In the seminal case Berghuis versus Warden , the United States Supreme Court issued major changes affecting the invocation of Miranda rights. Specifically, the Supreme court led by Justice Kennedy ruled that a defendant must clearly invoke their right to remain silent ie. their Fifth Amendment right against self-incrimination. In the past, an accused could stay silent and this was enough to invoke the right to remain silent. No more…
Under the facts of Berghuis, the Court ruled that the defendant had to explicitly and unequivocally state to the arresting officers that he was invoking his right to remain silent. By NOT expressly invoking his right to remain silent, in effect the Supreme Court ruled that the accused was WAIVING his right to remain silent.
According to the facts, an accused Michigan man sat for three (3) hours in silence while officers interrogated him and then confessed to a murder. The question was whether the defendant’s silence constituted an invocation of the right to remain silent, such that the confession was inadmissible. The Supreme Court ruled that under such circumstances, it would have been impossible for the officers to have determined whether the accused was invoking his Miranda rights. Since the Michigan man seemed to indicate his understanding of his right to remain silent and the officers did not coerce his confession, then in effect the accused waived his right to remain silent by making statements during the interrogation.
The question is ultimately whether sitting in silence for three hours under questioning by the police offers a clear message that the suspect did not wish to waive his rights. Under this Supreme Court decision, the answer is NO. The decision in this case has been criticized heavily. In order for criminal suspects to invoke their right to remain silent, they must speak, which runs counterintuitive to the “right to remain silent”. Even more disturbing is the idea that suspects will have presumed their right to remain silent, even if they do expressly indicate their intention to waive the right to remain silent.
What does this mean for San Antonio and greater Bexar County Criminal Defense cases ? Essentially, you must clearly state to arresting officers of your wish to remain silent by saying something to the effect of “I am exercising my right to remain silent”. It must be clearly stated from the BEGINNING – otherwise, a criminal defendant runs the risk of waiving his right to remain silent by making additional statements. This blog entry supplements our earlier blog entries, where we indicated suspects should SHUT UP under questioning.
See the following entries:
The WRONG Way to Handle a Police Stop in San Antonio Texas and Bexar County
What to Do on a Police Stop in San Antonio Texas and Bexar County
10 Rules for Dealing with Police in San Antonio Texas and Bexar County
Now, criminal defendants are encouraged to clearly state that they are exercising their right to remain silent and then SHUT UP. If you have any questions about the exercise of your constitutional Miranda rights, you should contact a San Antonio Criminal Defense Lawyer without delay !