Know Your Rights if Arrested in New York (Part III)

Asserting one’s Rights:

Since Miranda v. Arizona was issued in 1966 there have been hundreds of cases decided by the US Supreme Court which interpret the language and spirit of the Miranda decision, as it applies to new circumstances. As a trend, we can safely say the protections afforded by the drafters of the original decision have been steadily eroded, with limitations on the extent of the rule and qualifications on whether police have violated the rule, consistently being added.

Until recently, the general rule has been that questioning of a person in “custody” (see Part II of this article for discussion of “custody”) must cease if the person clearly and unambiguously asks for an attorney. This makes sense, even while requiring the person in custody to break their silence to make this request. This is still the status of the law.

However, with the issuance in August 2010 of the U.S.Supreme Court decision in Berghuis v. Thompkins, the Court significantly changed the rules as to a suspect’s most valuable right to remain silent, and the police obligation to cease questioning if the right is asserted.

The crux of the Berghuis decision was to now require a suspect, in police custody, to affirmatively state that he wishes to exercise the right to remain silent before the police must consider the right invoked. Once invoked, the general rule is that questioning must cease. What makes Berghuis ironic is that now, for the first time, the Court is requiring a person to essentially break their silence in order to invoke their right to remain silent.

In that case, Thompkins was a suspect in a homicide, and was in custody but not yet charged with the crime. He was questioned for over two and a half hours, and said almost nothing during that time. He never told his interrogators, however, that he did not wish to speak with them or that they should stop questioning him because he would not speak.

According to the record, at about the two hour and fortyfive minute point of the interview, Thompkins was asked whether he prayed to God to forgive him for the shooting, to which he answered “yes”. Thompkins tried to have the trial court suppress the use of this “statement” but was denied. His words were introduced as his admission at trial, and he was convicted.

The Supreme Court reasoned that since an unambiguous assertion of the right to an attorney is necessary before questioning must stop, the “right to cut off questioning” by asserting the wish to remain silent should also be clear and unambiguous. Since Thompkins did not clearly and unambiguously assert the right, he did not trigger his right to cut off questioning, and thus his statement could be used against him. The Court found (by a 5-4 majority) that merely remaining silent, even after two and three-quarter hours of (albeit imperfect) silence, was not an umbiguous assertion of the very right which Thompkins had been exercising all along.

The prosecution was charged as well with the “heavy burden” (Miranda at page 475) to prove Thompkins waived his right to remain silent after being read the warnings. The waiver must be knowing and intelligent, and not the product of “intimidation, coersion or deception” (Moran v. Burbine, 475 U.S. 412). This issue was resolved by the Court: “Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent”(Berghuis, at 2262).Thompkins fit this description, and the statement came in at trial.

The case is worth reading for a good discussion of the history of Miranda, and for excellent arguments in dissent discussing the steady erosion thereof, which was written by our newest Justice Sonya Sotomayor.

We suggest that a person who wishes to be fully protected by our laws must become familiar with the statutes and cases which address the issues in our lives. Studying the cases, which are now readily available from several sources, is a place start. For specific situations and questions, please call us for a free consultation at (518) 583-4600.