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.