Practical Application of the Recent USSC Decision on the Right to Silence

[George Costanza]

Remember the Miranda case that came out four months ago - the one that required the suspect to actually invoke his right to silence or he would not be able to claim it? That case was Burghuis v. Thompkins 130 S.C. 2250. It was decided in June of this year.

In Burghuis, the defendant was advised of his Miranda rights. He was then interrogated for three hours or so. He rarely spoke during the questioning and, when he did, it was only to say "yes" or "no" to meaningless questions. Then, at the very end of the questioning, the detective asked him if he believed in God. He said he did. The detective asked him if he prayed. The defendant said he did. The dectective then asked him if he prayed to God to forgive him for doing the shooting. The defendant said he did.

At trial, the defense sought to keep the defendant's confession out on the grounds that he had invoked his right to silence by actually being silent throughout the entire, three-hour interview up until he finally broke his silence by answering the question about praying for forgiveness in connection with the shooting.

The Supremes ruled that, since the defendant did not actually SAY he wanted to remain silent, he had not properly invoked the right and had, in fact, waived it. His admission was allowed to stand.

OK - I have a case right now with the following facts: The defendant is a 16-year-old youth, charged with robbery. They are proceeding against him in adult court under a procedure knows as "direct filing." The following is an exact quote from the detective's report: "Prior to transporting (the defendant) I read him his Miranda rights. The defendant said he understood each of the questions and agreed to speak to me without an attorney present. After reading the Miranda rights, I asked him if he wanted to talk to me regarding the robbery case. He said, 'I got nothing to say to you.' I then asked him if he was from (the gang in question) at the time he committed the robbery. He said, 'Yeah, but I don't hang out with them no more.'"

Interesting, wouldn't you think? A number of issues pop out immediately. Here, as opposed to Burghuis, the defendant clearly invoked his right to silence in no uncertain terms. "I got nothing to say to you." The fact that this was the first thing he said after agreeing to speak with the detective means nothing. Once a suspect invokes, game over. "All questioning must cease," per the Miranda decision.

And yet, the cop just continues blithly along, totally ignoring the invocation of the right to silence, and gets a full confession out of the suspect.

On October 19th, I will be attempting to keep the confession out at preliminary hearing. I think it is a slam dunk - but we will be in front of a notoriously prosecution minded judge who never saw a defense motion he ever liked. I still think we should win, but have the odds at about 50-50 at this point.

I am putting this up because I thought some of you might be interested to know that this abstract stuff we argue about here, actually has practical application in the real world. I would be interested to hear thoughts or comments. And I will be sure to come back on here after the 19th to let you all know how it came out.

 

[ConHog]

I think it's funny that you cry about a judge who has never seen a defendant's motion that he likes...

 

[jillian]

I am putting this up because I thought some of you might be interested to know that this abstract stuff we argue about here, actually has practical application in the real world. I would be interested to hear thoughts or comments. And I will be sure to come back on here after the 19th to let you all know how it came out.

good luck with your case.

i think people are very cavaier about the 5th and 4th amendments because they think that only bad guys are impacted by those things.

 

[George Costanza]

I am putting this up because I thought some of you might be interested to know that this abstract stuff we argue about here, actually has practical application in the real world. I would be interested to hear thoughts or comments. And I will be sure to come back on here after the 19th to let you all know how it came out.

good luck with your case.

i think people are very cavaier about the 5th and 4th amendments because they think that only bad guys are impacted by those things.

Thanks. You are right - it's easy to laugh at the rights of "bad guys" when you do not ever see yourself as being one nor do you think the police are capable of ever crossing over the line.

The case law is fully on our side on this one. As I said, however, I have a judge that generally finds a way around bothersome details such as irrefutable case law. One of his favorite techniques is to listen studiously to the argument, deny the motion and then refuse to state his basis for the denial.

 

[Zander]

If the confessed criminal that you are defending had said "I INVOKE MY RIGHT TO REMAIN SILENT" then you'd have a stronger case. Saying, "I ain't got nothing to say to you man" falls into a grey area - especially when he kept talking!! Smart criminals (oxymoron?) know how to SHUT THE FUCK UP!!!

I think your criminal is going to be convicted..........besides - he is guilty! He admitted it!!
He confessed. He's guilty. I rest my case!!

 

[jillian]

I am putting this up because I thought some of you might be interested to know that this abstract stuff we argue about here, actually has practical application in the real world. I would be interested to hear thoughts or comments. And I will be sure to come back on here after the 19th to let you all know how it came out.

good luck with your case.

i think people are very cavaier about the 5th and 4th amendments because they think that only bad guys are impacted by those things.

Thanks. You are right - it's easy to laugh at the rights of "bad guys" when you do not ever see yourself as being one nor do you think the police are capable of ever crossing over the line.

The case law is fully on our side on this one. As I said, however, I have a judge that generally finds a way around bothersome details such as irrefutable case law. One of his favorite techniques is to listen studiously to the argument, deny the motion and then refuse to state his basis for the denial.

Well, I always say that certain types of people pick and choose the parts of the constitution they like. There seems to be little understanding that only by protecting the unpleasant are we protected.

In NY, a judge can't just deny a motion (except maybe a motion to reargue) without setting forth the reasons for the decision. Is that the case where you are?

 

[syrenn]

I think you have a hard one George. You client kept talking. If he had nothing to say that means exactly that, he has nothing to say And he admited to the robbery.

Is it on tape?

 

[George Costanza]

good luck with your case.

i think people are very cavaier about the 5th and 4th amendments because they think that only bad guys are impacted by those things.

Thanks. You are right - it's easy to laugh at the rights of "bad guys" when you do not ever see yourself as being one nor do you think the police are capable of ever crossing over the line.

The case law is fully on our side on this one. As I said, however, I have a judge that generally finds a way around bothersome details such as irrefutable case law. One of his favorite techniques is to listen studiously to the argument, deny the motion and then refuse to state his basis for the denial.

Well, I always say that certain types of people pick and choose the parts of the constitution they like. There seems to be little understanding that only by protecting the unpleasant are we protected.

In NY, a judge can't just deny a motion (except maybe a motion to reargue) without setting forth the reasons for the decision. Is that the case where you are?

In civil court, we have what is called "Findings of Fact and Conclusions of Law" which a judge must file if requested to do so, following the making of certain types of rulings. Alas, not available in criminal court.

 

[George Costanza]

I think you have a hard one George.

God, I LOVE IT when you talk dirty . . .

Your client kept talking. If he had nothing to say that means exactly that, he has nothing to say And he admited to the robbery.

Is it on tape?

There are several USSC decisions which say that once the suspect invokes his right to silence, answers given to further questions are the product of improper compulsion and are not allowed. In other words, once he says he doesn't want to talk, no further responses come in, even if he gives them.

The interview is not on tape. It was conducted in the back seat of a police car. But it wouldn't matter whether it was on tape or not. It is clear what was said - it is in the officer's report as I have quoted it in the OP.

 

[George Costanza]

If the confessed criminal that you are defending had said "I INVOKE MY RIGHT TO REMAIN SILENT" then you'd have a stronger case. Saying, "I ain't got nothing to say to you man" falls into a grey area - especially when he kept talking!! Smart criminals (oxymoron?) know how to SHUT THE FUCK UP!!!

I think your criminal is going to be convicted..........besides - he is guilty! He admitted it!!
He confessed. He's guilty. I rest my case!!

I am not at all concerned about any claimed ambiguity in what my client said. It is difficult to imagine a clearer invocation of the right to silence than the statement: "I got nothing to say to you."

And, as I mentioned to Sweet Pea here, the cases say that once a suspect invokes, all questioning must cease and responses given to questions asked following an invocation are deemed the product of improper compulsion, and will be excluded.

But thanks to both you and Syrenn for your comments. One of the reasons I started this thread was to get potentially negative input so that I will better be able to anticipate what happens at the hearing vis a vis what the DA will throw at us.

 

[Zander]

If the confessed criminal that you are defending had said "I INVOKE MY RIGHT TO REMAIN SILENT" then you'd have a stronger case. Saying, "I ain't got nothing to say to you man" falls into a grey area - especially when he kept talking!! Smart criminals (oxymoron?) know how to SHUT THE FUCK UP!!!

I think your criminal is going to be convicted..........besides - he is guilty! He admitted it!!
He confessed. He's guilty. I rest my case!!

I am not at all concerned about any claimed ambiguity in what my client said. It is difficult to imagine a clearer invocation of the right to silence than the statement: "I got nothing to say to you."

And, as I mentioned to Sweet Pea here, the cases say that once a suspect invokes, all questioning must cease and responses given to questions asked following an invocation are deemed the product of improper compulsion, and will be excluded.

But thanks to both you and Syrenn for your comments. One of the reasons I started this thread was to get potentially negative input so that I will better be able to anticipate what happens at the hearing vis a vis what the DA will throw at us.

The biggest problem when defending clients who are guilty is the "they did it" part......

Make sure you update us on the disposition of this case!

 

[Quantum Windbag]

Remember the Miranda case that came out four months ago - the one that required the suspect to actually invoke his right to silence or he would not be able to claim it? That case was Burghuis v. Thompkins 130 S.C. 2250. It was decided in June of this year.

In Burghuis, the defendant was advised of his Miranda rights. He was then interrogated for three hours or so. He rarely spoke during the questioning and, when he did, it was only to say "yes" or "no" to meaningless questions. Then, at the very end of the questioning, the detective asked him if he believed in God. He said he did. The detective asked him if he prayed. The defendant said he did. The dectective then asked him if he prayed to God to forgive him for doing the shooting. The defendant said he did.

At trial, the defense sought to keep the defendant's confession out on the grounds that he had invoked his right to silence by actually being silent throughout the entire, three-hour interview up until he finally broke his silence by answering the question about praying for forgiveness in connection with the shooting.

The Supremes ruled that, since the defendant did not actually SAY he wanted to remain silent, he had not properly invoked the right and had, in fact, waived it. His admission was allowed to stand.

OK - I have a case right now with the following facts: The defendant is a 16-year-old youth, charged with robbery. They are proceeding against him in adult court under a procedure knows as "direct filing." The following is an exact quote from the detective's report: "Prior to transporting (the defendant) I read him his Miranda rights. The defendant said he understood each of the questions and agreed to speak to me without an attorney present. After reading the Miranda rights, I asked him if he wanted to talk to me regarding the robbery case. He said, 'I got nothing to say to you.' I then asked him if he was from (the gang in question) at the time he committed the robbery. He said, 'Yeah, but I don't hang out with them no more.'"

Interesting, wouldn't you think? A number of issues pop out immediately. Here, as opposed to Burghuis, the defendant clearly invoked his right to silence in no uncertain terms. "I got nothing to say to you." The fact that this was the first thing he said after agreeing to speak with the detective means nothing. Once a suspect invokes, game over. "All questioning must cease," per the Miranda decision.

And yet, the cop just continues blithly along, totally ignoring the invocation of the right to silence, and gets a full confession out of the suspect.

On October 19th, I will be attempting to keep the confession out at preliminary hearing. I think it is a slam dunk - but we will be in front of a notoriously prosecution minded judge who never saw a defense motion he ever liked. I still think we should win, but have the odds at about 50-50 at this point.

I am putting this up because I thought some of you might be interested to know that this abstract stuff we argue about here, actually has practical application in the real world. I would be interested to hear thoughts or comments. And I will be sure to come back on here after the 19th to let you all know how it came out.

I have a question.

While I can see now that he is being tried as an adult, isn't the general policy that a minor cannot be questioned unless the parent is present. Given the fact that the defendant is clearly a minor, shouldn't the detective have treated him as a minor and not question him at all?

I do understand the desire of police to close cases, but their training should cover both minors and Miranda. All this guy did was make it harder for the prosecutor to get a conviction. Which is why I think all police interrogations should be videotaped. I even think the only way a statement made by a suspect should be admissible is if it is taped. There is absolutely no reason in this day and age for a cop not to be able to record any interrogation, even in the field.

 

[jillian]

I think you have a hard one George. You client kept talking. If he had nothing to say that means exactly that, he has nothing to say And he admited to the robbery.

Is it on tape?

The Miranda decisions make it clear that interrogation can take many forms. Once someone under custodial interrogation invokes his or her right to silence, the police are supposed to immediately stop their questioning. Any responses elicited after such unlawful questioning are inadmissible.

 

[jillian]

Thanks. You are right - it's easy to laugh at the rights of "bad guys" when you do not ever see yourself as being one nor do you think the police are capable of ever crossing over the line.

The case law is fully on our side on this one. As I said, however, I have a judge that generally finds a way around bothersome details such as irrefutable case law. One of his favorite techniques is to listen studiously to the argument, deny the motion and then refuse to state his basis for the denial.

Well, I always say that certain types of people pick and choose the parts of the constitution they like. There seems to be little understanding that only by protecting the unpleasant are we protected.

In NY, a judge can't just deny a motion (except maybe a motion to reargue) without setting forth the reasons for the decision. Is that the case where you are?

In civil court, we have what is called "Findings of Fact and Conclusions of Law" which a judge must file if requested to do so, following the making of certain types of rulings. Alas, not available in criminal court.

Interesting. My understanding is that such a requirement exists for both civil and criminal actions here. But, now I need to find out. Thanks.

 

[George Costanza]

Remember the Miranda case that came out four months ago - the one that required the suspect to actually invoke his right to silence or he would not be able to claim it? That case was Burghuis v. Thompkins 130 S.C. 2250. It was decided in June of this year.

In Burghuis, the defendant was advised of his Miranda rights. He was then interrogated for three hours or so. He rarely spoke during the questioning and, when he did, it was only to say "yes" or "no" to meaningless questions. Then, at the very end of the questioning, the detective asked him if he believed in God. He said he did. The detective asked him if he prayed. The defendant said he did. The dectective then asked him if he prayed to God to forgive him for doing the shooting. The defendant said he did.

At trial, the defense sought to keep the defendant's confession out on the grounds that he had invoked his right to silence by actually being silent throughout the entire, three-hour interview up until he finally broke his silence by answering the question about praying for forgiveness in connection with the shooting.

The Supremes ruled that, since the defendant did not actually SAY he wanted to remain silent, he had not properly invoked the right and had, in fact, waived it. His admission was allowed to stand.

OK - I have a case right now with the following facts: The defendant is a 16-year-old youth, charged with robbery. They are proceeding against him in adult court under a procedure knows as "direct filing." The following is an exact quote from the detective's report: "Prior to transporting (the defendant) I read him his Miranda rights. The defendant said he understood each of the questions and agreed to speak to me without an attorney present. After reading the Miranda rights, I asked him if he wanted to talk to me regarding the robbery case. He said, 'I got nothing to say to you.' I then asked him if he was from (the gang in question) at the time he committed the robbery. He said, 'Yeah, but I don't hang out with them no more.'"

Interesting, wouldn't you think? A number of issues pop out immediately. Here, as opposed to Burghuis, the defendant clearly invoked his right to silence in no uncertain terms. "I got nothing to say to you." The fact that this was the first thing he said after agreeing to speak with the detective means nothing. Once a suspect invokes, game over. "All questioning must cease," per the Miranda decision.

And yet, the cop just continues blithly along, totally ignoring the invocation of the right to silence, and gets a full confession out of the suspect.

On October 19th, I will be attempting to keep the confession out at preliminary hearing. I think it is a slam dunk - but we will be in front of a notoriously prosecution minded judge who never saw a defense motion he ever liked. I still think we should win, but have the odds at about 50-50 at this point.

I am putting this up because I thought some of you might be interested to know that this abstract stuff we argue about here, actually has practical application in the real world. I would be interested to hear thoughts or comments. And I will be sure to come back on here after the 19th to let you all know how it came out.

I have a question.

While I can see now that he is being tried as an adult, isn't the general policy that a minor cannot be questioned unless the parent is present. Given the fact that the defendant is clearly a minor, shouldn't the detective have treated him as a minor and not question him at all?

The minor must ask to have a parent present. If he does not do that, police may question in the absence of a parent. In this case, the minor did not ask. His parents were "there" in the sense that they were in the house while the minor was being questioned in the police car. That would not have been sufficient had the minor asked to have a parent with him, but he didn't ask.

I do understand the desire of police to close cases, but their training should cover both minors and Miranda. All this guy did was make it harder for the prosecutor to get a conviction. Which is why I think all police interrogations should be videotaped. I even think the only way a statement made by a suspect should be admissible is if it is taped. There is absolutely no reason in this day and age for a cop not to be able to record any interrogation, even in the field.

You raise an interesting point here and one that is very important to the criminal justice system. You are, of course, totally correct. There is EVERY reason why all police interrogations should be taped. It benefits both the defense and the prosecution. It benefits the prosecution because, when they DO get a valid confession, if the case goes to trial, the defendant invariably denies that he confessed and claims the police are lying. If the confession had been taped, there probably would not even have been a trial. It benefits the defense in those cases where the police ARE lying and the defendant really did NOT confess.

At present, there are five states with a law mandating the recording of confessions (video, audio or written) as a prerequisite to admissibility at trial. This should be the law in ALL states. I suspect that law enforcement resists such a law for whatever reasons they may have - probably a desire to "maintain control" over police interrogations and the confessions (valid or otherwise) that come out of them.

 

[George Costanza]

Well, I always say that certain types of people pick and choose the parts of the constitution they like. There seems to be little understanding that only by protecting the unpleasant are we protected.

In NY, a judge can't just deny a motion (except maybe a motion to reargue) without setting forth the reasons for the decision. Is that the case where you are?

In civil court, we have what is called "Findings of Fact and Conclusions of Law" which a judge must file if requested to do so, following the making of certain types of rulings. Alas, not available in criminal court.

Interesting. My understanding is that such a requirement exists for both civil and criminal actions here. But, now I need to find out. Thanks.

You know, in the back of my mind, that is my understanding as well. It's just that, in all the time I have been in the criminal justice system, I have never seen findings of facts and conclusions of law asked for or given. I'll do some checking as well and get back to you.

 

[George Costanza]

If the confessed criminal that you are defending had said "I INVOKE MY RIGHT TO REMAIN SILENT" then you'd have a stronger case. Saying, "I ain't got nothing to say to you man" falls into a grey area - especially when he kept talking!! Smart criminals (oxymoron?) know how to SHUT THE FUCK UP!!!

I think your criminal is going to be convicted..........besides - he is guilty! He admitted it!!
He confessed. He's guilty. I rest my case!!

I am not at all concerned about any claimed ambiguity in what my client said. It is difficult to imagine a clearer invocation of the right to silence than the statement: "I got nothing to say to you."

And, as I mentioned to Sweet Pea here, the cases say that once a suspect invokes, all questioning must cease and responses given to questions asked following an invocation are deemed the product of improper compulsion, and will be excluded.

But thanks to both you and Syrenn for your comments. One of the reasons I started this thread was to get potentially negative input so that I will better be able to anticipate what happens at the hearing vis a vis what the DA will throw at us.

The biggest problem when defending clients who are guilty is the "they did it" part......

Make sure you update us on the disposition of this case!

FYI, in this case, my client is maintaining that he did NOT commit the robbery. I don't have time or space to go into all of the facts - they are complicated. Briefly, however, it is alleged that five gang members (my client included) robbed two individuals of about six hundred dollars by pulling up next to them in a car, getting out, and robbing them at gun point. The defense is that the "victims" owed the money to the guys in the car and it was a prearranged meeting to pay the money back.

You will note, that the detective in this case clearly tricked the defendant into the confession that was made. Setting aside for the moment, the question of the legality of the questioning itself, the officer was asking the kid about his gang membership. That was the only topic of conversation. At the very end, he asked him whether or not he was a gang member "when you committed this robbery." The kid thought he was only admitting to being a gang member, and he said "yes."

The detective could well have actually asked, "Were you a gang member when the robbery was committed?" and then altered the question somewhat in his report, to make it a full confession. I know this is going to come as a shock, but police detectives have been known to do things like that.

Defending a guilty party. That's a thread topic in and of itself - maybe even a Forum could be created to cover it. Suffice it to say for now, no professional has any problem whatsoever in defending a guilty person. It's just that, in almost all cases, the "defense" does not go to the points that the lay public thinks it does.

 

[Quantum Windbag]

The minor must ask to have a parent present. If he does not do that, police may question in the absence of a parent. In this case, the minor did not ask. His parents were "there" in the sense that they were in the house while the minor was being questioned in the police car. That would not have been sufficient had the minor asked to have a parent with him, but he didn't ask.

Thanks for the clarification. It doesn't work that way in all states, which is why I asked. My default position as a parent was no one could question my child without me being present.

You raise an interesting point here and one that is very important to the criminal justice system. You are, of course, totally correct. There is EVERY reason why all police interrogations should be taped. It benefits both the defense and the prosecution. It benefits the prosecution because, when they DO get a valid confession, if the case goes to trial, the defendant invariably denies that he confessed and claims the police are lying. If the confession had been taped, there probably would not even have been a trial. It benefits the defense in those cases where the police ARE lying and the defendant really did NOT confess.

At present, there are five states with a law mandating the recording of confessions (video, audio or written) as a prerequisite to admissibility at trial. This should be the law in ALL states. I suspect that law enforcement resists such a law for whatever reasons they may have - probably a desire to "maintain control" over police interrogations and the confessions (valid or otherwise) that come out of them.

It could also help even if the defendant does confess, as his defense could show how the police fed him details about the crime, and all the other things that help police get false confessions. There are some police that actively advocate for all interrogations to be taped, even in states where the law does not require it. All of them state how much it has actually helped them, not only because it helps protect them from claims of abuse, but as a training technique so that others can learn good, and bad, interrogation techniques.

 

[Ringel05]

Remember the Miranda case that came out four months ago - the one that required the suspect to actually invoke his right to silence or he would not be able to claim it? That case was Burghuis v. Thompkins 130 S.C. 2250. It was decided in June of this year.

In Burghuis, the defendant was advised of his Miranda rights. He was then interrogated for three hours or so. He rarely spoke during the questioning and, when he did, it was only to say "yes" or "no" to meaningless questions. Then, at the very end of the questioning, the detective asked him if he believed in God. He said he did. The detective asked him if he prayed. The defendant said he did. The dectective then asked him if he prayed to God to forgive him for doing the shooting. The defendant said he did.

At trial, the defense sought to keep the defendant's confession out on the grounds that he had invoked his right to silence by actually being silent throughout the entire, three-hour interview up until he finally broke his silence by answering the question about praying for forgiveness in connection with the shooting.

The Supremes ruled that, since the defendant did not actually SAY he wanted to remain silent, he had not properly invoked the right and had, in fact, waived it. His admission was allowed to stand.

OK - I have a case right now with the following facts: The defendant is a 16-year-old youth, charged with robbery. They are proceeding against him in adult court under a procedure knows as "direct filing." The following is an exact quote from the detective's report: "Prior to transporting (the defendant) I read him his Miranda rights. The defendant said he understood each of the questions and agreed to speak to me without an attorney present. After reading the Miranda rights, I asked him if he wanted to talk to me regarding the robbery case. He said, 'I got nothing to say to you.' I then asked him if he was from (the gang in question) at the time he committed the robbery. He said, 'Yeah, but I don't hang out with them no more.'"

Interesting, wouldn't you think? A number of issues pop out immediately. Here, as opposed to Burghuis, the defendant clearly invoked his right to silence in no uncertain terms. "I got nothing to say to you." The fact that this was the first thing he said after agreeing to speak with the detective means nothing. Once a suspect invokes, game over. "All questioning must cease," per the Miranda decision.

And yet, the cop just continues blithly along, totally ignoring the invocation of the right to silence, and gets a full confession out of the suspect.

On October 19th, I will be attempting to keep the confession out at preliminary hearing. I think it is a slam dunk - but we will be in front of a notoriously prosecution minded judge who never saw a defense motion he ever liked. I still think we should win, but have the odds at about 50-50 at this point.

I am putting this up because I thought some of you might be interested to know that this abstract stuff we argue about here, actually has practical application in the real world. I would be interested to hear thoughts or comments. And I will be sure to come back on here after the 19th to let you all know how it came out.

So basically you want to get a guilty as shit punk off on a technicality. I know it's your job but hey. Besides I may be wrong but I was under the impression Miranda was nulled and voided not long ago by the S.C.
As for your case, where does it say the cops can't continue to ask questions or "carry on a conversation" with the suspect? The suspect should have followed through with his statement of silence but didn't. He chose to negate his first statement by continuing to answer questions. His bad.
What jurisdiction and how do I get a hold of the DA, just in case he/she hasn't considered this angle.

 

[George Costanza]

Remember the Miranda case that came out four months ago - the one that required the suspect to actually invoke his right to silence or he would not be able to claim it? That case was Burghuis v. Thompkins 130 S.C. 2250. It was decided in June of this year.

In Burghuis, the defendant was advised of his Miranda rights. He was then interrogated for three hours or so. He rarely spoke during the questioning and, when he did, it was only to say "yes" or "no" to meaningless questions. Then, at the very end of the questioning, the detective asked him if he believed in God. He said he did. The detective asked him if he prayed. The defendant said he did. The dectective then asked him if he prayed to God to forgive him for doing the shooting. The defendant said he did.

At trial, the defense sought to keep the defendant's confession out on the grounds that he had invoked his right to silence by actually being silent throughout the entire, three-hour interview up until he finally broke his silence by answering the question about praying for forgiveness in connection with the shooting.

The Supremes ruled that, since the defendant did not actually SAY he wanted to remain silent, he had not properly invoked the right and had, in fact, waived it. His admission was allowed to stand.

OK - I have a case right now with the following facts: The defendant is a 16-year-old youth, charged with robbery. They are proceeding against him in adult court under a procedure knows as "direct filing." The following is an exact quote from the detective's report: "Prior to transporting (the defendant) I read him his Miranda rights. The defendant said he understood each of the questions and agreed to speak to me without an attorney present. After reading the Miranda rights, I asked him if he wanted to talk to me regarding the robbery case. He said, 'I got nothing to say to you.' I then asked him if he was from (the gang in question) at the time he committed the robbery. He said, 'Yeah, but I don't hang out with them no more.'"

Interesting, wouldn't you think? A number of issues pop out immediately. Here, as opposed to Burghuis, the defendant clearly invoked his right to silence in no uncertain terms. "I got nothing to say to you." The fact that this was the first thing he said after agreeing to speak with the detective means nothing. Once a suspect invokes, game over. "All questioning must cease," per the Miranda decision.

And yet, the cop just continues blithly along, totally ignoring the invocation of the right to silence, and gets a full confession out of the suspect.

On October 19th, I will be attempting to keep the confession out at preliminary hearing. I think it is a slam dunk - but we will be in front of a notoriously prosecution minded judge who never saw a defense motion he ever liked. I still think we should win, but have the odds at about 50-50 at this point.

I am putting this up because I thought some of you might be interested to know that this abstract stuff we argue about here, actually has practical application in the real world. I would be interested to hear thoughts or comments. And I will be sure to come back on here after the 19th to let you all know how it came out.

So basically you want to get a guilty as shit punk off on a technicality.

How do you know he is "guilty as shit"? He denies guilt. If you will take the time to read what happened, it should be apparent that he was tricked into making the confession that he did.

As far as getting him off on a "technicality," I would hardly call coercing a tricked confession from a 16-year-old child a "technicality." This kid has never been arrested for anything in his life. He was handcuffed in the back seat of a police car and a seasoned police detective was questioning him about a crime he now says he did not commit. Confessions almost always result in guilty verdicts. I would not consider something like this a "technicality."

Besides I may be wrong but I was under the impression Miranda was nulled and voided not long ago by the S.C.

Guess again, Mojambo. Miranda is alive and relatively well, thank you very much. And, once again, if you had taken the time to actually read the OP, you would have seen the case you are talking about here (Burghuis v. Thompkins) mentioned along with a brief factual summary. That case did not overrule Miranda. It merely clarified one aspect of the Miranda decision insofar as invocation of the right to remain silent is concerned.

As for your case, where does it say the cops can't continue to ask questions or "carry on a conversation" with the suspect?

Four or five United States Supreme Court decisions.

The suspect should have followed through with his statement of silence but didn't. He chose to negate his first statement by continuing to answer questions. His bad.

Boy, you really don't let the fact that you haven't read anything prevent you from mouthing off, do you? I have mentioned two or three times on this thread, that once a suspect invokes his right to silence, all questioning must cease, and any responses given to further questioning are inadmissible because they are deemed to be the product of coercive questioning techniques.

What jurisdiction and how do I get a hold of the DA, just in case he/she hasn't considered this angle.

Absolutely. This case is currently set in the Right Wing Conservative Nut Case Superior Court, in and for the County of Intolerance, State of Total Ignorance. You be sure and give the DA the benefit of your vast legal knowledge. I'm sure he will appreciate it.