On October 16, 2010, NBC aired the episode of Outlaw titled “In Re: Tracy Vidalin.”  The show follows a former Associate Justice of the Supreme Court of the United States, played by Jimmy Smits, who resigned from the Supreme Court to begin his own law firm.

The episode centers around Jimmy Smits’s character, Cyrus Garza, defending a girl accused of felony burglary and felony murder.  The police inform the girl of her Miranda Rights but she does not verbally invoke the right to counsel or the right to remain silent.   The video recording of the suspect in custody is entered as evidence in the trial.  The prosecution states that the video tape includes the girl’s confession through a one word response of “yes” to the ambiguous question, “…is that something you should ask forgiveness for?”  The suspect’s response occurrs twenty-one hours and forty minutes into questioning.  She remains silent for the entire time prior to responding with the single word “yes.”  The defense files a motion to suppress the tape expressing that the statement is coerced because the suspect is subjected to questioning for such a long period of time.

The defense’s motion to suppress relies on the invocation of the right to remain silent.  The defense states that the accused intended to remain silent as shown by her silence in response to all questions for a period of time of almost one day.  The court rejects the exclusion of the video tape under the idea that simply remaining silent does not invoke the right to remain silent.

The episode includes a discussion between Garza and the judge for the case regarding the proper invocation of the right to remain silent, which includes references to Garza’s fictional Supreme Court career.  In American case law, the Supreme Court of the United States recently decided a case that addressed the issue of invocation of Miranda Rights.  In Berghuis v. Thompkins, the Supreme Court held that a suspect must state that he is relying on these rights in order to invoke them.  Until the invocation is made, the police or agents of the government can question the suspect.  Thus, the act of remaining silent is not sufficient to invoke the right to silence.

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