If you don't speak, you might not get Miranda rights

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Editor - The Supreme Court says it is not enough to have the right to remain silent, a person has to speak and then be given that right.  The "Miranda" rights are not as easy as television dramas depict.

This information is critical for anyone, because anyone can be accused of a crime, even if not guilty of anything.

Here is an example an attorney sent to help in our understanding.

It is in the recent Supreme Court case of Berghuis v. Thompkins, a case in which the Court clarified the requirements for invoking the right to remain silent.

In 2001, Van Chester Thompkins, Jr. was arrested for assault in connection with a drive-by shooting that had occurred more than a year prior. Police officers warned him of his Miranda rights, including the right to remain silent; before interrogating him for nearly three hours. Throughout the interrogation, he remained virtually silent.

Near the end of the questioning, though, one officer asked Thompkins whether he believed in God. When Thompkins answered affirmatively, the officer followed up by asking whether Thompkins prayed for forgiveness for the shooting. Again, he answered affirmatively: "Yes." This one-word admission was used against Thompkins at trial, and he was convicted of murder.

To an outside observer, it might appear that Thompkins intended to invoke the right to remain silent. After being warned of his right to remain silent, he spent nearly three hours not speaking. Many might assume that his actions expressed his intent.

However, as the Supreme Court made clear, mere silence is insufficient to invoke the right to remain silent. Instead, the Court held, in the absence of a clearly worded statement invoking the right to remain silent, the assumption is that a criminal defendant has waived the right.

The Court relied on case law interpreting the Miranda right to counsel to fashion its decision. Under Davis v. United States, the court noted, the right to counsel must be unambiguously invoked. The failure of a criminal suspect to invoke the right to counsel or making just an ambiguous statement of intention to do so is insufficient to require police to stop an interrogation. The court reasoned that there was no basis for different rules for invoking the Miranda right to counsel and the Miranda right to remain silent.

But the Court's opinion did more than address the requirements for invoking the Constitutional right to remain silent. In order for a statement from a custodial interrogation of a criminal suspect to be admissible at trial, it is not enough that someone accused of a crime failed to invoke his right to remain silent; the suspect must have knowingly and voluntarily waived that Constitutional right.

The Court ruled that the waiver of rights need not be expressly stated but could be implied from evidence showing that Thompkins received Miranda warnings, understood them, and nevertheless provided uncoerced answers during police questioning.

Anyone brought in for questioning in connection with a crime should strongly consider immediately invoking their rights to remain silent by stating that they do not wish to speak about the case and insist on having an attorney present. Failure to do so carries a high degree of risk, with courts now free to infer implied waivers of constitutional rights from the failure to clearly state one's intentions to invoke their Miranda Rights.

There is nothing to be gained by making such a decision without the benefit of an experienced  attorney, especially if you are confused; and there are serious allegations involved.   There is, however, much to be lost, especially in cases where someone is truly innocent.