The Right to Remain Silent--Speak up!

The United States Supreme Court ruled this week that in order to invoke the "right to remain silent", a person subject to police interrogation must speak up. Because the defendant in Berghuis v. Thompkins did not verbally communicate to officers that he wanted to invoke his right, he was subjected to a three hour long interrogation that resulted in a confession. Mr. Thompkins also did not invoke his right to a criminal defense attorney.

The reliability of confessions produced from these situations is troubling. Unsophisticated, unaware, and poorly educated citizens may not understand the need to invoke their 5th Amendment right in order to stop police questioning. This is a troubling new development in the area of criminal defense.

Justice Sonia Sotomayor called the court's ruling a "major retreat" from protections against self-incrimination guaranteed by the original Miranda ruling. "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."

If you or anyone you know has been the subject of a criminal investigation, please call the Law Offices of David Diamond for sound legal advice about protecting your constitutional rights.