The Right to Remain Silent


We don’t handle criminal cases in our practice, but I have kids. And like many parents of teens and young adults, I know run-ins with the police happen. When they do, my advice has always been simple. Do not ever give a statement without an attorney present. You have the right to remain silent. Do it.

A right to remain silent and a right to a have an attorney present during questioning are the first of the Miranda rights warnings, which police recite to suspects during arrests and interrogations.

A recent ruling by the Supreme Court now says that just being silent isn’t enough. If you want to remain silent, you must say so.

The justices said in a 5-4 decision issued on June 1, 2010, that suspects must tell police they are going to remain silent to stop an interrogation, just as they must tell police that they want a lawyer.

The ruling comes in a case where a suspect remained mostly silent for a three-hour police interrogation before implicating himself in a January 2000 murder. He appealed his conviction, saying that he invoked his Miranda right to remain silent by remaining silent. But Justice Anthony Kennedy, writing the decision for the court’s conservatives, said that wasn’t enough.

“(He) did not say that he wanted to remain silent or that he did not want to talk to police,” Kennedy said. “Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent.”

The officers in the room said the suspect said little during the three-hour interrogation, occasionally answering “yes,” “no,” “I don’t know,” nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for “shooting that boy down,” he answered, “Yes.”

He was convicted, and on appeal he wanted that statement thrown out because he said he invoked his Miranda rights by being uncommunicative with the interrogating officers. The Cincinnati-based appeals court agreed and threw out his confession and conviction. The Supreme Court reversed that decision.

The moral of the story is this: If you find yourself being interrogated by the police, no matter what the circumstances, my advice has always been the same. Do not talk to them. Now I am amending that advice. Do not talk to the police except to tell them you are exercising your right to remain silent. Then contact a good criminal attorney.

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