In 2010 the United States Supreme Court ruled that in order to invoke the “right to remain silent”, a person subject to police interrogation must affirmatively sound off. Because the defendant in Berghuis v. Thompkins did not verbally communicate to officers that he wanted to say nothing to them. Hearing nothing, the cops interrogated him for three long hours. Because he didn’t actually ask for an attorney, he didn’t get one, and the questioning continued until he confessed to a crime.
The reliability of confessions produced from this situation is suspect. Naive, uninformed, and poorly educated people may not understand that they need to clearly invoke their 5th Amendment right in order to stop police questioning. This is a concerning 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 Miranda. “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, you can trust the experienced former prosecutors and seasoned defense attorneys at Durflinger Oliver & Associates to provide sound legal advice about protecting your constitutional rights. Call today and schedule a free consultation and ask about our military discount and easy payment plans.
~ Jim Oliver, January 2015