This summer (June) the United States Supreme Court (USSC) issued a ruling contrary to the longstanding belief that, silence by an accused who informed and warned of the right to remain silent was an obvious invocation of the right. The case is BERGHUIS v. THOMPKINS. Traditionally, a person’s silence after being informed of their rights, specifically the right to remain silent made it very obvious that they were exercising that right. The new ruling by the USSC has changed that and a person must now speak up to actually invoke the right.
The facts of the case were that the defendant was being interrogated by police for over 3 hours and during the interrogation he remained silent until near the end of the ordeal when he was asked if he prayed to God to forgive him for the shooting that he was being interrogated about. He provided the single word answer of “yes.” This answer is classic example of using the person’s words against them and why defense attorneys always advise to actually use the right.
The rule on the right to remain silent comes from the landmark case of Miranda v. Arizona. In that 1966 case the USSC fashioned a rule requiring a person who was in custody to be warned in the following manner:
You have the right to remain silent; Anything you say can and will be used against you in a court of law; You have a right to talk to a lawyer before answering any questions and you have the right to have a lawyer present with you while you are answering any questions; If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one; You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.
The warnings are very clear and it has always been the case that a person’s silence in the face of interrogation indicated they did not want to answer any questions. In Thomkins case, Officers began an interrogation after the warnings were given. At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. Traditionally, when the right was invoked the police were required to end the interrogation, but according to the Supreme Court the failure to actually speak up and say that the right to silence was being invoked, the interview did not have to end. Having found no invocation, the court did not need to analyze whether there was a waiver of the previously non-invoked right, but since the two issues are tied the high court decided to take the opportunity to address the issue and highlighted the rule that that states that:
As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford. . . . Thompkins waived his right to remain silent. There is no basis in this case to conclude that he did not understand his rights; and on these facts it follows that he chose not to invoke or rely on those rights when he did speak. First, there is no contention that Thompkins did not understand his rights; and from this it follows that he knew what he gave up when he spoke.
Therefore by virtue of these facts and the single word answer given nearly 3 hours into an custodial police interview the answer given by Thomkins was admissible in a trial. In fact, the Court specifically wrote: “The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver. Police are not required to rewarn suspects from time to time.” Consequently, this case serves as an example of why the right to silence is so very important as well as a case that appears to erode a longstanding common sense approach to this issue.
Fortunately, this is a case that may not affect the citizens of Washington State, because this is a Federal Constitutional right and the State Constitution of Washington provides a greater level of protection to citizens enduring a custodial interrogation. Washington case law is full of this exact situation and the State Supreme Court has consistently found that silence in the face of interrogation is indeed, an invocation of the right and questioning must cease and if is does not, any answer is not admissible UNLESS the officer clarifies the fact that that the person wishes to waive that right. Despite this greater protection the safest course of action is to invoke the right or invoke the right by invoking another important right that automatically invokes the right to silence: The right to a lawyer. The only right a person needs to remember is the right to a lawyer because once that is done the police MUST provide access to a lawyer and CANNOT ask any questions. The Miranda warnings have been altered a little bit since the 1966 decision and also inform a person that anything they say can and WILL be used against them. It never ceases to amaze me the types of things that the government attorneys (prosecutors) seek to use pursuant to a waiver of the right under that warning.
In a DUI prosecution and trial the government attorneys will try and admit the custodial interview done on those arrested who do not invoke their right to silence or an attorney. In a DUI case the answers to the questions may not appear incriminating, and some are not, but what they do eliminate possible defenses regardless of how innocent the questions appear. If you disagree, have a look at the form and ask yourself, why would the WSP create a form with these specific questions? Because “ANYTHING” you say CAN and WILL be used against you.
DUI is not a crime where a person is going to endure hours of interrogation by police as Mr. Thomskins did, but there is in fact a interrogation that they soften by calling it “Interview” but there is no hiding the fact that it takes place in a controlled environment where the person is NOT free to leave, and cannot leave until the officer says so. As a result, this ruling from the USSC on this issue of silence is one that is important and signals perhaps the pendulum insofar as an accused person’s rights swinging out of their favor.
DUI is not a simple charge. Defense of the charge is not to be taken lightly nor is it for the inexperienced, or even an average lawyer. Rather is requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. The right to remain silent is an important right that effects each and every DUI case, and a right that exists from the moment a driver is stopped, or seized by law enforcement.