In the recent case of Berghuis v. Thompkins the U.S. Supreme Court ruled five to four that persons being interviewed by the police are required to articulate their answers to the Miranda warning that they have the right to remain silent.
This is certainly contrary to my intuition. If someone tells me I have the right to remain silent, I would assume that remaining silent is enough.
Justice Kennedy, writing for the majority, opined that Thompkins' mere silence in the face of questioning was not a clear and unambiguous invocation of his right to remain silent.
From the point of view of the questioning officer, requiring an explicit invocation of a right removes ambiguity. But how should suspects be informed that this is the case?
For the record,
Justice Sotomayer wrote the dissenting opinion, saying (1) that it is counterintuitive for defendants to speak after they are told they have the right to remain silent, (2) that in such cases detectives should presume that the suspects have invoked their rights to silence when they remain silent for almost three hours of questioning [as in this specific case], and (3), citing Miranda: "…the fact that an individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege."
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