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.