SUPREME COURT SAYS SPEAK UP TO INVOKE YOUR RIGHT TO REMAIN SILENT | Dallas, Texas Personal Injury Attorney Blog

The Supreme Court of the United States of America has ruled in the case of Berghuis v. Thompkins that criminal suspects must explicitly and unambiguously tell police they want to invoke their right to remain silent. We have all heard the Miranda warning on police shows and movies. It is the first warning that is given to a suspect once the suspect is placed in custody.

In 1966, the Supreme Court ruled in Miranda v. Arizona that the Fifth Amendment and Sixth Amendment rights of Ernesto Arturo Miranda had been violated during his arrest and and questioning in connection with charges of rape and kidnapping. Interestingly, Miranda was subsequently retried, found guilty and sentenced to 20-30 years even with the Court having thrown out his statements that were obtained during the questioning by police.

The Supreme Court did not specify the exact wording to use when informing a suspect of their rights. However, a basic Miranda warning has become standardized so that police know that the suspect has been properly advised of his or her rights. The typical Miranda warning is as follows:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?

The right to remain silent and a right to a lawyer are the first part of the Miranda rights warnings, and are considered to be the most fundamental parts of the rights persons have under our Constitution against self-incrimination. But the 9 Supreme Court Justices ruled in this 5-4 split decision that suspects must tell police they are going to remain silent and must tell the police to stop an interrogation, just as they must tell police that they want a lawyer.

The ruling comes in a case where a suspect, Van Chester Thompkins was arrested for murder, and remained mostly silent for a three-hour police interrogation before implicating himself in a Jan. 10, 2000, murder in Southfield, Mich. He appealed his conviction, saying that he invoked his Miranda right to remain silent by remaining silent.

During a three hour interrogation of Thompkins, officers acknowledged that Thompkins said little during the interrogation, occasionally answering “yes,” “no,” “I don’t know,” nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for “shooting that boy down,” Thompkins said, “Yes.”

Justice Anthony Kennedy, wrote that Thompkins’ decision to remain silent through most of the interrogation was not enough to invoke his right to remain silent. “Thompkins did not say that he wanted to remain silent or that he did not want to talk to police,” Kennedy said. “Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent.”

Justice Sonia Sotomayor, the court’s newest member, wrote a strongly worded dissent, saying the majority’s decision “turns Miranda upside down.” “Criminal suspects must now unambiguously invoke their right to remain silent – which counter-intuitively, requires them to speak,” she said. More interestingly, Justice Sotomayor pointed out that unlike most constitutional rights which are strictly protected absent a clear and affirmative waiver of the right, as a result of this decision, the law will presume that all suspects have chosen to waive his or constitutional rights in the absence of a clear and unambiguous statement of an intent not to waive that right. Justice Sotomayor commented, “…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.”

Obviously, we hope that no one ever finds themselves in a situation where they are being wrongful accused of committing a crime and being interrogated by the police, and being forced to consider whether or not to invoke the right to remain silent. However, this case has much broader implications than just the constitutional rights of a single American to remain silent when being questioned by police. For example, last month, President Obama indicated that he has asked the Department of Justice to research ways to try to peal back some of the constitutional protections given to individuals (both American citizens and international suspects) during police interrogations to better enable law enforcement agencies to investigate and to prevent terrorism. In particular, the administration is considering ways to avoid the requirement of giving Miranda warnings to terrorism suspects. However, our constitution does not currently currently make distinctions in the constitutional rights of suspects have depending upon the nature of the charges being investigated or pursued.