Legal Commentary

Remaining silent is not an invocation of the right to remain silent.

''Thompkins did not say that he wanted to remain silent or that he did not want to talk to police,'' [wrote Justice Kennedy for the Court]. ''Had he made either of these simple, unambiguous statements, he would have invoked his 'right to cut off questioning.' Here he did neither, so he did not invoke his right to remain silent.''....

''Criminal suspects must now unambiguously invoke their right to remain silent -- which counterintuitively, requires them to speak,'' [wrote Justice Sotomayor for the dissenters]. ''At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.''

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Full post as published by Althouse on June 01, 2010 (boomark / email).