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Miranda Warning: U.S. Supreme Court Says Speak Up to Remain Silent

by | Jun 3, 2010 | Criminal Defense

Even if you have never heard of Miranda v. Arizona, you already know the resulting admonishment. You hear it every time the cops slap the cuffs on the bad guys on tv or in the movies:

“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 free of charge. Do you understand these rights as they have been read to you?”

If you are reading my blog, you may have unfortunately heard these words recently yourself. This admonishment is the result of the landmark 1966 U.S. Supreme Court decision Miranda v. Arizona 384 U.S. 436 (1966). In a nutshell, any time the police arrest you or conduct a “custodial interrogation” they must advise you of your right to remain silent and your 6th Amendment right to counsel, to enable statements you thereafter make fair-game to be used against you in court. If you are arrested, and not advised of your Miranda rights, any statements you make cannot be used to incriminate yourself. Conversely, if you have been advised of your Miranda rights, and choose to give a statement to police – this statement can be used against you.

Yesterday, The U.S. Supreme Court, in a 5-4 decision Berghuis v. Thompkins (No. 08-1470) 547 F. 3d 572, held that in order for you to invoke your right to remain silent under Miranda, you must paradoxically voice your desire to remain silent. Actual silence, according to the Supreme Court, does not mean you wish to remain silent. In this week’s case, Mr. Thompkins was interrogated by Michigan Police Detectives for over three hours and said nothing until he answered “yes” when asked if he prayed to God to forgive him for the shooting. Because he had not expressly said that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney Mr. Thompkins did not invoke his Miranda rights and his statement was admissible in court.

Bottom Line — Don’t just shut up; tell the police you are shutting up, then shut up.

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