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Speak up and tell the police you are invoking your Miranda rights and you want an attorney.

Posted by attorney Robert LeBrasseur

Imagine you are arrested by the police and brought to the station for questioning. The police read you your Miranda warnings. You recall an attorney stating, "if the police are reading you your Miranda Warnings they are not questioning you to assist you but to build their case." You acknowledge you understand your rights but do not say anything else including failing to invoke your Miranda rights. Therefore you remain silent not saying anything in response to the police interrogation. You are interrogated for the next 2 hours and 45 minutes not saying anything in response to the interrogation. The police decide to take a different tactic and turn to the spiritual line of questioning. The police ask if you believe in God and if you pray for God’s forgiveness for committing the crime. With tears in your eyes you say “yes".

Should your response to “do you believe in God and if you pray for God’s forgiveness for committing the crime" line of interrogation be admissible? You were read Miranda and elected to remain silent for 2 hours and 45 minutes. Does that not indicate your desire to remain silent? The United States Supreme Court ruled in Berghuis v Thompkins, 130 S. Ct. 2250 (2010) that your silence for 2 hours and 45 minutes does not indicate your desire to remain silent.

Thompkins was arrested for murder and other charges. He was brought down to the police station for questioning following his arrest. He was read his Miranda rights but did not invoke them instead electing to remain silent. Approximately 2 hours and 45 minutes into the interrogation Thompkins in response to the interrogation indicated he did pray for God to forgive him. The Supreme Court found Thompkins’ silence was not an invocation of his Miranda rights. The Supreme Court ruled that a suspect’s right to counsel must be invoked unambiguously. If the suspect makes an ambiguous or equivocal statement or no statement, the police are not required to end the interrogation.

Berghuis v Thompkins is the reason you should speak up and then shut up when you are read your Miranda rights. You must inform the police with words that you are invoking your Miranda Rights, you do not want to answer any question, and that you would like an attorney. You should then remain silent except to answer routine booking questions. If you fail to speak up or remain silent anything you say can be used against you. Your Miranda rights are designed to protect you -- invoke them!

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