You Want to Remain Silent? Then Speak Now

The most important piece of advice a criminal defense attorney can give her client is to remain silent. It sounds so easy. But, in reality, it is very difficult to do. Recently, the Supreme Court just made it harder.

In an unfortunate decision by the Supreme Court on June 1, 2010, suspects now have to explicitly tell police that they want to remain silent and that they want an attorney. As per the Court’s decision, remaining silent after being told you have the right to remain silent, isn’t enough to protect you from an onslaught of questions from the police.

It just isn’t right.

The Supreme Court case I’m referring to is Berghuis v. Thompkins. Here, Mr. Thompkins was apprehended as a suspect in a year-old Michigan murder case. Mr. Thompkins was arrested and transported to the police department for interrogation. He was put in an 8 x 10 foot room, seated on a small wooden school chair, and interrogated for 3 hours by two police officers.

At the beginning of the interrogation, the detectives read Mr. Thompkins his rights from a Miranda form. Mr. Thompkins was asked to sign the form to acknowledge that he understood his rights. He did not sign it.

Then, for nearly the entire 3-hour interrogation, Mr. Thompkins remained silent. One officer then started asking Mr. Thompkins about his believe in God. Mr. Thompkins started to cry and when the officer asked if Mr. Thompkins was going to ask God for forgiveness for shooting the victim, Mr. Thompkins said, “yes”.

Mr. Thompkins was convicted at trial.

The Supreme Court found that even though Mr. Thompkins was silent for 2 hours and 45 minutes out of a 3-hour interrogation and even though he refused to sign the Miranda form, his silence alone was not enough to invoke his 5th Amendment right to remain silent. The Court found that Mr. Thompkins waived his right to remain silent because he made a few one-word answers, including the incriminating one.

Justice Sotomayor sharply dissented and said the ruling turned Americans’ rights of protection from police abuse “upside down.”

Here is the take home lesson to anyone who may find themselves at the mercy of 2 detectives, in an 8 x 10 room, sitting in a wooden school chair:

1.TELL the police that you want to remain silent

2.TELL the police you want an attorney

3.Then, after you said #1 and #2, REMAIN SILENT.

 

So, it is with a sigh of disappointment that I post the Supreme Court’s ruling for you to read. http://www.supremecourt.gov/opinions/09pdf/08-1470.pdf