When arrested in the United States, we have the right to remain silent. Most of us know
this without attending law school or having ever interacted with law enforcement
agents because of pop culture representations of the Miranda warnings;
however, one thing that many might not understand despite frequent repetition
is their right to remain silent, is how to properly invoke this right.
Case Example Involving the Right to Remain Silent
Consider the case of Van Chester Thompkins. Thompkins was arrested and
sat in virtual silence for nearly three hours after he was read his Miranda
rights. To many, nearly three hours of silence might seem to indicate
that he intended to invoke his Miranda rights and remain silent.
In a decision earlier this year, the
Supreme Court of the United States ruled that enduring two hours and 45
minutes of interrogation in silence was not sufficient to invoke the right
to remain silent. Rather, suspects are required to affirmatively and unambiguously invoke
Writing for the majority in Berghuis v. Thompkins, Justice Anthony M. Kennedy
said that an individual must expressly invoke his or her rights, even
after hours of continued silence in interrogation. If an individual eventually
responds to an inquiry, this can be viewed as an implied waiver of the
right to remain silent.
Police do not need to obtain an affirmation of waiver or even pose any
follow-up questions regarding the suspect's purported waiver of the
right to remain silent. The Court likened the case to a prior case, Davis
v. U.S., which requires suspects to claim clearly and unambiguously their
right to counsel after receiving Miranda warnings.
In her dissent, Justice Sonia Sotomayor said that requiring suspects to
speak to invoke their right to remain silent is counterintuitive. Essentially,
this interpretation presumes waiver even when suspects have given no clear
expression of such intent.
After intimidating and exhausting custodial interrogation, suspects who
may have intended to exercise their right to remain silent may make statements
or even offer confessions. The Thompkins Court did not indicate how long
police questioning could go on before it would be deemed coercive.
Hiring a Virginia Beach Attorney to Better Protect Your Rights
Ultimately, this ruling offers limited protection for those who are accused
of crimes, as many do not understand the need to affirmatively invoke
the right to remain silent. Anyone taken in for police questioning should
take immediate steps to protect his or her rights. Invoke the right to
remain silent, and request the right to speak with a
Virginia Beach criminal defense attorney.
Call The Law Offices of Daniel J Miller today to discuss your rights with our qualified defense lawyers.
Free evaluation offered.