Miranda+..+new+interpretation

=Legal Terms - Definitions= ===

=== Berghuis v. Thompkins

http://scholar.google.de/scholar_case?ca...4QgAMoADAA

A quick summation ..:::

In order to invoke your constitutional rights, you are required to do something: invoke your rights What does that mean ..??? You must make a clear and unequivocal statement to the police that you are exercising your rights under the Constitution

Note that silence is no longer an invocation of rights, following the Supreme Court's decision in Berghuis v. Thompkins There are so many things silence could mean, aside from, well, silence, and so just shutting up isn't good enough anymore Besides, as the Berghuis case has shown, even a fellow inclined to just shut up may eventually crack under pressure and cease his just shutting up It happens A lot

Now for another nuanced detail that seems to confuse so many people The police do not have to read you Miranda rights for you to be lawfully arrested, ........ What may not be as clear is that the police do not have to read you Miranda rights until you are subject to a custodial interrogation In other words, it doesn't kick in until you are in custody

Custody means that a reasonable person would understand that he is not free to leave To the Supreme Court, a reasonable person is one who has no fear of saying to police officers, "Gentlemen, as much as I enjoy your company and pleasant conversation, I no longer feel like engaging with you, so I will now be on my way," without concern that they will thereupon be beaten, tasered, tackled, kicked in the head a few times until their orbital socket is fractured beyond repair, or shot

At the time police take you into custody, you have at least two immediate constitutional rights at risk -- You have the right to remain silent under the 5th Amendment, and the right to counsel under the 6th Amendment These are separate rights, even though they are put at risk at the same time

Nonetheless, you have these rights even if the police have failed to tell you so, whether because they will claim you weren't yet in custody or they simply don't want to By realizing this up front, you will be prepared to assert your rights regardless of whether the police give you Miranda warnings

They are yours to use or lose

The invocation of these two crucial rights must be made clearly and unequivocally. That means that there can be no doubt, from the words spoken