Keeping up on the “Right to Remain Silent”

posted by Judge_Burke @ 20:24 PM
September 26, 2011

This week the Minnesota Supreme Court in a 4-3 decision ruled that a prosecutor may comment to the jury about a defendant’s decision not to respond to a letter asking the then suspect to answer some questions posed by the police as part of their investigation. State of Minnesota v. Borg   Decisions like this  make it increasingly difficult for busy overworked trial judges to keep up on Miranda decisions and the law surrounding the right to remain silent. Fortunately  a law professor who teaches at  Marquette Law School has a solution which he posted on his blog. Professor Michael  Cicchini wrote: 


I never thought the Miranda warning was all that useful.  In fact, it actually raises more questions than it answers.  For example, the warning tells a suspect that anything he says can be used against him in court.  But asking for an attorney is saying something, isn’t it?  Could the prosecutor later use such a request against him?  (After all, television teaches us that only guilty people “lawyer-up.”)  And what if the suspect wants to remain silent?  Could his silence be used against him in court?  TheMiranda warning fails to answer these and many other questions.

 Making matters even worse for the would-be defendant is Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).  In a confidence inspiring 5-4 split, the Court ruled that a suspect cannot actually exercise the right to remain silent by remaining silent—even if that silence lasts through nearly three hours of interrogation.

 In response to all of this chaos, I’ve drafted a new and improved Mirandawarning.  Granted, this warning would be a bit more cumbersome for police to deliver, and still wouldn’t answer every possible question.  But it would be an improvement.  Here it goes:

“I first have to read you these rights before you tell me your side of the story, okay?  First, you have the right to remain silent.

1.    Actually, you really don’t have the right to remain silent, unless you first speak. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).

2.    But if you choose to speak so that you can remain silent, you had better not be ambiguous.  If you tell me, for example, “I don’t got nothing to say,” that is ambiguous to me, and not because of the double negative.  Your ambiguity will be construed in my favor, and I am allowed to continue my interrogation. United States v. Banks, 78 F.3d 1190 (7th Cir. 1996). 

3.    On the other hand, if am ambiguous when I read you your rights, my ambiguity will also be construed against you.  This is only fair.  Florida v. Powell, 130 S. Ct. 1195 (2010).

4.    If you refused to answer questions posed to you before I began reading you your rights, your pre-Miranda silence can be used against you at trial, should you testify in your own defense.  So, you might want to talk to me now so you don’t look guilty later.  Jenkins v. Anderson, 447 U.S. 231 (1980). 

5.    But, anything you say to me can be used against you in court.  (I’m not sure if this includes the things that you say in order to remain silent.)

6.    You have the right to an attorney. 

7.    But if you choose to exercise your right to an attorney, once again, you had better not be ambiguous about it.  Don’t ask me, for example, “Could I get a lawyer?”  This might seem like a reasonable request to you, since you’re handcuffed and have no other way to actually get the nameless attorney that I just offered you.  However, this statement is also ambiguous and is not sufficient to invoke your rights. United States v. Wesela, 223 F.3d 656 (7th Cir. 2000).

8.    If you can’t afford an attorney, one will be appointed for you, unless your income happens to be above the 1980 poverty line.  Then you might be on your own. 

9.    And don’t say “I can’t afford a lawyer but is there any way I can get one?”  As you might have guessed by now, that is completely ambiguous, and lacks “the clear implication of a present desire to consult with counsel.”  The interrogation, therefore, must go on.Lord v. Duckworth, 29 F.3d 1216 (7th Cir. 1994).

Now, do you understand these rights as I have read them to you, and would you like to take this opportunity to help yourself, waive your rights and tell your side of the story.

10 Responses to “Keeping up on the “Right to Remain Silent””

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  3. Judge Bonnie Sudderth Says:

    This is an excellent commentary on the intricacies of Miranda warnings and the use of the Fifth Amendment privilege in the criminal context. I have added this article as a link to my blog on the use of the Fifth Amendment privilege in civil cases.

  4. Use of the Fifth Amendment Privilege in a Civil Case « Judge Bonnie Sudderth Says:

    [...] (For more information about the use of the Fifth Amendment privilege and Miranda warnings regarding its use in the criminal context, see [...]

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