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Published: Tuesday, 6/15/2010

Speak up

There is nothing more passe, if you're a criminal defendant, than the notion that you truly have the right to remain silent.

A Michigan man was convicted of shooting a man based on a one-word answer he gave during a police interrogation. After maintaining silence for nearly three hours, Van Chester Thompkins answered "yes" to this question by a detective: "Do you pray to God to forgive you for shooting that boy down?"

Mr. Thompkins was convicted on the basis of his answer, but he appealed to the 6th U.S. Circuit Court of Appeals. That court threw out the conviction because his right against self-incrimination had been grossly violated.

That wasn't the end of the story. According to a recent 5-4 U.S. Supreme Court ruling, unless a citizen's Miranda rights are formally invoked either orally or in writing, then silence, once a refuge for the accused until a lawyer arrived, can be used against you.

In other words, actual silence on Mr. Thompkins' part during police questioning didn't mean he had invoked the right to remain silent.

In reinstating his conviction, the high court ruled that Mr. Thompkins' intention to invoke Miranda wasn't clear, even if logic and common sense dictated that he desired legal representation. The police weren't obliged to offer him a waiver before continuing the interrogation, either.

The ruling puts Miranda on its shakiest ground since it became legal precedent in 1966. Justice Sonia Sotomayor wrote the court's dissent, accusing her fellow justices of turning Miranda upside down: "Criminal suspects must now unambiguously invoke their right to remain silent - which, counterintuitively, requires them to speak."

With self-incrimination as the new default mode in interrogation rooms nationwide, the conservative Supreme Court majority continues an unfortunate trend toward granting authorities more leeway to question suspects.

You still have the right to remain silent, but you'd better speak up first and tell your interrogator that you intend to invoke your Fifth Amendment right against self-incrimination. At the rate things are going, you may have to repeat it for emphasis.



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