In our previous post, we discussed the right to remain silent, when it applies, what law enforcement must do, and what might happen if they don't.

In this post, we'll discuss HOW the right to remain silent is used.

Now, some might ask, “it's a right, why does someone have to do anything to use it?” – and, it's a really good question.

The answer is, because the United States Supreme Court says so! In 2010, the Court addressed the issue of whether a defendant's 5^th Amendment rights were violated when, after reading him the Miranda warning, law enforcement continued to question him despite his continuing silence for nearly 3 hours in response. Berghuis v. Thompkins, 560 U.S. 370 (2010). However, after a period of time, the defendant responded to the officers' questions and provided an incriminating statement which was subsequently used against him at trial.

The defense argued that, because he remained silent for that long, it was clear he had invoked his right to remain silent and that law enforcement should have stopped questioning him. The Supreme Court disagreed, however, and held that there “is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously.” Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S. Ct. 2250, 2260 (2010). What this means is the Supreme Court requires individuals to affirmatively, and explicitly, tell law enforcement they are invoking their right to remain silent.

The Court justified this position by stating having a “requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that ‘avoid[s] difficulties of proof and … provide[s] guide to officers' on how to proceed in the face of ambiguity.” Berghuis v. Thompkins, 560 U.S. 370, 381-82, 130 S. Ct. 2250, 2260 (2010).

In conclusion, the Court stated that the defendant could either have (1) told officers explicitly that he wanted to remain silent, or (2) that he did not want to talk to police to end the questioning and invoke his right to silence. Berghuis v. Thompkins, 560 U.S. 370, 381-82, 130 S. Ct. 2250, 2260 (2010).

In sum, the Supreme Court requires individuals to speak up and explicitly invoke their right to silence, otherwise officers are generally free to continue questioning and any statements given by a suspect can be used in court against them.

The “right to counsel” (an attorney) is also part of the 5^th Amendment right, and similarly requires an unambiguous invocation to make sure that right is protected. However, like pretty much everything legal, it depends on the individual facts and circumstances of each case, and there are quite often exceptions to the rule. The law is complex and can be confusing. However, if you're facing a charge, you don't have to face it alone – contact Peterson Legal today for a free case consultation!