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By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

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This Summer the U.S. Supreme Court has made a handful of rulings chipping away at Miranda rights.  Most notably, in Berghuis v. Thompkins the Court ruled that an accused must “unambiguously” invoke his right to remain silent to garner the protection of Miranda.

In Berghuis, the Court held that a Michigan man who was given Miranda warnings sat in silence for three hours while police were present peppering him with questions did not “unambiguously” assert his Miranda rights and therefore waived them when he finally cracked three hours later by admitting that he prayed for forgiveness for the shooting.

In Plain Language

To recap, Miranda rights are necessary because our system of justice is adversarial.  At some point, a neutral police investigation can change into a criminal prosecution which is anything but neutral.  The problem for defendants is that the police make this choice — and often won’t tell the accused.  This can give the police an extremely unfair advantage in pressuring statements and confessions out of criminal suspects.  An accused may give a statement or a confession thinking they’ll avoid criminal prosecution by coming clean — or may tell the police what he thinks they want to hear thinking it will persuade the police to drop the “investigation” when the truth of the situation is that the police are planning their court-room strategy.  In any event, an accused has a 5th Amendment right to remain silent and it’s conceivably triggered when the proceedings become adversarial (in Texas when the person is in custody.)

Everyday Practice

Unfortunately, many police officers are either oblivious to your rights or see your rights as merely an obstacle they can hurdle, slither-around, or something to which the can just give lip-service.  The facts of Berghuis are not uncommon with confessions in criminal cases.  Officers routinely play all sorts of different games when it is clear the suspect isn’t willing to cooperate.  Sometimes the officers can pressure the accused like a used-car salesman trying to make a sale or sometimes the officers can use law-enforcement techniques such as deception.  In any event, merely because someone remains silent or asks for a lawyer doesn’t automatically mean the questioning is necessarily over — even though that is what should happen.

The Rationale Behind Berghuis

Justice Kennedy writing for the 5-4 majority in Berghuis wrote, “If Thompkins wanted to remain silent, he could have said nothing in response to Helgert’s questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation.  The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver.”

I added the italics in the quote from Justice Kennedy above for the reason that it exposes, in my opinion, his lack of understanding of the every-day practice of criminal law and police tactics.  First of all, very rarely does an accused truly understand Miranda with the same depths as even the police-officers much less know how to “unambiguously” know how to assert them.  Often an accused may ask officers follow-up questions about Miranda or give a luke-warm or half-hearted response that they don’t want to answer questions.

Secondly… Justice Kennedy dangerously assumes the police would have ended the interrogation after the “unambiguous” assertion.

Finally, it allows the police to be the judges of what does or does not constitute an “unambiguous” assertion of Miranda rights by an accused.  As a guess, not many police officers that consistently undermine Miranda any-way will give the accused the benefit of the doubt if they just “sort of” invoke Miranda and the accused could be drilled until the police get what they’re after.

Is Miranda Dead?

No.  As with all Supreme Court rulings, only time will tell the true impact of Berghuis.  But make no mistake — police may interpret this ruling as a green-light to ignore people’s attempts at invoking their right to counsel.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice for any specific situation you should directly consult an attorney.