New changes to your right to remain silent!

[You Are Guilty]

Don't know if anyone noticed it, but a rather interesting decision was handed down today by our friends at the SCOTUS. Split right down party lines, the conservatives eked out a narrow victory:
http://www.supremecourt.gov/opinions/09pdf/08-1470.pdf

To (really, really) paraphrase, if you want to invoke your Miranda rights (both to remain silent and to get a lawyer), you will now have to speak up. This case centered around Thompkins, a "gentleman" (who might have committed a little murder) that was questioned for three hours, where he remained mostly silent - a few grunts, nods, etc... right up until the officer asked Thompkins whether he prayed to God for forgiveness for shooting down that man, to which Thompkins, illustrating why would never have a career at NASA, said "yes". The questioning stopped shortly thereafter, and Thompkins was later convicted and sentenced to life. The court basically said that the three hours of mostly silence was not in invocation of Miranda, and that the confession was freely made.

While on its face, the decision may sound silly ("you have to speak up to remain silent"), in effect, it does nothing more than require an objective standard to determine when someone is invoking their Miranda rights, as opposed to forcing the police to guess at what (subjective) acts or omissions might do so.

Moral of the Story: Best criminal practices now dictates that you say "I am going to remain silent" at the outset of any interrogation.


PS: For those who want a bit longer discussion without having to read the entire decision, you can try here:
http://www.scotuswiki.com/index.php?title=Berghuis_v._Thompkins

 

[HomeGuru]

WHht about I will remain silent or I choose not to talk?

 

[justalayman]

as you said (YAG), are the police supposed to guess what you mean?

It's like the joke about the kid that didn't talk until he was 16. No problems with the kid. It was just up to then he didn't have anything to say.

No reason to believe a suspect would be any different unless he does invoke his rights.

A suspect also has the right to start speaking at anytime as well even after invoking his rights to remain silent.

 

[You Are Guilty]

Of course its more nuanced than that, our friend Thompkins thought he'd pull a fast one and not sign the sheet with his Miranda rights listed on them (but did manage to read the one about the right to remain silent out loud).

The liberal dissent is an interesting read in any case.

 

[Mass_Shyster]

I'll admit I haven't read the decision yet, but one interpretation I read was that the police must cease the questioning as soon as the suspect invokes the right to remain silent. If the suspect merely remains silent, the police can continue asking questions.

 

[tranquility]

Geeeze people, read the case. Not a change, but a determination that those who are questioned need to invoke. As we have said. Repeatedly.

"I would like to speak to an attorney before further questioning."

Got it? Good. Know your rights. Don't do things just because the cop "asks" no matter how hard he asks.

This is no new thing, but what has been generally advised on the forum for a long while.

 

[justalayman]

"I would like to speak to an attorney before further questioning."

.

actually not even that. "I am going to remain silent" would be adequate. You do not need to invoke your right to an attorney to invoke your right to silence.

 

[tranquility]

"I am going to remain silent" would be adequate.

Not really, sorry. Study and learn why. Old case law is not abrogated by this decision. Many amendments, many decisions.

ASK FOR AN ATTORNEY.

Tell them you don't want to answer until you get one. But the key is an ATTORNEY.

Other theories require a lot of work.

 

[justalayman]

Not really, sorry. Study and learn why. Old case law is not abrogated by this decision. Many amendments, many decisions.

ASK FOR AN ATTORNEY.

Tell them you don't want to answer until you get one. But the key is an ATTORNEY.

Other theories require a lot of work.

well, since I quoted YAG for that, I figured it would be somewhat correct.

Moral of the Story: Best criminal practices now dictates that you say "I am going to remain silent" at the outset of any interrogation.

argue with YAG.

and to add to that, what if you do not intend on having an attorney? You are claiming you must talk if you don't invoke your right to an attorney? There is no requirement to have an attorney. You still have the right to refuse to answer questions.

 

[tranquility]

OK...YAG!!!! Two amendments are implicated. I don't think the fifth is the sole issue to a person who talks.

 

[StevenJ_420Law]

Personally, I dont see it as a change. It affirms how I have always interpreted it. And any "practice" for a suspect has ALWAYS been that you should expressly state you are remaining silent. Any police form has the question which essentially states "Rights Invoked" yes/no.

This was a no brainer.

If there was any other ruling, that would be ambiguous IMO.

 

[justalayman]

OK...YAG!!!! Two amendments are implicated. I don't think the fifth is the sole issue to a person who talks.

Do you see what being prejudiced gets you?

Nobody ever said the Miranda rights were based on only 1 amendment. The 5th and the 6th amendments are both referenced in the required Miranda rights notice but what does that have to do with invoking your right to STFU?

regardless what else you have a right to, you do have a right to STFU and once you invoke that right, the questioning stops.

the case at hand stated that if a person invokes their right to silence, then it must be respected but failure to give notice of invoking one's right but acting as if you had is not invoking one's right to remain silent. As such, the police have no duty to refrain from questioning and the information given by the suspect is admissible.

The suspect can rescind their invocation of the right at any time.

Obviously, a suspect also has a right to have counsel at any time as well. They are two separate rights

 

[You Are Guilty]

Ok, yes, technically speaking, if you are a criminal, your best bet is to say "I want a lawyer" since "I am invoking my right to remain silent" is implicit in that statement, whereas the opposite is not true. My comment was more for illustrative purposes, rather than as a "how-to" guide from the criminal element of society.

(However, if I misunderstood your posts, and your beef is the jumbled up application of the "test" for the right to counsel with the one for the right to remain silent, the majority uses Davis as their basis for doing so, and who am I to argue )

 

[tranquility]

"I would like to speak to an attorney before further questioning." and "I am invoking my right to remain silent" are not equivalent invocations.

In the former, questioning must STOP until the suspect consults council. (Or, the suspect re-initiates communication with the police.) In the later, the police, after immediately stopping and a passage of significant period of time can re-Mirandize and ask about unrelated crimes.

My understanding of Davis is that, to be an invocation, the statement must be sufficiently clear to a reasonable police officer that it was a request for council.

 

[justalayman]

"I would like to speak to an attorney before further questioning." and "I am invoking my right to remain silent" are not equivalent invocations.
..

nobody ever said they were. In fact, I said a persons right to remain silent can be revoked at any time by the suspect. The fact is; they are both invocations of their rights that will affect the actions of the interrogator.

In the former, questioning must STOP until the suspect consults council. (Or, the suspect re-initiates communication with the police.) In the later, the police, after immediately stopping and a passage of significant period of time can re-Mirandize and ask about unrelated crimes.

So, basically you are saying that both rights are absolute until such time the person revokes their claim of their rights.



In either case, the suspect can revoke their invocation of their rights. The only difference is with the right to remain silent, the interrogator can ask if the suspect wishes to waive their rights, correct?

and in either case, the suspect can continue to invoke their rights, correct?

HHmm, not seeing the point.