The "Unambiguous" Right to Remain Silent: Changes to the Miranda Warning; Berghuis v. Thompkins

The Right to Talk

I am not known for holding my tongue. I talk and talk and talk. I question, sass, cajole, kid, rant, discuss, inform and issue directives on a daily basis. In junior high, a friend once offered me a $1 to stop talking for 5 minutes. I don't believe I won that dollar.

I am almost never at a loss for words. It runs in my family…on both sides. My Darling Boys like to talk…a lot. I can talk myself out of, into, or smack in the middle of just about anything. Strangers become friends quickly. Try as I may, once I am comfortable in a situation, it will take a lot to shut me up.

DH is not such a talker and neither is his family. I think it took a while for them to get used to me. Or maybe they're still trying to get used to me. I certainly think in some situations silence is better, wiser, even preferred. But that just isn't me. There are a few exceptions.

The Right to Remain Silent

One exception that keeps my mouth shut is a legal situation. For instance, if my innocence and freedom depend on my silence, I will be silent. And so should you. I'm talking about the 5^th Amendment, the right to remain silent, the right against self incrimination, the right to an attorney, Miranda rights. I believe this is a right that everyone is familiar with if for no other reason than having watched way too many police shows on TV.

We all know the drill, right?

"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?"

It's something we all know, and many can probably even recite by heart, even if you have never had any run-ins with the authorities. However, in June of this year, the parameters changed a bit. It's a change I think is important to discuss. While you may not have ever been arrested and/or interrogated by the police, and you may never intend to be, it's my philosophy that one should always be prepared and be well informed about matters that might come in handy in certain situations. This topic fits the bill.

Miranda Rights

In 1966, the United States Supreme Court decided a landmark case, Miranda v. Arizona. This decision provided that a suspect must be informed of and understand specific legal rights upon arrest. For statements made by the arrestee to be admissible at trial the prosecution must prove that such statements were made after having been informed of the rights and subsequently, voluntarily waived such rights. Miranda protects both the police and the suspect, and greatly impacted how routine police procedure is conducted. Miranda rights can be invoked at any time during such interrogation. It has remained intact for over 40 years.

Berghuis v. Thompkins

In June of 2010, the U.S. Supreme Court decided Berghuis v. Thompkins. Their decision makes a slight, but important change to the Miranda requirements. Under Thompkins, a suspect who has been informed of his or her rights, but remains silent and does not "unambiguously" invoke them, but later answers a question during interrogation will be impliedly waiving those rights.

Analysis of Thompkins

To say it another way, a suspect must make a clear statement acknowledging that he or she understands the rights and wishes to remain silent, thereby invoking the rights and ending the interrogation at that time. If a suspect says nothing in response to the Miranda warning, remaining silent throughout an interrogation, but at some point answers a question, the answer is admissible because the suspect never invoked his or her rights and never ended the interrogation session. The answer, whether one word, as in the case of Thompkins, or an entire statement serves as a waiver of his or her rights.

The waiver need not be express, merely answering a question after failing to "unambiguously" invoke his or her rights is enough. Justice Kennedy writes in the Thompkins opinion,

"When the suspect knows that Miranda rights can be invoked at any time, he or she can reassess his or her immediate and long-term interests as the interrogation progresses. After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived Miranda rights."

There are three significant points to consider with this decision: 1) a suspect must clearly state whether invoking or waiving rights; 2) If there is no clear statement made invoking rights, the police may continue to interrogate the suspect unless or until the suspect clearly invokes rights at some point during the interrogation; and 3) If, having remained silently, neither invoking, nor waiving rights, the suspect makes any statement in answer to a question, the word or words spoken act as an implied waiver of rights, until or unless the suspect later "unambiguously" invokes his or her rights at a later time.

The Scoop

Whether you (or your child, heaven help you) ever need to know the ins and outs of Miranda rights, is yet to be seen, but it's important and I think fascinating information. On Wednesday, I will post tips on how to raise respectful, law abiding citizens who won't need to know how to conduct themselves during a police interrogation. Over and out.

Anna

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The Right to Bear Arms in Your Home: McDonald v. City of Chicago

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Driving to Distraction Part II: Why Using Your Cell Phone While Driving is as Dangerous as Driving Drunk

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Comments

[TLM]

Very interesting and important info! Thanks for keeping us informed of changes. I had read or heard about it, but it was better having it in print and written clearly by you!