Sunday, June 06, 2010

You have the right to remain silent

But you have to tell the police you're invoking it!

Some are hailing this as "Turning Miranda upside-down". From my reading, all it says is if you want to invoke your right to remain silent, you have to say so. The police should not have to guess.

More perspective here.

In assessing the rights and requirements of both law enforcement and the accused, the Supreme Court has applied a reasonable standard to both parties while balancing the rights of the individual with the necessity of protecting lawful interrogations.

At issue is whether an individual engages in a de-facto invocation of his right against self-incrimination merely through silence alone. The case before the Supreme Court, Berghuis v. Thompkins, centered on the admissibility of an inculpatory statement made by Mr. Thompkins following a 3-hour interrogation.
....
In a 5-4 ruling, the Supreme Court held that Mr. Thompkins statement was in fact admissible, stemming from his failure to "unambiguously" invoke his right against self-incrimination. Writing for the majority opinion, Justice Anthony Kennedy stated that, "Thompkins' silence during the interrogation did not invoke his right to remain silent." Kennedy further cited the need to "unambiguously" invoke one's Miranda right to counsel, relying on precedence established in Davis v. United States, 512 U.S. 452, 459.

In Davis, the Supreme Court held that until a suspect clearly states his desire to have counsel present during an interrogation officers are not required to conclude an interview.
....
Rather than muddling the standards necessary to allow investigators to conduct interrogations, Thompkins has provided a reasonable judgment by which a measure of responsibility is now placed on both law enforcement personnel and the suspects being questioned. Familiarity with one's Miranda rights has become ubiquitous throughout society. Pop culture, music, television, and Hollywood have stamped the individual's right to remain silent within the American lexicon. Given the apparently wide reach of that understanding it is not unreasonable to require an individual to "unambiguously" declare their desire to invoke it.

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