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Old 06-01-2010, 09:41 AM   #1 (permalink)
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You have the right to remain silent

Quote:
Mere Silence Doesn’t Invoke Miranda, Justices Rule
By THE ASSOCIATED PRESS

Filed at 10:59 a.m. ET

WASHINGTON (AP) -- The Supreme Court ruled Tuesday that suspects must explicitly tell police they want to be silent to invoke Miranda protections during criminal interrogations, a decision one dissenting justice said turns defendants' rights ''upside down.''

A right to remain silent and a right to a lawyer are the first of the Miranda rights warnings, which police recite to suspects during arrests and interrogations. But the justices said in a 5-4 decision that suspects must tell police they are going to remain silent to stop an interrogation, just as they must tell police that they want a lawyer.

The ruling comes in a case where a suspect, Van Chester Thompkins, remained mostly silent for a three-hour police interrogation before implicating himself in a Jan. 10, 2000, murder in Southfield, Mich. He appealed his conviction, saying that he invoked his Miranda right to remain silent by remaining silent.

But Justice Anthony Kennedy, writing the decision for the court's conservatives, said that wasn't enough.

''Thompkins did not say that he wanted to remain silent or that he did not want to talk to police,'' Kennedy said. ''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.''

Justice Sonia Sotomayor, the court's newest member, wrote a strongly worded dissent for the court's liberals, saying the majority's decision ''turns Miranda upside down.''

''Criminal suspects must now unambiguously invoke their right to remain silent -- which counterintuitively, requires them to speak,'' she said. ''At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.''

Van Chester Thompkins was arrested for murder in 2001 and interrogated by police for three hours. At the beginning, Thompkins was read his Miranda rights and said he understood.

The officers in the room said Thompkins said little during the interrogation, occasionally answering ''yes,'' ''no,'' ''I don't know,'' nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for ''shooting that boy down,'' Thompkins said, ''Yes.''

He was convicted, but on appeal he wanted that statement thrown out because he said he invoked his Miranda rights by being uncommunicative with the interrogating officers.

The Cincinnati-based appeals court agreed and threw out his confession and conviction. The high court reversed that decision.

The case is Berghuis v. Thompkins, 08-1470.
Do you believe that you have to explicitly invoke your right by actually speaking and saying, "I am invoking my right to remain silent." and then remaining silent?

Quote:
Justice Sonia Sotomayor, the court's newest member, wrote a strongly worded dissent for the court's liberals, saying the majority's decision ''turns Miranda upside down.''

''Criminal suspects must now unambiguously invoke their right to remain silent -- which counterintuitively, requires them to speak,'' she said. ''At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.''
I think she writes well on this. What about someone who doesn't speak english? Just the fact that they sit there quietly affords them the same protections as the individual who invokes their right to remain silent by the same action of being silent.

Personally, I think it's a stupid case and don't see how it could be a benefit to a defendant who has to speak in order to remain silent.
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Old 06-01-2010, 10:09 AM   #2 (permalink)
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Old 06-01-2010, 10:17 AM   #3 (permalink)
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Remaining silent and invoking Miranda are not always the same thing.
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Old 06-01-2010, 10:23 AM   #4 (permalink)
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I don't see much of a problem. It's not that hard to say "I would like to remain silent" or something similar. This should cut down miscommunication, as you are specifically saying you want to invoke your rights, instead of just being silent which could mean anything.
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Old 06-01-2010, 10:24 AM   #5 (permalink)
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I don't understand this decision. For one, if someone asks me a question, they can't make me answer it. Thus my right is being executed through my silence. It seems like if I did not have this right, the police could engage in activities to force me to speak (torture?) I don't understand why SCOTUS took this case, or why they ruled this way. How does this play out in court?

"Your honor, we gave him his miranda and we started questioning him. He just sat there and didn't answer our questions. We DEMAND that you make him answer us or make him tell us that he isn't going to answer us." Gee, that's a great use of the limited resources within the judicial system.
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Old 06-01-2010, 10:25 AM   #6 (permalink)
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Repeat after me, folks:

I do not wish to make any statement at this time. I do not consent to any search of my person, property, papers or effects. I wish to speak to an attorney immediately.

Repeat as necessary. SAY NOTHING ELSE. This entire ruling stinks, and here's what it smells like: an attempt to force defendants into uttering the jury-prejudicing words "incriminate myself" or "self-incrimination" or some permutation thereof, ie "Under my 5th Amendment rights, I refuse to answer the Prosecutor's question on the grounds of self-incrimination." While this phrasing does not admit specific guilt, it -does- acknowledge that the answer would be incriminating and thereby requires the defendant to admit general guilt while being "allowed" to not confirm specific guilt. Any Juror hearing -that-, especially with all the "help" jurors get in making up their minds these days (ie Judge's "instructions") will all but default to conviction.

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Old 06-01-2010, 11:04 AM   #7 (permalink)
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Quote:
Originally Posted by warrrreagl View Post
Remaining silent and invoking Miranda are not always the same thing.
Actually Miranda does not require you to invoke it to remain silent, but the cops don't know that is your intent without you saying so. The real problem here is the guy did not display this intent by saying so, AND he did not keep silent, he answered questions. Obviously his intent wasn't to keep silent. Either just shut the hell up altogether, or tell the cops you are not going to be answering questions. I don't see a problem with having to state intent, especially after he was read his rights before questioning, which he participated in.
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Old 06-01-2010, 11:21 AM   #8 (permalink)
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Quote:
Originally Posted by Iliftrocks View Post
Actually Miranda does not require you to invoke it to remain silent, but the cops don't know that is your intent without you saying so. The real problem here is the guy did not display this intent by saying so, AND he did not keep silent, he answered questions. Obviously his intent wasn't to keep silent. Either just shut the hell up altogether, or tell the cops you are not going to be answering questions.
I generally agree with this statement. I think it should be perfectly clear and practicable to invoke your right to silence by simply staying silent. But then you actually have to not answer questions.

Ideally, I also agree that it is best to state unambiguously that you are invoking your right to silence, and that you consent neither to questions nor searches, and that you demand a lawyer. But I can envision plenty of situations where an arrestee either is incapable of such a statement, or is unaware of how the system works, or presumes that no such statement is needed, having been read their Miranda rights.

If it is fair to say that people should try to be a little more proactive about stating their intent to invoke their rights, then it is also more than fair to say police should also be much more cautious about potentially illegal questioning.

The SCOTUS should never have taken this case. And having done so, their ruling here is awful: Justice Sotomayor is entirely correct in that it turns Miranda on its head. But what did we expect? The court has moved sharply rightward, and the right wing only believes in privacy rights for people who can pay for them.
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Old 06-01-2010, 03:44 PM   #9 (permalink)
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I've been arrested more than once and never been read my rights. I've been called a respondent, but not required to. I've spoken & been told to shut up. I've capriciously signed documents in blood from the wounds caused by struggling against the 'cuffs. Overall, the authorities have been very nice to me, but the inconsistent way in which policies are enforced strikes me as strange. Does invoking your right to remain silent abrogate it? I'll probably never demand it...
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Old 06-01-2010, 05:38 PM   #10 (permalink)
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I think someone should have to respond to Miranda if only to acknowledge their understanding of their rights. If you talk after that acknowledgment then you are pretty much waiving your right to remain silent.

Either lay it all out or get a lawyer and keep your mouth shut, there really shouldn't be a middle ground here.
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Old 06-01-2010, 08:01 PM   #11 (permalink)
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Well, in the case in question, apparently the guy was interrogated for three hours, remaining silent, and finally 'broke' and confessed to the crime. I guess what bothers me here is that, upon being told that he has the right to remain silent, a suspect can then do exactly that and be interrogated for three hours solid. It seems to weigh things in favor of those who educate themselves and know the 'magic words' that will make the cops leave them alone. On the other hand, simply acknowledging that you are exercising your right to remain silent is nice, explicit, and clean.

What if you do exercise your miranda rights, are the cops allowed to then interrogate you for three hours? What if you do the miranda thing, get interrogated for 3 hours, and finally say "Oh, fine, whatever, I did it, just leave me alone!"? Can that be used against you?
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Old 06-02-2010, 04:35 AM   #12 (permalink)
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Quote:
Originally Posted by The_Dunedan View Post
Repeat after me, folks:

I do not wish to make any statement at this time. I do not consent to any search of my person, property, papers or effects. I wish to speak to an attorney immediately.

Repeat as necessary. SAY NOTHING ELSE. This entire ruling stinks, and here's what it smells like: an attempt to force defendants into uttering the jury-prejudicing words "incriminate myself" or "self-incrimination" or some permutation thereof, ie "Under my 5th Amendment rights, I refuse to answer the Prosecutor's question on the grounds of self-incrimination."
The problem with just remaining silent is the question of how long do you have to remain silent before the police must assume you are asserting your rights? This went on for 3 hours with this guy, although he didn't remain silent - he was monosyllabic and generally uncommunicative.

As Dunedan says, an unequivocal statement that you wish not to answer questions takes care of that, and should be one of your first actions. It is somewhat similar to your right to a lawyer. The police need not assume you wish a lawyer until you communicate that to them explicitly. So forcing them to assume you wish to remain silent without saying so is a bit tough. Don't leave anything up to the police... make it known explicitly.

As for the 5th Amendment, you should never refer to wishing not to self-incriminate. You should simply state you wish to assert your 5th Amendment rights. Period.

I also highly recommend the following video series (I've only posted the first part)... they are a wonderful discussion of WHY the 5th Amendment is so important (we Canadians do not enjoy that protection):

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Old 06-02-2010, 08:54 AM   #13 (permalink)
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this ruling is actually crap. there have been a few other cases before this one where suspects have actually asserted their right to an attorney or to remain silent, only to have to continue enduring police interrogation and then be convicted on their utterances after the fact.
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Old 06-02-2010, 04:45 PM   #14 (permalink)
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Quote:

Van Chester Thompkins, remained mostly silent for a three-hour police interrogation

The officers in the room said Thompkins said little during the interrogation, occasionally answering ''yes,'' ''no,'' ''I don't know,''
It says right in the article he remained "mostly silent" occasionally answering questions. If you are answering some of the questions even with just yes/no/I don't know you are not exercising your right to remain silent. If he had in fact remained silent he would not have incriminated himself.
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Old 06-02-2010, 05:47 PM   #15 (permalink)
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Quote:
Originally Posted by GreyWolf View Post
I also highly recommend the following video series (I've only posted the first part)... they are a wonderful discussion of WHY the 5th Amendment is so important (we Canadians do not enjoy that protection):
This video series is GREAT! I enjoyed the hell out of it, and I watched all the parts this morning. Both men are very effective teachers, and they get the point across in ways that will guarantee a high retention rate. Thanks for this.
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Old 06-03-2010, 09:41 AM   #16 (permalink)
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Regardless of how you feel about the ruling, it is good practice to just be up front about exercising your right to ___ whether it is the attorney or silence or anything else. if you just sit there, how are they to know you want to invoke your right to anything? I don't see how this is inherently trampling on anyone's rights. Anyone who is aware of the right should have the mental fortitude to say something like what dunedan said, or at least something as simple as "I have the right to remain silent and I'm going to use it." or "I dont' have to talk to you because of my constitutional rights" etc. If anything this gives a clear directive, vs having to sit there and wait for x amount of time while the alleged perpetrator excercise their right to silence.
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Old 06-08-2010, 08:27 PM   #17 (permalink)
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We all have the right, some just don't have the ability

We all have the right, some just don't have the ability



I think she writes well on this. What about someone who doesn't speak english? Just the fact that they sit there quietly affords them the same protections as the individual who invokes their right to remain silent by the same action of being silent.

Personally, I think it's a stupid case and don't see how it could be a benefit to a defendant who has to speak in order to remain silent.[/quote]

Last edited by micster; 06-08-2010 at 08:30 PM..
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Old 06-08-2010, 09:18 PM   #18 (permalink)
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If you're arrested, simply shut your mouth and keep it closed until you're alone with your attorney. Do not evoke anything, do not repeat anything; stay totally, 100% silent. The importance of your silence cannot be overstated.
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Old 06-19-2010, 07:08 PM   #19 (permalink)
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Quote:
Originally Posted by Willravel View Post
If you're arrested, simply shut your mouth and keep it closed until you're alone with your attorney. Do not evoke anything, do not repeat anything; stay totally, 100% silent. The importance of your silence cannot be overstated.
not according to the OP...
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Old 06-19-2010, 07:13 PM   #20 (permalink)
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Quote:
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not according to the OP...
The police cannot force someone to speak following an arrest. The originalist cowards on the bench haven't changed that.
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Old 06-20-2010, 11:57 AM   #21 (permalink)
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It varies from jurisdiction, but there are places where the last line in the Miranda warning is such...

Quote:
Do you understand each of these rights I have explained to you? Having these rights in mind, do you wish to talk to us now?
It is on the law enforcement official to be certain that you completely understand your Miranda Rights. A simple "Yes I understand. I choose to remain silent and speak to an attorney." is a nice phrase to remember.
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Old 06-26-2010, 10:26 AM   #22 (permalink)
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Originally Posted by Pearl Trade View Post
I don't see much of a problem. It's not that hard to say "I would like to remain silent" or something similar. This should cut down miscommunication, as you are specifically saying you want to invoke your rights, instead of just being silent which could mean anything.
Well, there's an art of creating towards the lowest common denominator. In theory, I can see the confusion of having a right to remain silent that actually requires you to speak to invoke. It's illogical.

This particular case though has all the hallmarks of legal wrigling about. As someone already said - if you want to be quiet, just be quiet.
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