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"If You Wish to Remain Silent, Speak Up."



Supreme Court Ruling:


"If you wish to remain silent, speak up!"


Subject:  Criminal Law

By:  Orange County Criminal Defense Attorney

Dyke Huish


The last three generations of Americans, who have grown up watching police shows on television, can quote the famous Miranda warnings by heart, or at least the first sentence: “You have the right to remain silent, anything you say can and will be used against you in a court of law.” That phrase as become a part of our culture.  We hear it in daily life. It is found on T-shirts and racked off by comedians during their routines. Many husbands or boyfriends have tried to lay claim to its powerful logic when asked, “How do I look in this dress?” It has become part of the fabric of our society.

We have come to understand it to mean that we don’t have to answer questions if we don’t want to.  The Miranda warnings have been a bedrock of criminal procedure since 1966. As a general rule, when people are arrested, they are not to be questioned until the police officer reads this statement. The individual then has the right to either answer questions or remain silent. More often than not people talk. They want to explain or try to talk themselves out of their current dilemma. The police are also exceptionally well trained at coaxing confessions out of suspects. They use a range of

tricks and tactics including guilt, lies, trickery, long hours of
interrogation, and the time-tested and movie-approved good cop, bad cop routine.  They also ask convoluted and compound questions, and in most cases, neither record or have the suspect sign a confession. The police officer simply writes down in his report what he thinks he was told. This already makes for a very difficult situation, which lawyers and judges deal with daily.

Now, the United States Supreme Court, in  5-4 vote, has made this analysis even more difficult.  On June 1, the Supreme Court ruled in
the case of Berghuis v. Thompkins, 10  C.D.O.S. 6731, that an individual who does not speak during an interrogation does not actually invoke the right to remain silent.  The court declared that in order for a person to invoke the right to remain silent, he must actually speak. While this may seem
contradictory, it does have a basis in logic.  The court decided that in order for the right o attach, the individual must state in “clear and unambiguous” language that he or she wants to remain silent. Simply remaining silent is not enough.


In Thompkins, the suspect was fully advised of his rights, and the police interrogated him about a shooting in which one victim died. At no point did he say that he wanted to remain silent, he did not want to talk with the police, or he wanted an attorney. He remained largely silent during the
three-hour interrogation.  After considerable questioning, he was asked “if he believed in God?” He answered, “yes.” The suspect was then asked if ”he prayed to God to forgive him for shooting that boy down?”   Tears welled up in his eyes and he answered, “yes:’ He was charged with the
murder, and at trial, his counsel moved to suppress the evidence as a violation of his right to remain silent. The trial court denied that motion, and after numerous appeals, the Supreme Court affirmed.

In the court’s holding, Justice Kennedy explained that in order for a defendant to invoke his rights, he must actually say that he wants to invoke those rights. Furthermore,that invocation must be a clear and unambiguous declaration of a desire to remain silent. The court also shifted the burden of declaring the right to remain silent in a clear fashion to the suspect, allowing the police to remain in a state of thoughtless stupor unless the suspect’s declaration is without question. The simple and new reality is that from this point forward, a suspect will be required to make it clear that he wishes to remain silent.

The police on the other hand, now have the luxury of remaining “ignorant” until such time as the suspect perfectly claims his rights.  The functional reality is that the job of  criminal defense attorneys just became harder.   The court now expects a defendant to understand that in order to invoke the
right to remain silent it is his or her responsibility to make sure the interrogator understands that the right has been invoked. This creates a new wall behind which a police officer may hide. In the days to come, we will start to see cases in which the police reports suggest that the individual did not make it perfectly clear he wished to remain silent.

The motion to suppress statements under Miranda will create new burdens for the defense.   In order to establish a Miranda violation, the defense will need to first establish that the defendant made a clear invocation of the right to remain silent. A skilled defense attorney will be careful in the cross-examination of the officer to show that the officer understood the defendant wished to remain silent. Carefully crafted questions will circle
around the fact the officer knew the defendant was telling him clearly he wished to invoke his rights to remain silent.  Cross examination will likely begin with a focus on the officer’s understanding of what the suspect said. These questions might be as simple as “Did you understand the defendant was trying to remain silent?” or “Certainly the defendant did not want to talk to you?” and “The reason you knew that was because all of his actions and words indicated he wanted to remain silent?”

It may be wishful thinking to believe that this new foundational element will be so easily established, but it is clear that one must try.  In other cases, a more subtle form of cross examination might employ a bit of reverse psychology. The defense attorney may be able to force the officer into a corner by asking questions about how difficult the client was to understand. On the one hand, the officer cannot understand the suspect’s requests to remain silent, but on the other hand, he understands the supposed confession with absolute clarity. The simple question, “Isn’t it true my client was difficult to
understand?” cannot be answered without a benefit one way or the other.  If the officer cannot understand him, then perhaps he did not understand his confession.  If he does understand him then it can be argued he understood his request to remain silent.  Additionally, as clients are advised about
potential police interrogations, the attorney will need to explain to the defendant that in order to remain silent and invoke his Miranda Rights, the declaration must be clear and unequivocal; for example: “1 am going to remain silent. I have nothing to say and wish to invoke all the rights I have under Miranda.

I want my attorney and now have nothing else to say: ’It is critical that the clients not say another word nor make any acknowledgment of
police questions.  The client should probably state his invocation if the police continue to ask questions and then remain silent. The game has changed and it is now essential that the client understand that after the in vocation, silence means just that, silence.

Perhaps this is what we want in society, broader powers for the police in their interrogations of suspects, or perhaps we fear a further erosion of our rights?  In either case, what is certain is that a person now has to actually speak in order to have the right to remain silent. Not only must he speak, but
that speech must make it clear he wishes to remain silent.


In Practice articles inform readers on developments in substantive law, practice issues or law firm management.


Contact Vitaly Gashpar with submissions or questions

Dyke Huish is a Criminal Defense Attorney
in Orange County
(949) 837-8600.


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