Suspects must speak to remain silent, says Supreme Court

It looks like these police officers are taking this man's right to remain silent quite literally, as they're covering his mouth. In truth, this altercation appears to have occurred in a country that is not bound by Miranda Rights.

You have the right to remain silent. (Photo: Indocilis)

In her dissenting opinion, Supreme Court Justice Sonia Sotomayor argues that the court’s recent decision regarding how a suspect’s right to remain silent must be invoked effectively “turns Miranda upside down.” It used to be that a criminal suspect could simply remain silent in order to be shielded from forced interrogations – as granted by Miranda rights. Now they must actually break their silence in order to inform law enforcement that they wish to invoke their right to remain silent, reports the Associated Press.

Waiving your right to remain silent by being silent

In the case of Berghuis v. Thompkins 08-1470, Van Chester Thompkins claims he’d invoked his right to remain silent by remaining (mostly) silent. Mostly is the operative word because, like a consumer who found great rates on short term loans for bad credit, Thompkins couldn’t hold in his emotion. He let slip a damning “yes” when Michigan police asked him if he “prayed for forgiveness for shooting that boy (Samuel Morris),” referring to a January 10, 2000, murder in Southfield, Mich. An appeals court later threw out the confession and subsequent conviction, claiming that Thompkins’ generally uncommunicative state during his incarceration effectively invoked Miranda, which was ignored by law enforcement. However, the recent 5-4 ruling by the Supreme Court has overturned the appeals ruling.

Similar to invoking the right to legal counsel

The Supreme Court’s majority position on a suspect’s right to remain silent is similar to that of their view of invoking the Miranda right to a lawyer: the suspect must make a direct request. As Justice Anthony Kennedy puts it:

“Thompkins did not say that he wanted to remain silent or that he did not want to talk to police. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent.”

Presuming a suspect has waived their rights: murky territory?

Justice Sotomayor writes in her dissent to the majority opinion that the concept of requiring a suspect to speak out for their right to remain silent is at best counter-intuitive. At worst, she writes, this places suspects in a position where it can be easily assumed that are waiving their Miranda rights “even if they have given no clear expression of their intent to do so.” This, claims Justice Sotomayor, has “no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.”

Thompkins had indicated he understood his Miranda rights

For the most part, Thompkins was uncommunicative, save for an occasional “yes,” “no” or “I don’t know.” Is that, as well as some head-nodding and the “yes” statement after the prayer question, enough to indicate that a suspect is waiving his Miranda rights? Is the Supreme Court on the money here, or is their ruling too presumptuous? And do you agree or disagree with the path the Supreme Court has taken of late regarding the rights of suspects and criminals?


Berghuis v. Thompkins, 08-1470

Associated Press

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