Speaking Now Required to Remain Silent

If you have the Constitutional right to remain silent and remain silent in the face of police interrogation, have you preserved your right or waived it? Well, in the recent U.S. Supreme Court (SCOTUS) of Berghuis v. Thompkins, the Court ruled 5-4 that a suspect must speak in order to assert the right to remain silent.

Van Chester Thompkins was given his Miranda warnings and remained silent for almost 3 hours. During that time, the police continued the interrogation. Thompkins eventually made an incriminating statement. A lower federal court found Thompkins had successfully asserted his right to remain silent by actually remaining silent. Further, the lower court held that officers should have ended the questioning. The Supreme Court overturned the lower court.

The majority of the Supreme Court said if police give Miranda warnings to a suspect, they may begin questioning and continue questioning the suspect unless the person clearly and unambiguously announces he desires to remain silent or wants a lawyer. Police are not required to expressly ask a suspect to waive their rights. If the suspect shows incredible stamina (like Thompkins) and manages to remain silent through hours of intense interrogation, he "waives" his right to silence if he eventually caves in to pressure. Consequently, his incriminating statements can be used against him.