Quote:
Originally Posted by jackie@sintropolis
@ShysterJon - the "bust card" isn't really completely accurate any longer after Berghuis v. Thompkins is it? I mean, even a simple utterance such as "May I go to the bathroom", if uttered after you invoke your right to silence and/or to counsel can be construed that you have voluntarily given up those rights and are willing to speak . . . you have to reassert your invocation if you make ANY utterance or answer ANY question, such as "would you like a glass of water" - otherwise, they can just keep asking you questions and interrogate you almost indefinitely if I understand the ruling correctly. I feel a lot of people think that they are protected by those magic words but then they continue to speak (even to ambiguous matters) thinking that they can't use anything against them . . the bottom line here is when you STFU, make sure you actually STFU and STAY shut up - becasue if you open your mouth for ANYTHING you'll need to reassert the right to silence and ask for your attorney AGAIN . . .
. . But here's the catch 22 noted by Sotomayor (and it is a biggie) - "[S]uspects must now unambiguously invoke their right to remain silent — which, counter-intuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so." .
So what do we do post Berghuis v. Thompkins? I know I am probably over-thinking it, but still, Berghuis v. Thompkins stripped a big chuck out of Miranda and it muddied the waters . . .
Anyway, just thought I would ask your opinion.
Kisses,
- Jackie |
I don't think the U.S. Supreme Court's recent holding in
Berghuis v. Thompkins conflicts with what's stated on the ACLU Bust Card. The first line of the Bust Card states: "You have the right to remain silent. If you wish to exercise that right, say so out loud." Without trying to oversimplify matters, that's essentially the Court's holding in
Berghuis, so you may be reading the case's holding a bit too broadly.
The holding of
Berghuis is that a suspect's silence during interrogation does not invoke his right to remain silent. But under
Berghuis, a suspect being interrogated can still remain completely silent (that is, never verbally invoke his right to silence and, in fact, say nothing material at all) without fear because he will never make a statement that can be used against him because he makes NO STATEMENT AT ALL. In such a case, the State would not be permitted to offer evidence that the defendant said nothing. For example, an interrogating officer may not testify at trial, "I asked Joe Bob if he lopped off his grandmother's head, and he didn't deny it." Such a statement should cause the defense counsel to pull a penalty flag out of his back pocket and ask for a mistrial.
But I can see advantages in verbally and unequivocally asserting one's right to remain silent. The cops could terminate the questioning because they might think continuing won't get them anywhere. Or asserting the right to silence could be proof of a lack of waiver if the cops continue the questioning to wear the suspect down and the suspect makes a statement indicating guilt.
Bear in mind the Fifth Amendment protects us from the use of statements we make that are INCRIMINATING. In other words, the protection applies when a suspect says or writes something relevant to the offense (or some collateral issue, such as credibility) and the statement is material to guilt (that is, the statement makes it more likely that the suspect is guilty).
In your example, saying "May I go to the bathroom?" isn't incriminating because it's not relevant or material. The jury (hopefully) won't think,
Hey, a dude who needs to pee MUST be guilty! By contrast, in
Berghuis, the cop asked the suspect, "Do you pray to God to forgive you for shooting that boy down?," to which the suspect replied, "Yes." That statement was relevant and material, and it was the incriminating statement that was at issue in the appeal.
You also believe
Berghuis may prolong interrogations. I guess that's possible. But the law before and after
Berghuis is that the cops can question a suspect for a reasonable period of time, whether or not the suspect verbally invoked their right to silence. Prolonged questioning to wear the suspect down to try to get him to make damaging admissions continues to be contrary to constitutional protections. (The suspect in
Berghuis was questioned for just three hours before he made the incriminating statement.) Of course, a suspect may end questioning at any time by invoking his right to counsel by saying something like, "I will not answer any questions until I have consulted with my attorney." Once a suspect clearly and expressly invokes his right to counsel, the questioning should stop. That rule remains unaffected by
Berghuis.
Here's the link to the article to which you cited:
Wikipedia, Berghuis v. Thompkins
