Ever since the monumental decision Miranda v. Arizona, the phrase “you have the right to remain silent” has been given epic importance, from judicial decisions to pop culture to the street level interactions between police and criminals.  And up until Berghuis v. Thompkins, that right was fairly accessible, though ephemeral, protection.  Unlike the other protected right under Miranda warnings, the right to have an attorney present during questioning, the right to remain silent did not need to be explicitly raised in order to be invoked.  However, in Berghuis v. Thompkins, the Supreme Court held that the right to remain silent is not invoked until the defendant explicitly says that he wants to remain silent.  And, thus, until those words are uttered, the police are allowed to continue questioning.  The defendant in the Berghuis had been subjected to three hours of interrogation about a murder, but he barely spoke a word.  Besides a few head nods, and answering such questions as “would you like a mint”, he was steadfast in exercising his ability to remain silent.  However, he ultimately had a moment of weakness; after three hours, he answered only one substantive question, and that answer was used against him at trial, where he was found guilty.  The Court held that the right to remain silent was not implicitly raised simply by seemingly exercising it, i.e.  his continuing refusal to answer the many questions asked to him.  They further held that by answering that one substantive question, he adequately waived his right to remain silent, and gave up his protection.

Thus, the holding seems to be that the right to remain silent must be explicitly raised, but the waiver does not.  So, the rule to take from this case is: speak to remain silent, but say one word, any word, and it will be considered a waiver.

Berghuis v. Thompkins, — S.Ct. —-, 2010 WL 2160784 (2010).