You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.
That is the minimal warning the police are required to give to a suspect before questioning him per Miranda. We hear it in every episode of a cop show or procedural drama.
I have countless clients that complain they weren't "read their rights" upon being arrested.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. - 5th Amendment
Notice there is nothing in either the 5th Amendment or in the Miranda warning that indicates a suspect in a criminal case has to tell the police he doesn't want to answer questions. "You have the right to remain silent." How hard a concept is that to get your head around?
Apparently much harder than you or I might think. For you see, last week the US Supreme Court decided that it wasn't enough for a suspect to remain silent and refuse to answer questions for over three hours. In Berghuis v. Thompkins (No. 08-1470, 2010), the Court held that "Thompkins' silence during the interrogation did not invoke his right to remain silent." The Court also held that when Mr. Thompkins answered one question after nearly three hours of silence that he had waived his right to remain silent.
At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. Thompkins was “[l]argely” silent during the interrogation, which lasted about three hours. -- Berghuis v. Thompkins, 560 US ___ (2010)
After almost three hours, in which Mr. Thompkins remained silent, an officer asked Mr. Thompkins if he believed in God. After Mr. Thompkins nodded, the officer asked if he had prayed to God to forgive him for shooting the victim. Mr. Thompkins said "Yes."
Let's think about this for a second or two. Mr. Thompkins, by all accounts, was "largely" silent during the almost three hour long interrogation, but somehow that wasn't a clear and unambiguous exercise of his right to remain silent. What more did the police need? Are we now going to see more marathon interrogation sessions in which the police attempt to "beat down" a suspect's will?
So, according to the Supreme Court, we no longer have the right to remain silent. Instead you must tell the police you aren't going to answer their questions. How absurd is that?
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