“Prior to any questioning, [a] person must be warned that he has a right to remain silent…” Miranda v. Arizona, 384 US 436, 444 (1966). “Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.”  Id. at 445.

If you are arrested, and the police want to question you, they must give you the Miranda “warnings” – that you have the right to remain silent and the right to an attorney; and that your statements can be used against you in court.  For over forty years, courts have interpreted the Miranda case to mean that a criminal suspect must affirmatively give up those rights before the police could elicit incriminating statements from them.  But now, the Supreme Court has changed all of that with its recent decision, Berghuis v. Thompkins (2010 WL 2160784).

In Berghuis, a murder suspect was arrested and given his Miranda warnings.  However, instead of affirmatively stating that he wanted to remain silent, or to speak to an attorney, he simply said nothing to the police (he remained silent).  After the police had interrogated him for almost three hours, the man made incriminating statements.  These statements were then used to convict this man of murder.

So, how can you avoid Mr. Berghuis’ fate?  How can you make sure that you do get the right to remain silent?  The Supreme Court says you must actually tell police that you want to remain silent (or ask for an attorney). Nothing else will do – so, don’t let the police get around your rights – tell them you want to see an attorney, and that you do not want to talk to the police.  The sound of your silence must be preceded by the sound of you asserting your rights.