Stifling the Right to Remain Silent

December 16, 2010 (Press-News.org) Stifling the Right to Remain Silent

When arrested in the United States, we have the right to remain silent. Most of us know this without attending law school or interacting with law enforcement agents, as a result of pop culture representations of the Miranda warnings. However, one thing that many might not understand despite frequent repetition of the right to remain silent, is how to properly invoke this right.

Consider the case of Van Chester Thompkins. Thompkins was arrested and sat in virtual silence for nearly three hours after he was read his Miranda rights. To many, nearly three hours of silence might seem to indicate that he intended to invoke his Miranda rights and remain silent.

However, in a decision earlier this year, the Supreme Court of the United States ruled that enduring two hours and 45 minutes of interrogation in silence was not sufficient to invoke the right to remain silent. Rather, suspects are required to affirmatively and unambiguously invoke this right.

Writing for the majority in Berghuis v. Thompkins, Justice Anthony M. Kennedy said that an individual must expressly invoke his or her rights, even after hours of continued silence in interrogation. If an individual eventually responds to an inquiry, this can be viewed as an implied waiver of the right to remain silent.

Police do not need to obtain an affirmation of waiver or even pose any follow up questions regarding the suspect's purported waiver of the right to remain silent. The Court likened the case to a prior case, Davis v. U.S., which requires suspects to claim clearly and unambiguously their right to counsel after receiving Miranda warnings.

In her dissent, Justice Sonia Sotomayor said that requiring suspects to speak to invoke their right to remain silent is counterintuitive. Essentially, this interpretation presumes waiver even when suspects have given no clear expression of such intent.

After intimidating and exhausting custodial interrogation, suspects who may have intended to exercise their right to remain silent may make statements or even offer confessions. The Thompkins Court did not indicate how long police questioning could go on before it would be deemed coercive.

Ultimately, this ruling offers limited protection for those who are accused of crimes, as many do not understand the need to affirmatively invoke the right to remain silent. Anyone taken in for police questioning should take immediate steps to protect his or her rights. Invoke the right to remain silent, and request the right to speak with a criminal defense attorney.

Article provided by The Law Offices of Daniel J Miller
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