Maryland Criminal Attorney reviews Miranda decision by Supreme Court. In its recent decision in Berghuis v. Thompkins the Supreme Court, in what some view as a paradoxical ruling, ruled that a defendant must affirmatively invoke his right to remain silent or his right to an attorney after being advised of his Miranda Rights. In other words, the Court ruled that a defendant must speak in order to invoke his right not to speak.
In this case, Thomkins was arrested for murder. He was taken into custody and read the Miranda Rights that are familiar to most all of us who have ever seen an episode of Law and Order. After being advised of his right to remain silent, Thomkins did just that; he remained silent throughout almost 3 hours of questioning by the detective. The detective finally broke Thomkins’ silence by asking him if he prayed to God to which he replied that he did. The Detective then asked him if he prayed to God for forgiveness for shooting the victim in this case and Thompkins answered in the affirmative.
The statement was introduced against Thomkins at trial over his counsel’s objection and he was convicted of murder. In yet another 5-4 ruling by the Roberts Court, the Conservative wing of the court upheld the conviction and ruled that a defendant must affirmatively invoke the right to remain silent. Justice Sonya Sotomayor wrote the dissent and noted that ” Criminal Suspects must now unambiguously invoke their right to remain silent – which counter-intuitively requires them to speak”. She went on to note that this ruling inescapably leads to the conclusion that a “suspect will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so’.
This ruling further confuses an area of the law that is almost universally misunderstood by criminal defendants. As a Maryland Criminal Defense Attorney I am often confronted with clients who were not read their so called Miranda Rights. Almost to a person my clients know what their rights are but few understand when the police are required to read them or what the consequences are if they fail to do so. Many of these clients wrongly believe that if they were not read their rights upon their arrest, as the detectives invariably do on television crime dramas, that this creates a defense to the charges for which they are arrested. It does not.
The widely misunderstood rule is actually quite simple. The police must read a person his or her rights if and only if that person is: 1. in custody and 2. being interrogated by the police. In many if not most cases, the police do not interrogate people that they arrest. They may ask them questions while investigating the crime but in most instances these interviews do not require Miranda because the person being questioned is not in custody during the questioning. In most routine arrests, a custodial interrogation is never done so Miranda is not required. Having said all that, nothing in this decision changes the Golden Rule of dealing with the police whether or not Miranda is implicated and that is once in custody ( and in most cases even before being placed into custody) the only thing a criminal defendant should say to the police is “I want my lawyer”.