>>204The Fifth Amendment to the United States Constitution (part of the Bill of Rights) codifies the right to silence. The Supreme Court has ruled that suspects questioned while in police custody must be told of their rights in what have become known as Miranda warnings. Miranda warnings are required to be given during the questioning of a suspect prior to actual arrest, for example during the execution of a search warrant.
However, if the state feels the need, a suspect or subpoenaed grand jury witness may be given a grant of immunity and compelled to give testimony under oath. The interplay of local, state, and federal law is complicated in this area. A grant of immunity removes the possibility of the jeopardy of self incrimination, and therefore removes the right to remain silent to avoid self incrimination. (This is not to be confused with the issue of legally privileged communications, such as those between a lawyer and client, doctor and patient, and clergy and parishioner.)
There is a conflict between Miranda and Raffel v United States that remains unresolved by the U.S. Supreme Court. In Raffel v U.S., and in law enforcement practice, the court finds that at the very moment a suspect cooperates and answers questions and/or consents to search, the suspect gives up those rights and must continue that cooperation and consent through to that person's possible/eventual arrest, trial and judgment. Therefore, in the United States, by cooperating with police in any way prior to arrest, a person gives up Fourth and Fifth Amendment rights that under Raffel technically cannot be reclaimed later, after arrest and Miranda notification of those rights. This in reality renders Miranda warnings rather limited in effect, since police do not have to advise a person of his or her rights until after he or she self-incriminates and/or is arrested; if the person has cooperated prior to arrest, then the arrestee has already surrendered most of the rights of which the police are advising that arrestee.
In the U.S., the only way for one to protect one's rights fully is to refuse answering any questions beyond giving one's name and identifying papers if requested and to refuse giving consent to anything (such as a search) prior to one's arrest. Law enforcement officials do not have to tell civilians the truth on any subject. They can make any promises and claims they like in order to induce a person to incriminate herself or himself or to allow the officer to perform a search, and law enforcement officials are not bound by anything they promise to suspects or witnesses (i.e. promises of aid or protection). Raffel continues to be upheld in U.S. Courts despite the apparent contradictions with Miranda. In Re Grand Jury Subpoena to Sebastien Boucher, the U.S. District Court for Vermont ruled that because the defendant had already cooperated as far as he had and already potentially incriminated himself, by stating his ownership of his laptop and providing law enforcement with partial access to it prior to his arrest, that he must now surrender complete access to all information on that laptop, even encrypted and potentially self-incriminating or confidential information. Because the defendant had cooperated in part already, the Court ruled that the defendant must continue cooperation and provide the decrypted and potentially harmful information to the government. This is particularly noteworthy since prior U.S. Supreme Court rulings normally protect suspects even after conviction from the requirement of revealing self-incriminating information such as locations of their victims' bodies and/or property.
Some countries including Canada have carefully avoided such contradictions by clearly making inadmissible in court any information/statements provided by the suspect prior to advisement of their rights to silence and representation.
In June 2010 the U. S. Supreme Court announced its decision in Berghuis v. Thompkins, holding that a suspect's mere "silence during the interrogation did not invoke his right to remain silent." This decision was the third time in the same term that the Supreme Court placed limits on Miranda rights. In the dissenting opinion, Justice Sotomayor called the majority's decision, "a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided during custodial interrogation."