Right to silence - Protecting only the guilty Dissertation

Right to silence - Protecting only the guilty - Dissertation Example It would also be necessary in this review of literature to consider the situation that would arise should the rule be abolished in its entirety. Besides, it would also be appropriate to assess the effect on legal professional privileges as a result of the change in rules and its impact on the conduct of criminal cases. Present status of the right to remain silent: Under the laws of the United States, a person cannot testify for himself. Thus, under the Fifth Amendment of the US Constitution, a person cannot be compelled in any criminal case to be a witness against himself.† (U.S. Constitution: Fifth Amendment, 2011). Thus it is well within the ambit of a person’s Fifth Amendment rights to refuse to answer any questions put forth by a policemen or any law enforcement authority to assess a person’s complicity or otherwise in a crime. A person could refuse to testify not only in order to save himself from the possible use of his stated words against himself, or even to disapprove his involvement, or state a claim of his innocence in a given case scenario. However, the laws are now changing and there are proposals to bring about reforms in the aspect of the right to remain silent during questioning. In the landmark case of Miranda v Arizona 384 U.S. 436 (1966), the Court reiterated the suspect’s rights under Fifth and Sixth Amendment of US Constitution. A suspect does have a right to remain silent and also has to be informed that whatever statements he makes could be used as evidence against him during trial proceedings. Besides, a suspect has the right to a lawyer, who could act as his counsel and be present during interrogation of the suspect.†You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?† (What are your Miranda Rights?, 2010). However, it is seen that in recent times, there are proposals to change or reform the concept of the right to silence enjoyed by suspects in cases. In the year 2010 case of Berghuis v. Thompkins, the defendant, Thompkins accused of first degree murder failed to invoke his Miranda rights to remain silent and to counsel because he failed to do so "unambiguously." Moreover, the Supreme Court reasoned that Mr. Thompkins waived his Miranda right to remain silent when he "knowingly and voluntarily" made a statement to the police. The Supreme Court further held that, even if Mr. Thompkins' counsel was ineffective, he cannot show he was prejudiced by counsel's deficient performance – a prerequisite to establishing that his Sixth Amendment right was violated.† (Thompkins, 2009). This was indeed a departure from the Miranda judgment regarding enforcement of Fifth Amendment laws, and is a decision by the United St ates Supreme Court in which the Court considered the position of a suspect who understands his or her right to remain silent under Miranda v. Arizona and is aware he or she has the right to remain silent, but does not explicitly invoke or waive the right. The changes in the law are evident in the fact that Miranda ruling could not be enforced in the Sebastien Boucher case. In a recent case of In re Grand