You Have A Right To Remain Silent, But First You Must…Speak?

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!


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About Matthew McKinney

Attorney focused on civil and commercial litigation.
This entry was posted in Criminal Law, Litigation and tagged , , , , , , . Bookmark the permalink.

One Response to You Have A Right To Remain Silent, But First You Must…Speak?

  1. Pingback: A Director’s Duty to Remain Silent | Business and Corporate Disputes

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