "unambiguously" invoke them may find any subsequent voluntary statements treated as an implied waiver of their rights, and used as or as part of evidence.
Background.
Legal.
In 1951 "Legal Aid in the United States", a report in the Survey of the Legal Profession series, was published by the American Bar Association. It identified large gaps in the availability of legal services in both civil and criminal cases for those unable to afford a lawyer. By the early 1960s, in response to the report, efforts by various bar associations to expand legal aid for defendants had resulted in a substantial increase in services albeit still with large areas of the country underserved.
In the civil realm, it led to the creation of the Legal Services Corporation under the Great Society program of Lyndon B. Johnson. "Escobedo v. Illinois", a case which closely foreshadowed "Miranda," provided for the presence of counsel during police interrogation.
Factual.
On March 13, 1963, Ernesto Miranda was arrested by the Phoenix Police Department officers Carroll Cooley and Wilfred Young, based on circumstantial evidence linking him to the kidnapping and rape of an 18-year-old woman 10 days earlier. After two hours of interrogation by police officers, Miranda signed a confession to the rape charge on forms that included the typed statement: "I do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promises of immunity, and with full knowledge of my legal rights, understanding any statement I make may be used against me."
However, at no time was Miranda told of his right to counsel. Before being presented with the form on which he was asked to write out the confession that he had already given orally, he was not advised of his right to remain silent, nor was he informed that his statements during the interrogation would be used against him. At trial, when prosecutors offered Miranda's written confession as evidence, his court-appointed lawyer, Alvin Moore, objected that because of these facts, the confession was not truly voluntary and should be excluded. Moore's objection was overruled, and based on this confession and other evidence, Miranda was convicted of rape and kidnapping. He was sentenced to 20–30 years of imprisonment on each charge, with sentences to run concurrently. Moore filed Miranda's appeal to the Arizona Supreme Court, claiming that Miranda's confession was not fully voluntary and should not have been admitted into the court proceedings. The Arizona Supreme Court affirmed the trial court's decision to admit the confession in "State v. Miranda", 401 P.2d 721 (Ariz. 1965). In affirmation, the Arizona Supreme Court heavily emphasized the fact that Miranda did not specifically request an attorney.
Attorney John Paul Frank, former law clerk to Justice Hugo Black, represented Miranda in his appeal to the U.S. Supreme Court. Gary K. Nelson represented Arizona.
Supreme Court decision.
On June 13, 1966, the Supreme Court issued a 5–4 decision in Miranda's favor that overturned his conviction and remanded his case back to Arizona for retrial.
Opinion of the Court.
Five justices formed the majority and joined an opinion written by Chief Justice Earl Warren. The Court ruled that because of the coercive nature of the custodial interrogation by police (Warren cited several police training manuals that had not been provided in the arguments), no confession could be admissible under the Fifth Amendment self-incrimination clause and Sixth Amendment right to an attorney unless a suspect has been made aware of his rights and the suspect has then waived them:
<templatestyles src="Template:Blockquote/styles.css" />The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.
Thus, Miranda's conviction was overturned. The Court also made clear what must happen if a suspect chooses to exercise their rights:
<templatestyles src="Template:Blockquote/styles.css" />If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.
Warren also pointed to the existing procedures of the Federal Bureau of Investigation (FBI), which required informing a suspect of his right to remain silent and his right to counsel, provided free of charge if the suspect was unable to pay. If the suspect requested counsel, "the interview is terminated." Warren included the FBI's four-page brief in his opinion.
Clark's concurrence in part, dissent in part.
In a separate concurrence in part, dissent in part, Justice Tom C. Clark argued that the Warren Court went "too far too fast." Instead, Justice Clark would use the "totality of the circumstances" test enunciated by Justice Goldberg in "Haynes v. Washington". Under this test, the court would:
<templatestyles src="Template:Blockquote/styles.css" />consider in each case whether the police officer prior to custodial interrogation added the warning that the suspect might have counsel present at the interrogation and, further, that a court would appoint one at his request if he was too poor to employ counsel. In the absence of warnings, the burden would be on the State to prove that counsel was knowingly and intelligently waived or that in the totality of the circumstances, including the failure to give the necessary warnings, the confession was clearly voluntary.
Harlan's dissent.
In dissent, Justice John Marshall Harlan II wrote that "nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities." Harlan closed his remarks by quoting former Justice Robert H. Jackson: "This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added."
White's dissent.
Justice Byron White took issue with the court having announced a new constitutional right when it had no "factual and textual bases" in the Constitution or previous opinions of the Court for the rule announced in the opinion. He stated: "The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment." White did not believe the right had any basis in English common law.
White further warned of the dire consequences of the majority opinion:
<templatestyles src="Template:Blockquote/styles.css" />I have no desire whatsoever to share the responsibility for any such impact on the present criminal process.
In some unknown number of cases, the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity.
Subsequent developments.
Retrial.
Miranda was retried in 1967 after the original case against him was thrown out. This time the prosecution, instead of using the confession, introduced other evidence and called witnesses. One witness was Twila Hoffman, a woman with whom Miranda was living at the time of the offense; she testified that he had told her of committing the crime. Miranda was convicted in 1967 and sentenced to serve 20 to 30 years. The Supreme Court of Arizona affirmed, and the United States Supreme Court denied review. Miranda was paroled in 1972. After his release, he returned to his old neighborhood and made a modest living autographing police officers' "Miranda cards" that contained the text of the warning for reading to arrestees. Miranda was stabbed to death during an argument in a bar on January 31, 1976. A suspect was arrested, but due to a lack of evidence against him, he was released.
Another three defendants whose cases had been tied in with Miranda's – an armed robber, a stick-up man, and a bank robber – either made plea bargains to lesser charges or were found guilty again despite the exclusion of their confessions.
Reaction.
The "Miranda" decision was widely criticized when it came down, as many felt it was unfair to inform suspected criminals of their rights, as outlined in the decision. Richard Nixon and conservatives denounced "Miranda" for undermining the efficiency of the police, and argued the ruling would contribute to an increase in crime. Nixon, upon becoming president, promised to appoint judges who would reverse the philosophy that he viewed as "soft on crime." Many supporters of law enforcement were angered by the decision's negative view of police officers.
Miranda warning.
After the "Miranda" decision, the nation's police departments were required to inform arrested persons or suspects of their rights under the ruling prior to custodial interrogation or their answers would not be admissible in court. Such information is called a Miranda warning. Since it is usually required that the suspects be asked if they understand their rights, courts have also ruled that any subsequent waiver of Miranda rights must be knowing, intelligent, and voluntary.
Many American police departments have pre-printed Miranda waiver forms that a suspect must sign and date (after hearing and reading the warnings again) if an interrogation is to occur.
Data from the FBI Uniform Crime Reports show a sharp reduction in the clearance rate of violent and property crimes after "Miranda". However, according to other studies from the 1960s and 1970s, "contrary to popular belief, Miranda had little, if any, effect on detectives' ability to solve crimes."
Legal developments.
The federal Omnibus Crime Control and Safe Streets Act of 1968 purported to overrule "Miranda" for federal criminal cases and restore the "totality of the circumstances" test that had prevailed previous to "Miranda". The validity of this provision of the law, which is still codified at 18 U.S.C. § 3501, was not ruled on for another 30 years because the Justice Department never attempted to rely on it to support the introduction of a confession into evidence at any criminal trial.
"Miranda" was undermined by several subsequent decisions that seemed to grant exceptions to the Miranda warnings, challenging the ruling's claim to be a necessary corollary of the Fifth Amendment. The exceptions and developments that occurred over the years included:
"United States v. Garibay" (1998) clarified an important matter regarding the scope of "Miranda". Defendant Jose Garibay barely spoke English and clearly showed a lack of understanding; indeed, "the agent admitted that he had to rephrase questions when the defendant appeared confused." Because of the defendant's low I.Q. and poor English-language skills, the U.S. Court of Appeals ruled that it was a "clear error" when the district court found that Garibay had "knowingly and intelligently waived his Miranda rights." The court investigated his waiver and discovered that it was missing all items for which they were looking: he never signed a waiver, he only received his warnings verbally and in English, and no interpreter was provided although they were available. With an opinion that stressed "the requirement that a defendant 'knowingly and intelligently' waive his Miranda rights," the Court reversed Garibay's conviction and remanded his case.
"Miranda" survived a strong challenge in "Dickerson v. United States", 530 U.S. 428 (2000), when the validity of Congress's overruling of "Miranda" through § 3501 was tested. At issue was whether the Miranda warnings were actually compelled by the Constitution, or were rather merely measures enacted as a matter of judicial policy. In "Dickerson", the Court, speaking through Chief Justice Rehnquist, upheld "Miranda" 7–2 and stated that "the warnings have become part of our national culture". In dissent, Justice Scalia argued that "Miranda" warnings were not constitutionally required. He cited several cases demonstrating a majority of the then-current court, counting himself, and Justices Kennedy, O'Connor, and Thomas, as well as Rehnquist (who had just delivered a contrary opinion), "[were] on record as believing that a violation of Miranda is not a violation of the Constitution."
Over time, interrogators began to devise techniques to honor the "letter" but not the "spirit" of Miranda. In the case of "Missouri v. Seibert", 542 U.S. 600 (2004), the Supreme Court halted one of the more controversial practices. Missouri police had been deliberately withholding Miranda warnings and questioning suspects until they obtained confessions, then providing the warnings, getting waivers, and eliciting confessions again. Justice Souter wrote for the plurality: "Strategists dedicated to draining the substance out of "Miranda" cannot accomplish by training instructions what "Dickerson" held Congress could not do by statute."
"Berghuis v. Thompkins" (2010) was a ruling in which the Supreme Court held that a suspect's "ambiguous or equivocal" statement, or lack of statements, does not mean that police must end an interrogation. At least one scholar has argued that "Thompkins" effectively gutted "Miranda". In "The Right to Remain Silent", Charles Weisselberg wrote that "the majority in "Thompkins" rejected the fundamental underpinnings of "Miranda v. Arizona"'s prophylactic rule and established a new one that fails to protect the rights of suspects" and that
<templatestyles src="Template:Blockquote/styles.css" />But in "Thompkins", neither Michigan nor the Solicitor General were able to cite any decision in which a court found that a suspect had given an implied waiver after lengthy questioning. Thompkins persevered for almost three hours before succumbing to his interrogators. In finding a waiver on these facts, "Thompkins" gives us an implied waiver doctrine on steroids.
In "Vega v. Tekoh" (2022), the Supreme Court ruled 6–3 that police officers could not be sued under a particular statutory cause of action for failing to administer the Miranda warning, ruling that not every "Miranda" violation is a deprivation of a constitutional right. In dissent, three justices held that the court had "repeatedly and emphatically" determined that the "Miranda" decision established a constitutional right, and would have allowed such lawsuits. According to pundits, the ruling "Vega v. Tekoh" "makes it easier for police to obtain coerced confessions – by continuing to ask questions even if someone doesn't want to speak" and "guts a major pathway for incentivizing police to provide a Miranda warning and ensuring their accountability."
Effect on law enforcement.
"Miranda"'s impact on law enforcement remains in dispute. Many legal scholars believe that police have adjusted their practices in response to "Miranda" and that its mandates have not hampered police investigations. Others argue that the "Miranda" rule has resulted in a lower rate of conviction, with a possible reduction in the rate of confessions of between four and sixteen percent. Some scholars argue that Miranda warnings have reduced the rate at which the police solve crimes, while others question their methodology and conclusions.
In popular culture.
The 2023 film Miranda's Victim directed by Michelle Danner explores the origins of the Miranda warning and the ultimate decision of the Supreme Court in favour of Miranda.
References.
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External links.
 is available from: Cornell CourtListener Findlaw Google Scholar Justia Library of Congress Oyez (oral argument audio)

Berghuis v. Thompkins
2010 United States Supreme Court case
Berghuis v. Thompkins, 560 U.S. 370 (2010), is a landmark decision by the Supreme Court of the United States in which the Court held that, unless and until a criminal suspect explicitly states that they are relying on their right to remain silent, their voluntary statements may be used in court and police may continue to question them. The mere act of remaining silent is not sufficient to imply the suspect has invoked their rights even when the suspect actually intended their silence to have that effect. Furthermore, a voluntary reply even after lengthy silence can be construed as waiving the right to remain silent.
The Court was split, 5–4. 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. At least one scholar argued that "Berghuis" effectively gutted "Miranda". The opinion is commonly criticized as giving police permission to compromise vulnerable citizens in interrogation and, in effect, making it easier for the police to work around the theoretical existence of those citizens' rights.
Background of the case.
Legal background.
Under U.S. law and with rare exceptions, people (whether criminal suspects or defendants or not) have the right to remain silent as part of their right not to incriminate themselves under the Fifth Amendment to the United States Constitution. Remaining silent is optional—they may speak or be silent as they wish. The "Miranda" warning concerns the duty of the police or other formal questioners to make sure that the suspect is aware they have that right prior to questioning, in case they want to be silent at some point or the suspect later pleads ignorance that they had the right (and would have relied upon it had they been aware). "Miranda v. Arizona", 384 U.S. 436 (1966), and related cases contemplate that a suspect might invoke their rights (make clear they wish to rely on them), waive their rights (make clear they do not wish to rely on them), or do neither of these. A number of cases such as the present one, refine "Miranda" by addressing when and at what point a suspect, who is aware that they have the right to remain silent, is said to have begun to rely on that right, as opposed to when they were aware of the right but were not choosing to rely on it.
Interrogation and conviction.
Police considered Van Chester Thompkins a suspect in a fatal shooting on January 10, 2000, in Southfield, Michigan. After advising Thompkins of his "Miranda" rights, police officers interrogated him. Thompkins did not state at any time that he wanted to rely on his right to remain silent, that he refused to talk to the police, or that he wanted an attorney. 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 (police described it as "nearly a monologue"). Towards the end, detectives tried a "spiritual" approach to "appeal to his conscience and religious beliefs". The police asked Thompkins three questions: did he believe in God, did he pray to God, and did he pray to God to forgive him for shooting the victim. He answered "yes" to each of these.
Thompkins made a motion to suppress the statements, claiming that he had invoked his Fifth Amendment right to remain silent by remaining silent, that he had not waived that right, and that his incriminating statements were involuntary. The trial court denied his motion, a jury found Thompkins guilty, and the court sentenced Thompkins to life imprisonment without the possibility of parole. Of note, there had been significant other evidence of guilt corroborating the conviction.
State court appeal and federal court "habeas corpus" proceedings.
Thompkins appealed his conviction on grounds that included suppression of his admission—that he had invoked and not waived his right to remain silent—and deficient representation related to improper jury instructions, but the Michigan Court of Appeals rejected Thompkins' "Miranda" claim. Thompkins then filed a writ of habeas corpus in federal District Court but it denied his request. However, the United States Court of Appeals for the Sixth Circuit reversed the District Court's decision, holding that the state court was unreasonable in finding an implied waiver of Thompkins' right to remain silent.
Petition to the U.S. Supreme Court.
The state's petition to the Supreme Court said the questioning had in the case had not been coercive, and the state offered the Court theories to support the idea that extended silence should not be construed as an invocation. 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. If the suspect was terminating the interview, then the suspect would not be able to hear any of the evidence against them before making a decision. In other words, the state asserted that requiring the suspect to explicitly invoke the right to silence was actually in the suspect's best interest.
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." They warned that, if the Court embraced a so-called "waiver by confession" rule, "Miranda" would be directly undermined because the coercive effect of hours of pressure in the interrogation environment could be ignored by courts just because the police heard what they wanted to hear.
The Court's decision.
On June 1, 2010, by a vote of 5–4, the Supreme Court reversed the Sixth Circuit's decision. In the Opinion of the Court, written by Associate Justice Anthony Kennedy, the Court ruled that Thompkins's silence during the interrogation did not invoke his right to remain silent and that he had waived his right to remain silent when he knowingly and voluntarily made a statement to police.
The Court quickly dismissed Thompkins's ineffective assistance of counsel claim with the test from "Strickland v. Washington": Thompkins needed to show that his lawyer's performance was objectively deficient "and" that he was prejudiced by the result. The Court said that it was "doubtful" that the lawyer's performance was objectively deficient because the lawyer neglected to request a jury instruction informing the jury of the acquittal of Thompkins's alleged accomplice. But, even if it had been deficient, the Court said there was enough other evidence of guilt corroborating the conviction that it was unlikely the jury instruction would have made a difference, so there was no prejudice.
Majority opinion.
The Court reasoned as follows on Thompkins' various arguments:
There was no good reason why the standard for invoking the "Miranda" right to remain silent and the "Miranda" right to counsel should differ because both require the interrogation to end when the right is explicitly invoked. Making either of these statements would have ended the questions but Thompkins made neither of them.
The Court further concluded (in line with previous cases such as "Davis v. United States") that there was good reason why invoking "Miranda" rights should require an unambiguous act of the accused and that courts should not look for implied invocations in the words of actions of the accused. These reasons included certainty for the police, the prosecutors, and the accused. The Court also cited social benefits from law enforcement.
The Court then considered whether the accused had taken action that waived those rights. Waiver must be a free choice with full awareness ("Moran v. Burbine"). "Miranda v. Arizona" (the "Miranda" ruling) states 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." It was noted that the accused had read and expressed understanding of the rights, and had them read aloud, he had not pleaded lack of understanding, was given time, and therefore knew his rights. Specifically, having read the 5th warning ("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 aware this right was enduring and could be applied at any time in the questioning if he chose, and the police would have to honor the invocation if he did so. The Court observed that "[p]olice are not required to rewarn suspects from time to time". That a question is linked to religious beliefs does not cause the reply to be "involuntary". The accused, understanding his rights and that they were capable of invocation at any point, had not chosen to invoke them.
The case of "North Carolina v. Butler "441 U.S. 369 (1979) showed 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". The Court held that where a "Miranda" warning had been given and was understood by the accused, an accused's uncoerced statement established an implied waiver of the right to remain silent. 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. Further corroboration was that he had sporadically made other comments as well.
The Court concluded that:
<templatestyles src="Template:Blockquote/styles.css" />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.
Sotomayor's dissent.
Associate Justice Sonia Sotomayor wrote the dissenting opinion for four Justices, her first major dissenting opinion on the Court. 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", and that "[S]uspects 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."
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. Zerbst"." It cited from "Miranda" that:
<templatestyles src="Template:Blockquote/styles.css" />[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 [...] the fact of lengthy interrogation... 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.
and that "Miranda" and "North Carolina v. Butler" both agreed that:
<templatestyles src="Template:Blockquote/styles.css" />[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."
Although giving "sporadic" comments during the interview, no answers had been given that touched upon the case. The Court had not previously considered "whether a suspect can invoke the right to remain silent by remaining uncooperative and nearly silent for 2 hours and 45 minutes" and the dissent considered that silence throughout a lengthy 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". Butler also distinguished between a "sufficient course of conduct" and mere "inculpatory statements".
The dissent concluded that the ruling was unnecessary in the changes it established, "flatly contradicts" "Miranda" and "Butler", and that "[e]ven if Thompkins did not invoke that right, he is entitled to relief because Michigan did not satisfy its burden of establishing waiver".
Other views.
Legal views and responses.
Responses to the ruling were divided with a significant number of commentators focusing upon the erosion of "Miranda", and others commenting upon the impact of the case on terrorism suspect interviews—a topic where Congress had recently attempted to legislate.
Cornell Law School professor Sherry F. Colb's discussion of the decision at "Findlaw.com" was one of the former. She called the decision "an alarming break with the philosophy of "Miranda v. Arizona" [that] leaves that decision to stand as an arbitrary disclosure requirement, rather than the protection against coercive interrogation that it was originally crafted to be". The author noted the purpose of "Miranda" was to address psychologically pressured interviews and that it had noted that adequate protection was essential in order "to dispel the compulsion inherent in custodial surroundings". The "Miranda" decision was intended to prevent coercion, not merely to require a "disclosure of legal facts". The present decision "allow[ed] a waiver of the right to occur after interrogation had commenced, through a response to that interrogation". As a result, two subtly different meanings of "right to remain silent" could be construed, and a suspect who was (in the words of "Miranda v. Arizona") "vulnerable, unassertive, and in need of protection"—precisely the kind of suspect "Miranda" aimed at protecting—would be left unaware "that one must utter magic words to go from possessing only one of these rights (to remain silent while interrogation takes place) to possessing the other right (to avoid interrogation altogether). In that way, according to Colb, "Berghuis" transformed "Miranda"'s guarantee of rights into a trap.
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 said "Berghuis" provided interpretive guidance when a suspect says nothing for an extended period. More significantly, he wrote, "Berghuis" symbolized and paralleled the Obama administration's favoring of the pre-2001 "terrorism-as-crime" paradigm over the "terrorism-as-war" paradigm of the Bush era. (See anti-terrorism legislation and Bush Doctrine). 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 concluded that the court's "new flexibility" might allow it to "ease the burden" on military, intelligence and police" by permitting "more [flexible responses to] terrorism within the criminal-justice paradigm, though at the expense of weakening the civil rights of all Americans." 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."
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, stated that the "Berghuis" decision was an acknowledgement of practical realities during interactions between police and suspects. He praised the court for placing limits on "Miranda"'s "artificial rule that is not really in the Constitution." He did not interpret the decision as damaging to the right against self-incrimination.
Emily Berman, counsel at the Brennan Center for Justice at the NYU School of Law predicted that "Police will interrogate criminal suspects who do not explicitly invoke their rights—often, those will be suspects who are unsophisticated, poorly educated or mentally ill—for hours on end. This will lead, just as inevitably, to more coerced—and therefore unreliable—confessions... the very phenomenon that "Miranda" aimed to eliminate." 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". She was reflecting upon attempts by Congress to amend "Miranda" legislatively, which the Supreme Court had previously opposed. She concluded that, although the Supreme Court would not tolerate legislative change to "Miranda", the Supreme Court itself was overly willing to narrow the rule itself.
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," 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." 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". Charles Weisselberg, a professor at Berkeley Law School, argued that "Berghuis" effectively gutted "Miranda", saying "the majority in ["Berghuis"] rejected the fundamental underpinnings of "Miranda v. Arizona"'s prophylactic rule and established a new one that fails to protect the rights of suspects." 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. He concluded that "Berghuis" was "an implied waiver doctrine on steroids."
Media response.
National and regional media outlets reported a range of views similar to the above:
* The "Kansas City Star" said that "Berghuis" was yet another decision that had "effectively nipped away at the "Miranda" ruling." The "Star" lamented that "few outside the legal community have taken note of the trend" because it had been happening gradually and the decisions favored the police over alleged criminals. The "Star" declared that "[z]eal for fighting crime shouldn't be allowed to undercut American standards like 'innocent until proven guilty'," and that "[g]ood policing is based on building cases, not on coercing confessions." It praised the dissent of Sotomayor, then the newest justice at the court.
* "The Bakersfield Californian" stated that "