Articles Posted in rights upon arrest

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.
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Last week we discussed the wisdom of “remaining silent” in the face of police questioning. We discussed how the Supreme Court’s Miranda v. Arizona case places upon the police an affirmative obligation to advise a person in their custody of certain rights, among these being the right to say nothing at all.

To re-cap, it is usually a good idea to exercise this most important right, when faced with police interrogation involving anything at all of a serious nature. What the police might then call your “lack of cooperation” could lead to you spending the night in jail. This, however, is usually far preferable to incriminating yourself and (later on) spending many nights in jail.

The Right to Remain Silent is part of the “Miranda warning” which the police are supposed to give you upon your arrest. However, you have this right even before the police remind you of it. You conduct your day to day activities while cloaked with this critical protection. You do not need for an officer to advise or remind you of this right before it kicks in to protect you.

Another right you always have is the right to be represented by an attorney. Most people do not need an attorney to conduct their daily affairs, but events can and do sometimes occur for which you should absolutely seek legal counsel and protection. Being questioned by police on any sort of serious matter is surely one of those times.
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