Finally, in the case decided yesterday, June 2, 2010, Berghuis v. Thompkins the Court ruled that mere silence does not invoke the Miranda rights and that the suspects must invoke them unequivocally. In this case the accused, Van Chester Thompkins was arrested on a suspicion of drive-by shooting. During the police interview Thompkins stayed silent most of the time, however he did give some one word answers, and most importantly three hours into the interview he answered "Yes" to the question as to whether he'd pray that God would forgive him for shooting the victim. That one word statement was used against him in trial to obtain his conviction.
The court held that he had waived his right to remain silent by answering questions, and further that the police need not obtain an actual waiver of his Miranda rights from him, because a waiver can be inferred “from the actions andwords of the person interrogated."
So what this means in real life is that even though counterintuitive, you must speak up to assert your right to remain silent. And the magic words are: I WANT A LAWYER, or I WANT TO REMAIN SILENT. Just as important though is the fact that after you have said the magic words, you must actually remain quiet, as anything you say after that, as long as it was not coerced, will waive your request for a lawyer or your right to remain silent. If you ever find yourself having to be interrogated by the police tell them you want a lawyer, call me, and then say nothing until I get there.