Breaking the Silence: The New Miranda

“You have the right to remain silent.” However exercising this right just got a little more … vocal. According to a recent case, the Supreme Court of the United States has said that criminal suspects must speak up in order to protect their right to remain silent.

Waiver of the Right to Remain Silent

Since the 1966 decision in the case against Ernesto Miranda, the eponymous warning must be given to suspects when taken into custody. The Court in Miranda said that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” Instead, the government faced “a heavy burden” in attempting to prove that a suspect’s waiver was both knowing and intelligent.

In a 2010 case, the Court said the more appropriate rule is that the suspect must affirmatively and unambiguously invoke his or her right to remain silent in order to have statements or confessions suppressed. Van Chester Thompkins was arrested and read his Miranda rights; he refused to sign an acknowledgement that he understood his rights. After sitting in virtual silence through 2 hours and 45 minutes of interrogation, he answered yes to the following three questions: “Do you believe in God?” “Do you pray to God?” And “Do you pray to God to forgive you for shooting that boy down?”

Justice Anthony M. Kennedy wrote for the majority, saying that courts do not need to suppress statements made by defendants who, after being read their Miranda rights, did not expressly waive their rights, even if they spoke only after remaining silent through hours of interrogation. Responding to custodial interrogation can in and of itself amount to an implied waiver of the right to remain silent.

What it Means for Suspects

Jeffrey L. Fisher, co-chair of the amicus committee of the National Association of Criminal Defense Lawyers, has reportedly labeled the last couple of decades “death by a thousand cuts” to Miranda, saying that for the past 20 to 25 years, the Court has been whittling away at Miranda, “doing everything it can to ease the admissibility of confessions that police wriggle out of suspects.”

Criminal suspects who may have intended an exercise of their right to remain silent may make statements or confessions after the intimidation and exhaustion of police questioning. Police are not required to ask follow up questions, such as inquiring whether the person wants to waive the right to remain silent and speak to the police. Suspects should contact a lawyer immediately upon being taken into custody, in order to protect their rights and to avoid making statements that may later be used against them in court.