Miranda is a "tried and true" principle. We've seen the "warning" one million times in cop shows and reality bits. Heck, most of us can recite, verbatim the Miranda warning. You and I know we have a right to remain silent, or request an attorney, when we're being questioned by police. In fact, I've told you before, that you shouldn't talk with a police officer, regardless of whether you believe you're innocent.
Now, in Berghuis v. Thompkins, the United States Supreme Court, makes it quite clear that you can't "remain silent" as a method of protecting yourself from coercive police interrogation.
Often, it's the case in custodial interrogations that a suspect will sit quiet, silent, for long periods of time. The police interrogate the suspect until he/she finally cracks and confesses under pressure. Many suspects then get charged with the crime.
In the past, the greatest challenge to the case was that the police obtained the evidence because of "poisoness" behavior (interrogation past a suspect's silence.) Now, under Berghuis, as suspect who does not explicitly invoke his/her right to an attorney, or else the "right" to silence gets waived.
It's imperative now that you ask for an attorney, and refuse to answer all questions, the minute you suspect you're the subject of a police investigation. I might even encourage you to only state your "rank, name, and serial number" (name, date of birth, and address), without an attorney present. You may even consider using the following remarks:
My name is ________. I was was born _________. My address is ___________. I refuse to answer any more questions regarding this incident, or any other crime, without an attorney present.
Keep repeating the phrase until you're given an attorney. Note too, the second clause, "or any other crime" is important, because of the possibility that the police interrogators may continue to question you about other crimes, without violating your 5th Amendment rights.
Finally, as a side note, while this post may seem critical of the Court's decision, it's not intended that way. I love bright-line rules that give us an ability to finely discern right and wrong. I think the Court gives a respectable method to use in determining whether a suspect reasonably waived his/her right to silence. With this decision, my advice 2 paragraphs above becomes even more critical. If you don't want a criminal charge, don't talk with the police if you don't have an attorney.
If you're being questioned by police, you need an attorney. Although our office doesn't handle criminal matters, we can refer you to competent criminal defense attorneys who can help you. Give us a call: (405) 748-0318 or send an email: