Since the framing of the constitution, all of us have had the right to remain silent, and not have it used against us. Problem was much of the population was ignorant to the fact so their rights were often waived or violated. Many didn’t even realize that they have a 5th Amendment right to remain silent and may plead it anytime to prevent self incrimination. Police had and still exhibit the attitude that if a suspect waives his rights while in custody, without realizing he is not required to do so, it was the suspect’s problem. After all, they lacked the knowledge and failed to invoke their rights. If you become a suspect always be wary of answering questions whenever an officer is involved, whether or not you are in custody.
This right of remaining silent is so basic that everyone in custody should be aware of it, so as not to incriminate themselves; unless they were making that decision intelligently after being warned of the consequences. Miranda is the primary case from Phoenix Arizona, where Ernesto Miranda, was arrested and confessed not only to the crime for which he was accused, but several others he had not been accused of. The trial court refused to eliminate the statements Miranda made in his confession. Subsequently, Miranda was convicted and appealed based on the fact that he did not understand his right against self-incrimination.
In 1966, on appeal the United States Supreme Court settled the case with a landmark decision. Which basically said that a suspect has the right to remain silent and statements made while in custody may not be used against them unless they have been advised of their rights and waived. I ask clients who have been in custody whether Miranda warnings were read to them prior to the custodial interrogation; and they often ask, what is Miranda? I won’t go into the look on my face after this response. Virtually all of us at some time or another have heard the original warning, which goes thus:
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense. Many are under the mistaken belief that anytime police question them regardless of the situation, they are required to read you Miranda warnings. That is absolutely false. Recall that Miranda warnings are only required if you are in custody. Not just anytime you are speaking to police. So, after Miranda warnings are read, what’s the next move? If you don’t say anything or if you tell the officer that you want counsel; the questioning should stop. But realize those same officers that sit on the witness stand relaxed and composed; are the same ones who get loud and boisterous; scream; play games; lie and use assorted tricks to get you to waive your rights or break your silence.
Now we know people have an inherent ability to remain silent if it pleases them. Herein lies the problem. Unfortunately for some of us, we have the right to remain silent, but we lack the ability. Always realize that police are being up front when they say, “Anything you say, can and will be used against you.” This lesson is vital because there are many ways of interpreting what we say. Nevertheless, we all know some who just can’t wait to spill their guts and have no regard for what is said. It’s as if we have reverted back to our childhood, remember when we were told that police are our friends. When you become a suspect, they are in direct opposition. But, instead of remaining silent, some of us want to defend ourselves; demonstrate our innocence, or just plain pontificate. Fight the urge and give your present or future counsel a fighting chance at your defense. Allow his judgment to disclose the truth at the proper juncture. Whenever an incident occurs, of course police are required to conduct an investigation, but you are not required to assist them by waiving your rights. So before you forego your rights, by listening to that inner voice which says, “help, I’m talking and I can’t shut up”, Just Say Nothing! Lately, things have changed slightly. Now to assert your rights, you must either inform officers of your option, or simply continue to remain silent.
In 2010 the United States Supreme Court in Berghuis v. Thompkins, modified its ruling in Miranda. In this case a suspect, named Thompkins was given Miranda and after almost 3 hours of questioning said nothing. Finally towards the end of the interrogation Thompkins spoke, and that damaging statement resulted in the initiation of a modified decision. Now you would think that since Thompkins had remained silent for the most part, his Miranda Rights had been invoked. But, towards the end Thompkins answered some questions with yes or no. When the interrogation was almost over, Thompkins was asked, “Do you believe in God?” His answer “Yes.” He was asked, “Do you pray to God to forgive you for shooting that boy down?” He answered, “Yes.” Thompkins was subsequently charged with first-degree murder, and other offenses.
According to the United States Supreme Court, “If the accused makes an “ambiguous or equivocal” statement or no statement at all, the police are not required to end the interrogation, or ask questions to clarify the accused’s intent. Court continued with, “if the accused had said he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning. He did neither.” Court basically said because the suspect remained silent after receiving Miranda and undergoing questioning for three hours; by speaking or answering questions the suspect waived his right to remain silent; which he had been previously asserting. After giving Miranda warnings, police may constantly interrogate a suspect who has neither invoked nor waived their Miranda rights. They don’t have to stop interrogation until you pick an option. Court went on to say that because Thompkins had not informed officers of whether or not he wanted to assert his rights, officers were within the law to continue the interrogation. Meaning since, police had no idea what a suspect wants to do; in order to invoke his right to remain silent; or right to an attorney; you must speak to assert your right. How about that, you’ve got to open your mouth in order to say you want to keep it closed. Confused! Don’t be, it just means that you must have your wits about you when you are a suspect under investigation.
If you inform officers that you don’t wish to speak to them, the interrogation should be over. If you don’t inform officers in some way that you want to remain silent, the interrogation may continue. So how do we proceed? After Miranda Warnings are given, use phrases to this effect: officer, I assert my right to be free from your questions; officer, I assert my right to remain silent; officer, I assert my right to counsel; or officer, please direct all questions of me to my attorney. Then Be Quiet. The law is dynamic and it is imperative to know your rights. Consider how a confession or admission without thought will look if you go to trial. Consider what type of defense you leave your attorney when they attempt to represent you. Even when you are stopped in a vehicle, let your driver’s license or ID card speak for you. Don’t start jabbering and you won’t have to worry about when to stop.