The Constantly Changing Miranda Warning
Leon J. Mezzetti, Criminal Defense Lawyer
Anyone who has ever watched an episode of any police drama on television has heard the words "you have the right to remain silent" at some point. The 1966 U.S. Supreme Court case Miranda v. Arizona requires law enforcement officials to inform those arrested of their constitutional rights before any questioning takes place. Those rights include the right to remain silent, as well as the right to have an attorney present.
In the past, the warning provided a clear picture of the rights that were granted to those in police custody. The warning meant what it said, giving those accused of crimes protection from self-incrimination under the Fifth Amendment. Law enforcement officials needed to read the warning to those they wished to question, and make sure that it was understood. Additionally, if someone wished to remain silent or have an attorney present, police would need to comply with those wishes and end the interrogation.
Through time, the Supreme Court has diminished the protections afforded by Miranda. Berrguis v. Thompkins is the most recent case that changed how Miranda is enforced. Van Chester Thompkins was wanted in connection with a murder that occurred in Southfield, Michigan. He was unable to be found for over a year. When police finally were able to arrest Thompkins, he was in Columbus, Ohio. Michigan police traveled to Ohio to question Thompkins.
Before the interrogation, the investigators presented Thompkins with a sheet of paper that contained his Miranda rights. They asked him to read these rights out loud, to make sure that he could understand English. When he finished reading, they asked him to sign a form that stated that he knew and understood his rights. Thompkins refused to sign the form.
Police began to question Thompkins. The record shows some conflicting reports as to how often he engaged in answering the investigators questions. For the most part, he remained silent. For 2 hours and 45 minutes, Thompkins basically refused to answer any questions, occasionally nodding or grunting. Then, one of the detectives asked Thompkins if he believed in God. When Thompkins answered yes, the detective asked him if he prayed to God to forgive him for what happened to the victim. He again answered yes.
Thompkins refused to write his confession down, or sign anything presented to him. He had requested that his statements be excluded from his trial, but the Michigan state trial court said that since he never affirmatively expressed his right to remain silent, his statements could be used against him.
On appeal, the 6th Circuit excluded Thompkins statements, calling the decision "an unreasonable application of clearly established Federal law." The case was heard by the U.S. Supreme Court, and in a 5-4 decision, the Court concluded that it in order for Thompkins to have his statement excluded, he needed to make an affirmative statement saying that he was going to remain silent.
What You Can Do to Protect Yourself
This decision will have a major impact on the way police conduct interrogations. Law enforcement can be more aggressive in pushing past a suspect's right to remain silent. They can basically try to break you down, and then use this information against you. Since the protections of Miranda have been slowly diminishing over time, you need to protect yourself in the event of an interrogation or investigation. Here are some steps you can take that will help you interact with police.
Do not attempt to talk your way out of trouble - Police are not looking out for your best interests. If you are the target of a police investigation, consult an experienced criminal defense attorney in your area to understand what rights you have.
Do not confess to any crimes - Even if you think you know why police targeted you, you may not know for sure. They may be investigating an entirely different matter, and any admissions you make will only make your situation more difficult.
Ask for an attorney - Often, people are afraid to ask for an attorney because it makes them appear guilty. You have a constitutional right which requires that police allow you access to an attorney. Do not be afraid of the implications. Be more afraid of what happens when you do not protect yourself.
Exercise your right to remain silent - The Thompkins case makes it an absolute requirement for you to affirmatively state your right to remain silent throughout questioning. Make it clear to investigators that you will not discuss anything until you meet with your attorney. If police continue to question you, you need to continue to remain silent.
With the decision of this case, the Court has given law enforcement more leeway in their ability to investigate criminal activity. Even though the Miranda warning still exists, for most practical purposes, it will offer you little protection unless you forcefully and repeatedly assert your rights.
For further reading: Miranda Warning, Wikipedia