You Now Have To Ask For Your Right To Remain Silent

“Criminal suspects must now unambiguously invoke their right to remain silent – which counterintuitively requires them to speak,” she said. “At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.”

-Supreme Court Justice Sonia Sotomayor (June 1, 2010)

Full Story – HERE

Interesting…

15 COMMENTS

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El Duderino June 1, 2010 at 08:01 pm

“Don’t interrogate me bro!”

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Admin (Mike) June 3, 2010 at 10:24 pm

haha it should be a requirement to ask the question in that fashion.

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Aleksandr Mravinsky June 2, 2010 at 12:09 am

I think this ruling makes sense. If a suspect is being interrogated but does not answer questions, it can’t be determined by the officers whether they are invoking a right to remain silent or simply do not want to answer that particular question.

But even if you do invoke your right to remain silent, does that mean that the police cannot ask any more questions? Or does it mean that anything you say cannot be used against you? I fail to see how invoking the right to remain silent would have helped the man who started the case. If he was questioned for hours and then said something to implicate himself, then what does it matter if he invoked his right to remain silent? He answered their question, which would seem to void his right to remain silent.

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cavalier June 2, 2010 at 08:40 am

If you are detained for questioning and declare you are not talking then they have no reason to hold you. They must charge you for a crime or let or go (but more likely they’ll try and trick you in to talking). It would be like not allowing them in your house so they knock every five minutes to ask again.

Amusingly, the majority opinion are the same folks who ruled in favor of Heller.

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Aleksandr Mravinsky June 2, 2010 at 06:30 pm

I don’t agree with comparing this to not letting the police into your house. When you don’t let the police into your house, you usually say something like, “I do not consent to any unwarranted searches or seizures,” before closing the door on them (if you say anything at all). Just not saying anything would seem more akin to standing in the doorway without closing the door or letting them in. Neither a yes nor a no.

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Josh June 2, 2010 at 09:42 am

“But even if you do invoke your right to remain silent, does that mean that the police cannot ask any more questions? Or does it mean that anything you say cannot be used against you?”

It’s effectively the same thing. Police stop the questioning because they know that anything obtained by the questioning is “fruit from the poison tree.” Police could hypothetically continue to question someone if they needed time-sensitive information and were not concerned with evidence obtained by questioning being used against that person. But, if they want to gather information to use against the person they’re questioning, they better stop as soon as the suspect asks for a lawyer.

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Admin (Mike) June 3, 2010 at 10:27 pm

But, if they want to gather information to use against the person they’re questioning, they better stop as soon as the suspect asks for a lawyer.

heh yea stop questioning and start the beating! (Hopefully not. But I’m sure it happens)

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Jerome Kavanaugh June 2, 2010 at 08:51 am

No offense folks – been a police officer 29 year at the end of October… we’ve ALWAYS asked this after reading their rights. It’s only way to make certain they’re listening so it won’t bite you in court later on

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Josh June 2, 2010 at 09:37 am

Of course you’re always asked, but not required to respond. You can’t force someone to answer something. A suspect could conceivably remain silent, choosing to exercise that right and not say anything AT ALL, even to indicate he understood his rights.

This is just saying that even an extended period of silence or unwillingness to answer any questions is not to be construed as an invocation of the right to remain silent.

I’m not in law enforcement, so feel free to respond if I’m wrong or if you’d like to add anything else, but generally at the end of a Miranda warning is something to the effect – “do you wish to waive these rights and talk to us?” Answering yes was an obvious indication that the suspect wished to waive his rights and could be questioned without an attorney. Saying no, or not saying anything, would be an indication that he was exercising his right to remain silent and not be questioned without counsel.

This now says that a refusal to answer is not enough to indicate that the suspect wishes to exercise his right to counsel, and that unless he actually says “no, I do not waive my rights,” or, “I want a lawyer before I talk,” police can continue to question until he does so.

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Admin (Mike) June 3, 2010 at 10:28 pm

If you are not recording anything, isn’t it you word against theirs anyway? I can’t see the judge siding with some criminal on his 3rd strike over a police officer with a squeaky clean record.

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Travis June 2, 2010 at 07:56 pm

I see this like the telemarketers. They keep calling, and you hang up, and they can call again. But if you TELL them to stop, they have to. This is good for everyone, so no one has to guess. You can invoke your right but saying as much: “I refuse to answer any questions”, or just staying SILENT. If the cops are asking questions and you are answering, like the guy in the original case, then OBVIOUSLY, that was not silent. They can’t make you talk. Period.

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Admin (Mike) June 3, 2010 at 10:33 pm

Having known people that worked at call centers, if someone they called was rude to them and swore at them to take their number off the list… they would just hit the button that said “no answer” so another telemarketer would just call back later and bug the person again.

They can’t make you talk. Period.

I hate to be negative, but if the police will beat the shit out of someone in public with thousands of people with cameras (cellphone and otherwise) in the vicinity, why do you think they would not beat information or a confession out of a suspect in the privacy of an interrogation room? Something to consider.

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Judythe Minale October 26, 2010 at 12:38 pm

Why not just say, “I would like to have an attorney and I refuse to answer any questions, until my attorney is present.” Please tell me one reason why this is not the best approach in EVERY situation?

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Admin (Mike) October 27, 2010 at 10:52 pm

Seems like a good approach to me. I’ve watched enough “First 48” and other cop shows to see that apparently no one does that though. :P

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