The Miranda warning and the protections it provides are so fundamental that most people could recite the litany of rights just from their experience watching popular crime dramas like Law and Order on television. One of the most important rights protected by the Miranda warning is the Fifth Amendment right against self-incrimination (i.e. right to remain silent).  The Fifth Amendment of the U.S. Constitution provides that no person shall be compelled to be a witness against himself in a criminal trial.  Traditionally, the police would give a suspect the Miranda warning and then ask the suspect if they understood the rights and wished to waive them.  This waiver process typically involved signing a document indicating that the suspect understood the rights and was making a knowing and voluntary waiver of those rights. 

However, the U.S. Supreme Court, in a case concerning a Michigan man Van Chester Thompkins, limited the Miranda vs Arizona decision effectively eroding these protections in ruling that even a prolonged silence of almost three hours was not sufficient to constitute an invocation of the right to remain silent.  The court found that the police may continue to question a suspect despite the suspect’s silence unless the suspect explicitly invoked his or her right to remain silent.   The defendant in the case sought to have incriminating statements suppressed that were made after nearly three hours of silence during police questioning.  Thompkins that his silence while being questioned by police was itself an invocation of his right to remain silent under the 5th amendment.  The defendant argued that his incriminating statement made after nearly three hours of silence should have been suppressed.  The Court held that because the defendant had never explicitly invoked his right to remain silent his statements were admissible against him.

In the case, the police read Thompkins his Miranda rights but never asked him to waive those right either orally or in writing.  Thompkins was silent for nearly two hours and forty-five minutes of questioning about the incident.  Police eventually started asking Thompkins religious based questions attempting to use Thompkins’ faith as a motivation to provide an incriminating statement. They asked Thompkins if he believed in God; if he prayed to God; and if he prayed to God for shooting the victim. Thompkins responded yes to all three questions. The answer to the third question was used against him at trial despite attempts to have the statement suppressed.  The Thompkins case was decided on a 5-4 decision. Justice Sonia Sotomayor in her first major dissent, said the decision “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.”

The Thompkins decision makes it clear that it is important that anyone arrested expressly invoke their right to remain silent and to have all questioning cease.  A person accused of a crime should never subject himself or herself to prolonged police interrogation without the benefit of an experienced Florida criminal defense attorney.  If you are arrested for a criminal offense you should clearly state that you wish to invoke your right to remain silent and that you want to speak to your attorney.  You should provide no information beyond informing the police that you are invoking your Miranda rights.  The information you provide police during an interrogation will never be used to help you remain free but will definitely be used to help put you in jail.