Have you ever watched an episode of COPS on Saturday night and wondered how you would respond to that infamous diatribe uttered by law enforcement when they place the alleged wrongdoer in handcuffs? It goes something like this: “you have the right to remain silent; anything you say can and will be used against you in a court of law; you have the right to talk to a lawyer and have him present with you while you are being questioned; if you cannot afford a lawyer, one will be provided for you at government expense.” While our advice to you would generally be to remain silent, ironically, based on the holding of a recent decision from the U.S. Supreme Court, you must actually first speak to effectively preserve your right to remain silent.

In the recent Supreme Court case Berghuis v. Thompkins, 130 S. Ct. 2250 (2010), Michigan law enforcement officers interrogated Van Chester Thomkins about a shooting. Before beginning interrogation, law enforcement advised Thomkins of his rights in full compliance with Miranda v. Arizona, 384 U.S. 436 (1966). At no point in time did Thomkins say that he wanted to remain silent, that he did not want to talk to police, or that he wanted an attorney. For the most part, Thomkins remained silent throughout the three hour interrogation. However, near the end of the interrogation, Thomkins spoke, responding affirmatively when asked if he prayed to God to forgive him for the shooting.

Thomkins sought to have the statement suppressed, arguing that by remaining silent he had invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his statements were made involuntarily. The case made its way through State and Federal Appellate Courts and finally arrived before the U.S. Supreme Court. The U.S Supreme Court held that Thomkin’s silence during the interrogation did not invoke his right to remain silent. The Supreme Court continued noting that a suspect’s Miranda right to remain silent must be invoked unambiguously. Consequently, Thomkin’s answer in the affirmative that he prayed to God to forgive him for the shooting could be used against him in Court.

Accordingly, if you ever find yourself in a situation with law enforcement telling you that you have the right to remain silent, make sure you tell law enforcement that you will not be speaking until you have had the opportunity to retain legal counsel before maintaining your silence. Otherwise, you may discover that you have incriminated yourself by responding to what you believe is a harmless question under the mistaken impression that you have preserved your right to remain silent.