If a suspect wishes to evoke his right to silence, he must, unambiguously invoke his right (Fifth Amendment) to silence, as well other rights under Miranda and communicate this to the police. According to Miranda, the suspect must have been specifically advised of these rights.
In the recent case of Berghuis, the Supreme Court has refined the meaning and scope of invocation 10 and waiver 11 of the Miranda right to silence. It stated that once the warnings and rights have been read out to him, the suspect must waive his rights before making any statement that can be used at trial. Alternatively, the suspect may plead the Fifth Amendment to silence, invoke the right to have a counsel present during questioning or both. All questioning by the police must cease once the suspect invokes any of these rights. 12
In summary, a suspect in custody must specifically waive his rights to silence by speaking up or must directly invoke his rights to silence by some unambiguous act. His silence in the face of questioning cannot be a clear and unambiguous invocation of his rights to remain silent. 13
In the latest attempt by the Supreme Court to clarify the reaches and implications of the rights enshrined under the Miranda doctrine, the Berghuis court held that:
- The invocation of Miranda right to silence by a suspect in custody must be unambiguous. Mere silence, even for an extended period of time does not constitute an invocation of the right to silence.
- A suspect’s waiver of the rights to silence may be implied once he has been sufficiently Mirandarized. Merely responding to an interrogator’s questions could be considered a waiver of the right to silence (the government still has to show that the waiver was voluntary, intelligent and knowing).
- Police officers are not required to obtain a waiver of a suspect’s right to remain silent before beginning the questioning session.
10 This is the act or process of petitioning for help or support. http://www.merriamwebster. com/dictionary/invocation
11 The act of intentionally relinquishing or abandoning a known right, claim, or privilege; also the legal instrument evidencing such an act. http://www.merriam-webster.com/dictionary/waiver
12 Berghuis v. Thompkins, 560 U.S 445 (2010)
13 Per Justice Kennedy, delivering the 5-4 opinion of the Supreme Court in Berghuis.