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Do I Still Have A Right To Remain Silent After Supreme Court's attack on Miranda.

Posted by attorney James Rowe

As a child, my mother often would quote a proverb to me: don't speak unless you can improve the silence. Needless to say, I took the hint. But the United States Supreme Court begs to differ, flexing its muscles in the case of Berghuis v. Thompkins - a case that threatens to turn Miranda on its head and weaken our rights under the Fifth Amendment. Decided during its most recent term, the Thompkins Court ruled that an individual being questioned by the police must affirmatively and specifically state his intent to invoke his Fifth Amendment right to remain silent; simply remaining quiet will now be considered a waiver of that right. Given the facts of Thompkins, and the radical disregard for longstanding precedent by the Court's conservative bloc (whom [pre]tend to abhor activist judges), one can only conclude that Fifth Amendment Miranda rights in this Country are now a thing of the past. Thompkins was arrested by Southfield, Michigan police in relation to a shooting-murder. At the beginning of the interrogation, Thompkins was read his Miranda rights but refused to sign any document acknowledging that he understood those rights, let alone waived them. During the first two hours and forty-five minutes of his interrogation by two detectives, Thompkins remained silent. Nonetheless, the questioning continued. Finally, as officers were at wits end and the questioning was going nowhere, they asked Thompkins three questions playing upon his faith: "Do you believe in God?", "Do you pray to God?" and "Do you pray that God forgives you for shooting that boy?" To each question, Thompkins simply responded "Yes." The State sought to use that last "Yes" as a confession at trial, and the trial court permitted it, denying Thompkins' motion to suppress. The Defendant was convicted of the murder, and his appeal followed. The Supreme Court upheld the trial court's decision, ruling that despite the fact Thompkins remained silent through nearly three hours of relentless questioning, he waived his right to remain silent by giving those three simple "yes" answers and speaking to say he "didn't want a peppermint". Surely, Miranda is turning over in his grave. Justice Sotomayor, the Court's newest member and President Obama's sole appointee thus far, authored the dissenting opinion, pointing out where the majority, led by Justice Kennedy, erred in upholding the trial court. Sotomayor writes that under the majority's decision, "a suspect who wishes to guard his right to remain silent against a finding of 'waiver' must, counterintuitively, speak - and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police." This, argues the dissent, bodes poorly for the fundamental principles that Miranda protects, and ignores the important interests that Miranda safeguards. Sotomayor was most likely correct in her prediction that the majority's ruling will invite even lengthier police interrogations, because police will now question a suspect at length despite his persistent refusal to answer questions, in the hope of eventually obtaining a single inculpatory response which will suffice to prove waiver of rights. Certainly, this is not how the framers intended our legal system to operate. This Court, and any judge for that matter, must be ever mindful that a departure from established precedent indeed creates new precedent, and by doing so defeats the purpose of precedence in the law. In Thompkins, the Court snubs the protections of Miranda and instead empowers relentless and questionable police misconduct. One can only hope that this ruling is revisited and ultimately corrected. Read the Court's majority decision and dissenting opinion here:

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