Florida Law and the Impact of Berghuis v. Thompkins, 130 S.Ct. 48 (2009) - Limits on Miranda Rights

The Supreme Court just announced a new ruling that changes the rules for Miranda warnings. The officers usually read the Miranda warnings and then ask "with these rights in mind do you wish to speak with me?"

If you want to invoke Miranda, the new ruling requires you to tell the officers that you want to invoke your rights. In order words, to invoke your right to remain silent you must break your silence and speak. Otherwise, the police can continue to interrogate you.

The new decision on Miranda will certainly change the tactics the police use when they interrogate a suspect who has neither explicitly invoked nor explicitly waived the Miranda rights.

In Berghuis v. Thompkins, the United States Supreme Court ruled 5-4 that a suspect has to speak the "magic words" in order to actually assert the right to remain silent. In that case, Van Chester Thompkins was given his Miranda warnings. For the most part, he then remained silent for nearly three hours. During those three houses, various officers continued to ask him questions and tricked him into breaking his silence.

How did they get him to talk? One of the law enforcement officers asked him whether he believed in and prayed to God. Then the officer asked him whether he asked God for forgiveness for “shooting that boy down.” Thompkins replied, “Yes.” The other evidence in the case must have been less than overwhelming because another jury had acquitted his alleged accomplice at a trial that had taken place prior to Thompkins being picked up on the warrant.

That evidence alone may have been responsible for first degree "guilty" verdict. Also, the fact that he sat there for three hours refusing to answer questions certainly didn't help his case. Had he invoked his right to remain silent, the verdict may have been different because what happened during those three hours and the words he eventually spoke couldn't have been used against him.

It remains me of "the quiet game" we played as kids. Once someone says "quiet" everyone has to stop speaking and the first person to speak loses the game by saying something. Eventually, everyone loses that game.

The Miranda warnings provide a short cut to winning the game. When you say, "I invoke my right to remain silent until after I speak with an attorney" - the game is over. As long as you continue to remain silent, nothing that you do to invoke your rights can ever be used against you.

Why should you invoke your right to remain silent? From the perspective of a criminal defense attorney, it is fail-safe way to make sure that nothing you say can ever be used against you at trial. Do you really want an officer to tell the jury about your gesture, shrug or nod? Do you want the officer to be the sole witness who can use your statement to gain probable cause to arrest you or issue a warrant to search your home or property? Do you want the officer to be able to twist your words or misinterpret something you say?

The best part about invoking your right to remain silent is that the fact you invoked your rights can never be used against you. The fact that you tell the officer - "I want to remain silent. I will not speak to you about anything until after I talk with an attorney." Then you must actually remain silent. Better yet, remain silent and still.

Once you invoke your Miranda rights to remain silent and your right to counsel, the fact that you used those magic words can never be used against you. The jury can never be told that you invoked your right to remain silent or asked to speak to an attorney. The fact that you invoked your Miranda rights cannot be used to establish probable cause for your arrest, or as grounds to obtain a search warrant.

Even if the officers make you sit there silently for hours, the fact that you sat there and refused to speak cannot be used against you. If the officers continue to question you, continue to remain silent. If you must say something, say it again "I am invoking my right to remain silent until after I speak with an attorney."

Many people instinctively think that they can talk their way out of anything. Sometimes it works and sometimes it doesn't. But when you are facing criminal charges - anything from DUI to shoplifting to domestic violence to more serious felony offenses - just say the magic words and then remain silent and still.

Then talk to your criminal defense attorney before you talk to anyone about the facts of the case.

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