You have the right to remain silent, so speak up.

The Fifth Amendment, which among other things protects us from having to testify against ourselves, if a cornerstone of American law. Enacted as part of the Bill of Rights on March 4 1798 to prevent the misconstruction or abuse of the government's powers, the amendment states:

No person shall be held to answer for a capital, or other infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or navel forces, or in the Militia, when in actual service in a time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; not shall private property be taken for public use, without just compensation.

On June 1, 2010, in a decision that might just crack the foundation, the United States Supreme Court held that to invoke your right to shut the heck up, you must specifically tell the police officer that's what you are doing. The case is Berghuis v. Thompkins, ___ US ____ (2010), and represents the further eroding of Constitutional rights and the landmark case of Miranda v. Arizona, 384 US 436 (1966).

Let's start with the basics. As anyone who's watched an American police show knows police officers must "read" a suspect his "Miranda rights" when he's arrested. Well, TV has it mostly right. The United States Supreme Court in Miranda determined that a suspect must be informed of his Constitutional rights - including the right against self-incrimination- before any custodial interrogation. This laundry list of rights includes the "right to remain silent." Now, to Mr. Thompkins's case.

In 2000 there was a shooting outside a Michigan mall. Samuel Morris died, and Frederick France was wounded. The suspect, Van Chester Thompkins, fled Michigan. He was arrested in Ohio a year later. Two Michigan officers traveled to Ohio, "Mirandized" Thompkins and questioned him for about 3 hours. Thompkins remained silent during most of the interrogation, but never specifically said he was asserting his 5th Amendment right to keep his mouth shut.

At approximately 2 hours and 45 minutes after it started, the following discussion occurred:

Officer Helgert asked Thompkins, "Do you believe in God?"
Thompkins made eye contact with Helgert and said, "Yes," as his eyes
"well[ed] up with tears."
Helgert asked, "Do you pray to God?"
Thompkins said, "Yes."
Helgert asked: "Do you pray to God to forgive you for shooting that
boy down?"
Thompkins said, "Yes." And looked away. _____ US ____ (2010).

Thompkins refused to confess in writing, and the interrogation ended about 15 minutes later.

The trial court allowed the presentation of the testimony. Thompkins incriminating statement - that he prayed to God to forgive him for killing Samuel Morris- was presented to his jury. He was then convicted of first degree murder, assualt with intent to commit murder and firearms-related offenses. He was sentenced to life in prision without the possibility of parole.

Thompkins appealed his conviction arguing that he asserted his 5th Amendment rights by actually staying silent and the officers had a duty to stop questioning him long before his confession. As a result, the jury should not have heard the interrogation testimony. Ultimately, the case came before the United States Court of Appeals for the Sixth Circuit. It reversed the conviction noting that staying silent for over 2 hours invoked the protection of the 5th Amendment. It found that Thompkin's "persistent silence" was "a clear and unequivocal message to the officers: Thompkins did not wish to waive his rights." 547 F.3d 572, 586 and 88 (2008).

In 2009 the United States Supreme Court agreed to consider the matter due to the Constitutional issues it presented. In its June 1, 2010 opinion, the Court found that Thompkins hadn't asserted his right to remain silent because - wait for it - he didn't say anything.

The Court previously found the right to counsel, a 6th Amendment right, must be unambiguously asserted in the case of Davis v. United States, 512 US 452, 459 (1994). So, statements like "I think I want a laywer" or "I should have an attorney" probably don't trigger your right to counsel. The Court didn't believe a different standard should apply to 5th Amendment v. 6th Amendment rights. And because requiring police officers to stop interrogations where the assertion of a Constitutional right is unclear "would place a significant burden on society's interest in prosecuting criminal activity" the Court held that the invocation of the right to remain silent must be clear and unequivocal. Thus, under Thompkins, a defendant wishing to keep his mouth shut MUST specifically say he's asserting his 5th Amendment rights and wants to say nothing before the officers have an obligation to stop questioning him.

Really?

While the Thompkins decision is in line with recent court cases, requiring someone to say "I assert my 5th Amendment rights against self-incrimination" before the Constitution protects him from further interrogation seems a bit farcical.

The average criminal defendant doesn't read United States Supreme Court decisions. He probably doesn't listen to any of the news channels or surf news websites for recent case law. What the Thompkins decision means is that a person going through the criminal justice system has to work to obtain the rights our founders believed were "self-evident." I, for one, will mourn the continued erosion of the procedural safeguards that protect us from our government.