Wednesday, June 2, 2010

Chicago Criminal Attorney says there won't be a Happy Birthday Celebration next week for Miranda

This Chicago Criminal Attorney has posted here on the 50th anniversary of the Miranda warnings.  June 13th would've been the 51st Anniversary of the Arizona v. Miranda decision.  It looks like it’s a good thing that Law and Order is ending because the Miranda Warnings have been fundamentally changed by the United States Supreme Court.

Here are the Miranda Warnings:

1. Do you understand that you have a right to remain silent?
2. Do you understand that anything you say can and may be used against you in a court or other proceeding?
3. Do you understand that you have a right to talk to a lawyer before we ask you any questions, and to have him/her with you during questioning?
4. If you cannot afford or otherwise obtain a lawyer and you want one, a lawyer will be appointed for you, and we will not ask any questions until s/he has been appointed.
5. If you decide to answer now with or without a lawyer, you still have the right to stop questioning at any time, or to stop the questioning for the purpose of consulting a lawyer.
6. Do you understand each of these rights?
7. Do you wish to answer questions at this time?

So what changed?  Well there was a question about what constitutes a right to remain silence.   You know have to break that right of silence in order to be privy to it.

 (a) Thompkins’ silence during the interrogation did not invoke his right to remain silent. A suspect’s Miranda right to counsel must be invoked “unambiguously.” Davis v. United States, 512 U. S. 452,
459. If the accused makes an “ambiguous or equivocal” statement or no statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused’s intent, id., at 461–462. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. The unambiguous invocation requirement results in an objective inquiry that “avoid[s] difficulties of proof and . . . provide[s] guidance to officers” on how to proceed in the face of ambiguity. Davis, supra, at 458–459. Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning. He did neither. Pp. 8–10.

 Yes.  It is tortured reading that one will have to break a silence in order to claim a right to silence.  Alas, what else is a citizen going to do when faced with the all of the resources of the government in the form of the police?

1)       Ask for a lawyer and
2)       Invoke your right to silence by telling the government you don’t wish to speak to them.

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