• You Have The Right To Remain Silent...If You Speak Up
  • March 8, 2012
  • Law Firm: Kevin L. Collins P.C. - San Antonio Office
  • Ask anyone what Miranda rights are, and you will almost certainly get the same response every time: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you...” 

    In a country where ignorance of the law, although widespread, is no excuse, it is surprising how many people know they have these rights. What might really surprise these people, however, is that the rights they know so well have recently undergone substantial changes.

    It has been 45 years since the U.S. Supreme Court ruled upon the landmark case of Miranda v. Arizona. In Miranda, the court held that a person taken into custody by law enforcement must be informed of his or her right to remain silent prior to any interrogation. 

    Not only must the person in custody be informed of his or her rights, but he or she must also understand these rights and the consequences of waiving them.

    A major effect of Miranda was to protect the fifth and sixth Amendment rights of the arrestee by placing the burden of proving whether an arrestee waived his or her Miranda rights on law enforcement and prosecutors.

    This was a “heavy burden” requiring the prosecution to demonstrate that the defendant “knowingly and intelligently” waived these rights. But in June 2010, a 5-4 Supreme Court ruling made that “heavy burden” a whole lot lighter.    

    In Berghuis v. Thompkins, the criminal suspect sat silently for nearly three hours while being interrogated by police. Two hours and 45 minutes into the interrogation, he uttered a one-word response:

    Officer: “Do you pray to God?”

    Defendant: “Yes.”

    Officer: “Do you pray to God to forgive you for shooting that boy down?”  

    Defendant: “Yes.”

    The prosecution was allowed to use the one-word response in trial over the objection of the defendant, and the defendant was subsequently convicted of first-degree murder. 

    The defendant’s lawyers argued that the defendant invoked his right to remain silent by sitting silently for nearly three hours. 

    The Supreme Court ruled that an accused individual who wants to invoke his or her right to remain silent must do so unambiguously by actually speaking up and requesting the right. 

    The ruling in Berghuis effectively takes the burden from the police and prosecutors and puts it on the accused. As Justice Sotomayor states in her dissent, “The court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of ‘waiver’ must, counter-intuitively, speak - and must do so with sufficient precision to satisfy a clear statement rule that construes ambiguity in favor of the police.”

    In Miranda, the court ruled that, “If an individual indicates in any manner ... that he wishes to remain silent ... the interrogation must cease.”

    The Miranda court additionally protected the accused by stipulating that the absence of an attorney at the time the statement is taken from the accused places a heavy burden on the government to prove that the defendant “knowingly and intelligently” waived his or her rights. 

    Finally, and quite relevantly, the Miranda court expressed in its opinion that a lengthy interrogation before a statement is made is evidence that the accused did not validly waive these rights.

    As many in the legal field will tell you, the law is fluid and constantly undergoing change. Unfortunately, the majority of the general public who are familiar with their rights as stated by Miranda do not know this or do not keep up with the changes.

    It is important as U.S. citizens to help each other out and keep each other informed. So during this 45th anniversary of Miranda, remember: Speak up! And ask others if they really know their Miranda rights.

    Kevin L. Collins is a San Antonio criminal defense lawyer and a former prosecutor. He is board certified in criminal law and juvenile law by the Texas Board of Legal Specialization, and he is a member of the Juvenile Council of the Texas Bar Association. For more information, please visit www.kevincollinslaw.com, or call 210-223-9480.