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

[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.

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."



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.



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.

Touchy aren't we.....