While these articles are primarily focused on business and corporate disputes, every so often an important issue is raised that everyone should be aware of. Here’s to hoping neither you nor your business is in a position to put the information in this article to use; but if so, just remember, it’s time to reconsider how closely you listen to and follow a Miranda Warning.
On Tuesday, June 1, 2010, the United States Supreme Court handed down an important opinion in Berghuis, Warden v. Thompkins. The opinion addresses an arrestee’s right to remain silent. While the majority opinion is 19 pages in length (and can be found here), in summary, the opinion provides that if you wish to guard/protect your right to remain silent, believe it or not, you must first speak up and clearly assert the right – if you fail to do so and make any other statements your right is waived.
As a former prosecutor, I am abundantly familiar with the typical “Miranda Warnings,” which generally consists of four warnings and two questions: (1) You have the right to remain silent; (2) Anything you say can and will be used against you in a court of law; (3) You have the right to an attorney; (4) If you cannot afford an attorney, one will be appointed to you. The two questions are: (1) Do you understand these rights as they have been read to you?; and (2) Do you waive these rights?
The general rule is that if you do not first knowingly and voluntarily waive your Miranda rights (question 2 above) then any statement you make to an officer in response to a question will be “suppressed” (thrown out and cannot be used against you at trial no matter how incriminating). Based upon the decision in Thompkins, however, if you fail to affirmatively assert your right to remain silent (perhaps because you followed the first warning too literally and remained silent) and you make any other statement(s), your other statement(s) will amount to an automatic waiver and can be used against you at trial.
In short, to protect / guard your right to remain silent or to end an interrogation, you must now speak up and assert the right!
Matthew McKinney, as owner and host of this site, cannot and does not warrant the accuracy or reliability of the information presented on or through this site. The information on this website does not constitute legal advice and readers should not rely on it to solve problems; Further, you should seek licensed counsel before taking any action. Any information provided on this site is presented “As Is” for your personal curiosity and enjoyment. It is not meant to be relied upon for legal advice, counsel, or for any other purposes. Such information does not take the place of a lawyer. Rules and laws differ by jurisdiction and the information contained within this website may not apply in your jurisdiction. The appearance of articles, listings, or ads, by or for professionals, on this site, does not constitute an endorsement. In all cases, you are responsible for determining the quality of services, information, and/or advice provided by professionals through, or as a consequence of, your use of this site. Neither Liability nor responsibility shall arise to any person or entity with respect to loss or damage caused (or alleged to be caused), directly or indirectly, by information posted on this website, or by reason of contact with a professional listed on, or posting information to, this site. No attorney-client relationship is formed by viewing this website and practice is limited to jurisdiction where lawyers are admitted. The information furnished on the website is only general and not a substitute for personalized legal advice. Legal advice cannot be given without full consideration of all relevant information relating to the individual(s) situation. Laws can change daily and new laws may, and likely will, affect the accuracy of the information herein. The information herein may be outdated and replaced by new law.
If you are seeking representation, please read the following notice before sending an e-mail:
Sending an e-mail will not make you a client. Until an agreement regarding representation is reached with you, anything you send will not be confidential or privileged. Before representation can occur, a lawyer will first take you through the conflict of interest procedure and see that you are put in touch with the lawyer best suited to handle your matter.
If you proceed with an e-mail, you confirm that you have read and understood this notice.