A group of us were sitting around the table at a truck stop discussing whether or not we have to speak with cops or if we can remain silent. There was much talk about our right to remain silent and get a lawyer. Can you give us some information of our right to remain silent?
Jeff, Ohio
Chief Justice Earl Warren in Miranda v. Arizona, 384 U.S. 436 (1966), opened the case with the following sentence: “The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence; the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime.”
Miranda resulted in the famous Miranda Rights you see on TV or in the movies when the cops arrest a person for a crime. You know the standard speil: “You have a right to remain silent; anything you say can be used against you in a court of law; you have the right to an attorney; if you cannot afford an attorney, one will be appointed for you”. But you probably have not heard the following two additional parts of Miranda because of the TV time needed: “you can invoke your right to silence before or during an interrogation, and if you do so, the interrogation must stop; you can invoke your right to have an attorney present, and until your attorney is present, the interrogation must stop”.
Several states have included in their right to remain silent statement the “do you understand these rights as they have been read to you”? Most states will then have the suspect sign the document to prove to the court the suspect did or did not waive their rights. Your Miranda rights can be waived when you sign a waiver or if you start speaking after you have been read your rights. However, the suspect can initiate or reinitiate his Miranda rights at any time by telling the officers he wants to remain silent or he wants his lawyer now. At that point the interrogation must stop.
The Supreme Court revisited Miranda in 2010 with two separate cases, Maryland v. Shatzer, (2010) No. 08-680 decided 2/24/2010 and Berghuis, Warden v. Thompkins, (2010) 08-1470 decided 6/1/2010 where they held that Tompkins’s silence during the interrogation did not invoke his right to remain silent stating the suspect’s right to counsel must be invoked “unambiguously”.
Tompkins refused to sign acknowledgment of his Miranda rights, then made statements that were used against him in his conviction. The Court ruled the burden was on the suspect to invoke his Miranda rights and his failure to sign the acknowledgment actually waived his right to remain silent when he knowingly and voluntarily made a statement to police.
The Court held in the other case that because Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at interrogation and his invocation of his rights had expired. His Miranda rights expired when he was released and over two weeks later a different officer interrogated him. Miranda requires that he would need to unambiguously assert his right to silence again.
Two rules apply before police are required to issue Miranda Warnings: (1) the suspect must be in police custody and (2) the suspect is under interrogation. So what is ‘police custody’? It is usually defined as anytime the police deprive you of your freedom to walk away, an example would be if you are arrested. If the officer just asks you questions during a normal traffic stop (the time a reasonable person would consider a traffic stop to be normal) then you are not in custody. Police interrogation is considered when the officers begin asking questions that may implicate you in a crime. Therefore, the Miranda warning must come before you are being interrogated.
Keep in mind a request for identification is generally not considered interrogation nor are you in police custody because of the officer requesting your identity. Usually, you MUST ALWAYS give a police officer your identity and identification papers such as driver’s license.
The days of hitting suspects with phone books to get them to talk are long gone. The police may not use physical or psychological intimidation to get the suspect to talk. Long interrogations, sleep deprivation and the like render the suspect’s statement inadmissible in court.
The best advice anyone can get when they are arrested is provide their identification and ask for an attorney. Any question you are asked after that should be answered with “I want my attorney now!” Do not waive your rights by starting talking, stick with “I want my attorney now!”