Supreme Court "Turns Miranda Upside Down" -- Suspects Must Clearly State They Don’t Want to Talk To Police to Exercise Their Miranda Rights; Mere Silence is Not Enough

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You have a right to remain silent? Well, not really, after the Supreme Court’s ruling this week in Berghuis v Thompkins. According to Los Angeles Criminal Defense Attorney Stephen G. Rodriguez, “it will take a pretty savvy criminal defendant to know that a Miranda warning (You have the right to remain silent…) doesn’t really mean what it seems to mean.” According to the ruling, a suspect may have a right to remain silent during police interrogations, but not until he tells his interrogators that he wants to exercise that right. As Justice Sonia Sotomayor observed in her dissent, it is completely counterintuitive.

[i]f [an] individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease…

On June 1, 2010 the United States Supreme Court rendered its opinion in Berghuis v Thompkins (No. 08–1470. Argued March 1, 2010.) The main issue in the appeal was whether Van Chester Tompkins, a suspect in a murder case, had waived his right to remain silent during a police interrogation. The right to remain silent was established in Miranda v. Arizona, a 1966 Supreme Court case. A typical Miranda warning is: “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?” According to the Miranda case, “[i]f [an] individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease…” (Miranda v. Arizona, 384 U. S. 436, 473–474 (1966)). According to Attorney Rodriguez, “Historically, a defendant has been able exercise his right to remain silent by doing just that – remaining silent. Now it appears that the police can interrogate a suspect until he utters some magic words, like: ‘I want to remain silent’ or ‘I don’t want to talk to you.’ When you think about it, it doesn’t make a whole lot of sense.” Just as Justice Sonia Sotomayor observed in her dissent to the majority opinion, the “decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak.” In other words, suspects must clearly state to police interrogators they do not want to talk in order to exercise their Miranda rights.

The Berghuis v Thompkins case now seems like an instruction book on what not to do during a police interrogation. The defendant, Thompkins, after being advised of his Miranda rights, largely remained silent during a three hour interrogation involving a shooting in which a victim had died. Thompkins never said that he wanted to remain silent or that he did not want to talk with the police. At the end of the interrogation, however, he answered “yes” when one of the officers asked if he prayed to God to forgive him for the shooting. Tompkins’ one word “statement” resulted in his prosecution and conviction for the victim’s murder. He unsuccessfully attempted to keep the statement from being used as evidence against him, claiming that he had invoked and had at no time waived his right to remain silent. The statement was used against him. Consequently, Tomkins was found guilty of first degree murder and was sentenced to life in prison without the possibility of parole.

According to Attorney Rodriguez, this Supreme Court’s decision will affect many more individuals than the defendant alone. “The Court not only created a rule for invoking one’s right to be silent, but also reformulated the prosecution’s burden of proof regarding whether that right has been waived.” He explains, “I completely agree with Justice Sotomayor, who pointed out that this decision ‘invites police to question a suspect at length—notwithstanding his persistent refusal to answer questions—in the hope of eventually obtaining a single inculpatory response which will suffice to prove waiver of rights.'’” Although the Supreme Court’s opinion describes the ruling as a natural extension of existing case law, Attorney Rodriguez feels that it significantly erodes a criminal defendant’s rights during a custodial interrogation. As he always tells his clients, “anything you say can and will be used against you.” Berghuis v Thompkins makes his warning more relevant than ever.

After an arrest, immediately hiring an experienced criminal defense attorney is critical to a successful defense. Many individuals are tempted to handle a police interrogation on their own; but as the Berghuis v Thompkins case shows, talking to law enforcement without consulting an attorney first is a serious mistake. The criminal defense attorneys at Stephen G. Rodriguez & Associates focus exclusively on criminal defense in Los Angeles. They are experienced and aggressive attorneys with a proven track record.

Stephen G. Rodriguez & Associates
633 West 5th Street, 26th Floor
Los Angeles, California 90071
(213) 223-2173

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