SCOTUS -- Silence is Not Enough to Remain Silent

June 4, 2010

By Gregory S. Cusimano

You have the right to remain silent, anything you say can and will be used against you in a court of law. You have a right to an attorney and have that attorney present when we question you. If you cannot afford an attorney, one will be provided you at no cost.

If you have ever watched a law TV show you know an incriminating statement by a suspect cannot be used against them unless they have been Mirandized. An article in the ABA Journal reports that in a new Supreme Court opinion "Suspects Must Speak to Invoke Right to Silence"

In a 5-4 opinion the Court in substance held that remaining silent for 3 hours of questions from the police did not invoke the right to remain silent. I guess the suspect would have to speak to remain silent. Actually say, I refuse to waive my Miranda right to remain silent. Warden V. Thompkins ,(No.08--1470), 560 U.S._____(June, 2010).

The 4 dissenting Justices call the majority opinion a "substantial retreat from the protection against compelled self-incrimination." The defendant took the position that he invoked his Miranda right to remain silent by actually remaining silent. The Majority disagreed.

It is also interesting why it seems recently the Court has not followed precedent of deciding cases as narrowly as possible. We have seen a shift. What do you think?