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June 03, 2010

The United States Supreme Court Says You Must Speak to Preserve Right to Remain Silent

The United States Supreme Court in Berghuis v. Thompkins took a significant retreat from the privileges against self incrimination long afforded to individuals subjected to custodial interrogation through the Miranda decision of the 1960s. In Thompkins, the Defendant was silent for almost 3 hours before making an inculpatory statement. During the interrogation, the defendant also refused to sign a written waiver of his Miranda rights. The Miranda decision had long recognized a defendant’s right to remain silent and it further required the State to carry a heavy burden to prove that a defendant knowingly waived this right and other constitutional rights if the defendant ultimately made a statement since “waiver cannot be presumed by the fact that the defendant eventually made a statement.” The court’s decision in Thompkins basically shifts the burden from the State to prove waiver of Miranda rights to the defendant to verbally announce that he wishes to invoke his right to remain silent. David Raybin was quoted in a recent article discussing this case in yesterday’s Tennessean
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