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Supreme Court: Speak Up for Your Right to Remain Silent – Part II

By Richard J. Lehmann – Concord, New Hampshire Lawyer

Incomplete knowledge of the Fifth Amendment privilege, the police procedures spawned by case law interpreting it, and misleading demonstration of those rights by movie directors, has led to broad misunderstanding of the meaning of the oft-repeated words, beginning, “You have the right to remain silent….” The Supreme Court’s recent decision in Salinas v. Texas, may change some of these rules and will be discussed in another installment of this series. The historical rules are discussed below.

People often believe that they cannot be convicted of a crime if the police did not “give them their rights” before they made a statement. This is simply incorrect for a number of reasons. First, the police do not “give” anyone their rights. The Constitution does that, and you do not have to wait for police to “give” them to you. If you are an American, you were born with them, if you are a naturalized citizen, you gained them when you took the Oath of Allegiance, and if you are simply present in the United States, you still have some of these rights. So the notion that the police “give” you anything is a misnomer. The police only “advise” you of the existence of these rights so that if you choose to make a statement, your waiver of these rights is knowing and voluntary.

Second, a defendant’s rights are only violated if the police engage in “custodial interrogation.” Cases sorting out the meaning of “custodial interrogation” could, and in fact do, fill bookshelves full of judicial decisions. The easiest way to understand the meaning of “custodial interrogation” is to examine each word individually. As a general rule, a person is “in custody” if he or she is not free to leave. A person who has been formally arrested, but not yet bailed, is clearly “in custody.” A person who voluntarily approaches a police officer on the street to talk, clearly is not “in custody.” Between these two extreme lies an infinite number of variations, and drawing a line between “free to leave” and “in custody” can be complicated. Unfortunately, the situations tend to unfold quickly and often do not allow a person to do what should be done whenever a person becomes the focus of a police investigation: consult an experienced criminal lawyer.

The meaning of “interrogation” also can be unclear. If the police directly ask a question and push for an answer, then clearly this constitutes interrogation. If a person simply blurts out a statement, not in response to any questioning, then that statement is not the product of interrogation, and no constitutional violation occurs. As with the “in custody” determination, interrogation tends to happen quickly and in an environment in which consultation with a lawyer is difficult or impossible. Since Griffin and Miranda, courts have required no special words to be used to assert the Fifth Amendment privilege. Silence in the face of police questioning has been considered an assertion of the privilege.

Third, people routinely misunderstand the consequences of a Miranda rule violation by police. If the police violate a person’s constitutional rights, the suspect is not entitled to a get-out-of-jail-free card. The remedy is that the evidence is “suppressed,” meaning police are not allowed to use the evidence obtained in the statement against the defendant. If the police can prove their case in court through other evidence, the defendant can still be convicted and punished as if no constitutional violation had occurred. In fact, this is precisely what happened to Ernesto Miranda, the man whose case led to the Miranda decision. After the United States Supreme Court revised his conviction because he was not advised of his rights prior to being subjected to custodial interrogation, he was subsequently retried without his statement being used against him, and was convicted and imprisoned.

These rules have served the competing needs of a society interested in apprehending and prosecuting lawbreakers with the respect afforded to our constitutional rights for many years. The recent Supreme Court decision in Salenas v. Texas may change these longstanding rules.

If you have been charged with a crime or believe your rights have been violated, you should consult an experienced criminal lawyer at Douglas, Leonard & Garvey, P.C. at 1-800-240-1988 or fill out our online contact form for a case evaluation.


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