You might have missed it this week, what with the official start of summer and the oil gusher in the Gulf, but the US Supreme Court handed down a big decision affecting your Miranda rights on June 1st. In a case called Berghuis v. Thompkins, the Court decided that you must expressly invoke your Miranda rights, and if you don’t, you have waived them. In other words, when the cops say “you have the right to remain silent and the right to an attorney even if you can’t afford one…” you have to SAY “I don’t want to talk” or “I want to remain silent” or “I want a lawyer” in order to take advantage of your Miranda rights. After this, the police must stop questioning you (or palling around with you or using whatever technique they have been using to get you to talk up to that point).
This case was decided with a 5-4 vote, with Justice Kennedy writing the opinion and Justice Sotomayor writing the dissent (joined by Justices Stevens, Ginsburg and Breyer). One of the reasons that Justice Sotomayor disagreed is that she thought it was counterintuitive to say that someone is “required to speak” in order to “remain silent.” It is a contradiction, but let’s take a lesson from the decision and the contradiction.
Obviously, it is important that you know your rights. And it is also easy to assume that Miranda rights don’t apply to you and never will. That’s just not true…it might not be you, but it might be someone in your family or a friend. So, LISTEN UP – here is the lesson. SPEAK UP AND INVOKE YOUR RIGHT TO REMAIN SILENT, SAY YOU DON’T WANT TO TALK, SAY YOU WANT A LAWYER!
Why? You are innocent – why not talk, help them out? What you probably don’t know is that the police are allowed to use all kinds of techniques to get you to talk, they can wear you down by going on for hours, they can promise you things if you just “confess a little,” they can lie to you (yes, it’s in the manual). At some point, you may even believe you did do something wrong, and there you go sliding down that slippery slope, when all you had to do to avoid it was to not talk. It may get you locked up for a while but it will be worth the wait. The convicted murderer at the center of the case at hand was being “mostly silent” during his interrogation and then the police asked him if he “wanted to pray for that boy he shot down” and he said “yes.” Bingo – confession!
Remember, this is not a discussion about whether this guy is guilty of murder – this is a question of what his rights were – what your rights are. Don’t forget this — You have the right to remain silent – BE SILENT…You have the right to an attorney even if you can’t afford one – ASK FOR AN ATTORNEY. One more reminder – if you forget this advice and start talking and then you change your mind – speak up at any time and invoke your rights – you can get them back and they have to stop questioning you.
It’s simple – you can deal with whether you have a good attorney later.
