Many of us are familiar with the warning that you have the right to remain silent. It stems from your Fifth Amendment protections and a police officer has to use the form of words if you are arrested.
However, it’s worth noting that not saying anything may not be sufficient to invoke your right to silence. You have to verbalize it.
The right to remain silent derives from the famous case of Miranda v. Arizona in 1966. The case held that police must advise arrested suspects of certain rights, including the option of saying nothing at all.
Police officers must invoke Miranda warnings any time they interrogate a suspect who is in custody. The term “interrogation” includes direct questioning as well as any words or actions on the behalf of police officers that they are aware could provoke an incriminating response.
Recent cases suggest a suspect must unambiguously assert his or her right to silence to be afforded protection.
U.S. Supreme Court Rules the Right to Silence Should be Clearly Invoked
In the 2010 case of Berghuis v. Thompkins, the U.S. Supreme Court made it clear that remaining quiet may not be sufficient to invoke your right to silence.
Van Chester Thompkins, a capital murder suspect, refused to sign an acknowledgement that he had been informed of his Miranda rights and seldom made eye contact with the officer throughout a three hour interview.
The Michigan case went all the way to the U.S. Supreme Court. The justices reversed the Sixth Circuit decision backing the state court’s decision that the rejection of Thompkins’ Miranda claim was correct. The Supreme Court ruled Thompkins failed to invoke his Miranda rights to remain silent and to legal counsel because he failed to do so “unambiguously.”
In other words, the act of remaining silent on its own was not sufficient to invoke the Fifth Amendment right to remain silent.
In the case of Salinas v. Texas, the U.S. Supreme Court made it clear a suspect should verbalize his or her right to remain silent.
Salinas agreed to go to the police station to discuss a homicide in Houston. He was not arrested and was not read his Miranda rights. He answered every question until officers asked him if shotgun shells found at the crime scene would match a gun at his home. He fell silent and police officers became suspicious.
He was later found guilty of murder. The Supreme Court ruled he had not invoked his right to silence because he did not say anything in response to the question. It must be verbally invoked.
If you are arrested for any crime you should be wary of what you say to police officers. Gary Medlin has worked in criminal practice for more than 32 years. It makes sense to call an experienced Fort Worth criminal defense attorney from the outset to avoid falling into the traps investigators will set you. Call us at (682) 204-4066.