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Invoking Miranda Rights

Indeed, you have the right to remain silent and the right to an attorney when taken into custody, whether being interrogated or arrested for a crime. Law enforcement’s responsibility to advise you of this right is known as the Miranda warning. You derive these rights from the Fifth Amendment of the Constitution, which protects you against self incrimination and the Sixth Amendment, which guarantees your right to legal counsel. However, to exercise these amendment rights, you must invoke them.

The U.S. Supreme Court’s ruling in Miranda v. Arizona clarified your Fifth and Sixth Amendment rights and the term “Miranda warning” emerged, which was coined after that case. However, another less well-known case, Berghuis v. Thompkins set the precedent for invoking these rights.

The dictionary defines “invoke” as “to declare to be binding or in effect.” Until you declare your right, it does not take effect. In 2010, the U.S. Supreme Court heard the appeal on Berghuis v. Thompkins, where the defendant Thompkins was under interrogation about a shooting and killing a victim. Thompkins was mostly silent during the three-hour interrogation but never voiced his desire to remain silent or to speak with a lawyer. Toward the end of the interrogation, he answered “yes” when asked whether he prayed to God to forgive him for the shooting. His criminal defense lawyer argued that his statement should be suppressed because he had invoked his Fifth Amendment right to remain silent, which was apparent because of his silence throughout most of the interrogation. However, the Supreme Court ruled that Thompkins failed to invoke his right because he did not voice that he wished to remain silent or did not want to talk. The court decided the moment he answered, he waived his right.

Always invoke your right. Also, when you face criminal charges in Maryland, requesting a defense attorney from the outset does more than just protect your right to remain silent. It allows investigation, case strategy planning and preparation, all of which increases your chances at a favorable outcome.

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