In a narrowly split decision, the Supreme Court’s conservative majority expanded its limits on the famous Miranda rights for criminal suspects on Tuesday – over the dissent of new Justice Sonia Sotomayor, who said the ruling turned Americans’ rights of protection from police abuse “upside down.”
Justice Anthony Kennedy, who wrote the majority opinion, said a suspect who goes ahead and talks to police after being informed he doesn’t have to has waived his right to remain silent. Elena Kagan, who has been nominated by President Barack Obama to join the court, sided with the police as U.S. solicitor general when the case came before the court. She would replace Justice John Paul Stevens, one of the dissenters.
A right to remain silent and a right to a lawyer are at the top of the warnings that police recite to suspects during arrests and interrogations. But Tuesday’s majority said that suspects must break their silence and tell police they are going to remain quiet to stop an interrogation, just as they must tell police that they want a lawyer.
(h/t to EveryDayNoDaysOff for the link) Now, on the surface this looks rather twisted. It also looks like I might be agreeing with the Wise Latina® Justice:
“Criminal suspects must now unambiguously invoke their right to remain silent – which counterintuitively requires them to speak,” she said. “At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.”
And to an extent, I am because yes, it doesn’t seem very logical that you must speak in order to remain silent.
But as with all things, the devil is in the details. I’m arm-chair quarterbacking here, and I am not a lawyer… I admit I don’t have the time to read the entire case, just going on what the Washington Post relays. But even in that, there is some important detail if you dig down.
The ruling comes in a case in which a suspect, Van Chester Thompkins, remained mostly silent for a three-hour police interrogation before implicating himself in a Jan. 10, 2000, murder in Southfield, Mich. He appealed his conviction, saying he had invoked his Miranda right to remain silent by remaining silent.
[…]
The officers in the room said Thompkins said little during the interrogation, occasionally answering “yes,” “no,” “I don’t know,” nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for “shooting that boy down,” Thompkins said, “Yes.”
He was convicted, but on appeal he wanted that statement thrown out because he said he had invoked his Miranda rights by being uncommunicative with the interrogating officers.
Ah! There’s the details. You can’t pick and choose folks. You either stay silent or you talk — they are mutually exclusive states. This guy talked, thus by definition he’s not remaining silent. Maye he didn’t talk a lot, maybe he didn’t answer every question, but he still talked. I would believe a reasonable person would agree that if someone is talking, they’re not silent. If he’s cherry picking when he exercises his right, how is the questioner supposed to interpret that silence? As exercising of the right to remain silent? As just taking a few minutes to collect your thoughts before answering? That silence is your answer? It’s too ambiguous, and law isn’t a realm for ambiguity.
As far as I can tell, this ruling doesn’t appear to be as horrible as some wish to make it out to be. In this case, Thompkins evidently waived his right to remain silent by well… not remaining silent. Interspersing moments of silence amongst your lack of silence cannot be assumed to be an invocation of the Miranda right.
Put it this way, ever send an email to someone but you don’t get a reply? If you’re not expecting a reply that’s one thing, but let’s say in that email you asked the recipient a question. If you don’t get a reply to your emailed question, what do you assume? That lack of reply is silence, but what does that silence mean? Maybe the email never made it (e.g. mail server problems). Maybe the email got intercepted by anti-spam filtering. Maybe the recipient is out of the office and not checking email until their return next week. Maybe they’re researching the answer to your question. Maybe they’re slacking off. Maybe they don’t like you and don’t want to respond to you, ever. Maybe they just haven’t gotten around to it. Who knows what the reason could be for the lack of reply, for that silence. Should you take that silence to mean some particular thing? Well, you know what they say about “when you assume”. We do much better when there is explicit response, even if it’s to say “Hey man, not going to answer your question, stop emailing me.” because then at least you know instead of hanging in ambiguity. I would think the same applies to this Thompkins case, even tho on the surface yes, it seems odd to have to speak up to remain silent.
Stuff From Hsoi 
Hsoi,
I think I’m going with the majority and you on this one.
A positive invocation by of a criminal of their rights is the correct way to do it.
It informs the police where the line is in no uncertain terms. It also indicates that the criminal fully understands their rights.
I also think this is on par with asking for an attorney or asking to speak to your attorney. If you don’t ask, are the cops supposed to read your mind and provide one?
Personally I plan on asking to speak to an attorney if I’m ever questioned by the cops for anything more then a traffic ticket.
Because while the cops should respect my rights, it is up to me to make sure they do.
I think the key here is an attempt to remove the potential for an ambiguous state. It’s enforcing explicitness, which IMHO is generally a good thing.
Yes on the surface this seems to be an oxymoronic situation, but examining the details of the case, it really isn’t.
I too agree that this is a positive ruling, because of the implications. The biggest implication now is simply by saying, “I am invoking my right to remain silent.” The police must cease asking questions, note the opinion of Kennedy, “in order to stop the interrogation”. That’s a POSITIVE in my book, because it means that verbal entrapment or tricky questions must stop or they become fruit of the poisonous tree and can be thrown out in court.
I think I also agree with your interpretation, Hsoi, that remaining silent, was remaining silent. You can’t simply decide to start talking and expect to remain silent. Heck, I’ve read Miranda cards, they clearly state, “You have the right to remain silent. Anything you do say can and will be used against you in a court of law.” Gee, that seems pretty clear.
I maintain this is a good ruling for clarification. I believe the police do the best job they can, but I’ve really got no love or support for helping them circumvent due process. Their job is catching criminals and the way it, unfortunately, works now is that it’s your job to prove you didn’t do it.
-Rob
To clarify, your second paragraph… is that “that remaining silent, was remaining silent” or was it to be “was not remaining silent”? Just wanting to be sure I’m reading your correctly.
To clarify, I think that your right to “remain silent” meant that you remained silent, I think under the previous understanding that speaking means you were waiving your right.
With the new ruling, I like that you can invoke your right to remain silent, verbally. That means that there can be no doubt you have invoked this right. It also means the police need to cease interrogating you and it should be clear now that once you invoke your right to remain silent, you’re also invoking your right to a lawyer.
-Rob
Works for me!
But when one of the officers asked him if he prayed for forgiveness for “shooting that boy down,” Thompkins said, “Yes.”
And that’s the classic trick question right there. Either a yes or no answer could be interpreted as an admission that he shot some boy.
Here’s a good chance to link to my favorite Youtube vid. Don’t talk to cops. It is worth watching and rewatching.
Very true. It was totally a “did you stop beating your wife?” question.
And that’s a video worth watching.
And most ironically, from a law enforcement prospective, it doesn’t change a thing. 😛
Heck, in some instances, it actually makes it easier for us. 😉
Why? You don’t verbally invoke and use your rights, we can ask what we want. If you just sit there and remain silent, and don’t verbally invoke your rights, we can just keep on asking questions, until you invoke for a lawyer.
At least, thats what the Director of my Academy told us about it yesterday. He said he sees future case law basically cancelling this judgement out.