Supremes Decide that Remaining Silent is Not Choosing to Remain Silent

Today in Berghuis v. Thompkins, a 5-4 court (of course) watered down the Miranda decision on its way no doubt to making it virtually ineffective.  Justice Anthony “Swing Vote” Kennedy (the most important person in American Jurisprudence right now) wrote the opinion for the Court.

The Court for the first time decided two things about Miranda rights: first, if a suspect does not want to talk to police — that is, to invoke a right to silence — he must actually say so, with a clear statement because it is not enough to sit silently or to remain uncooperative, even through a long session; and, second, if the suspect finally answers a suggestive question with a one-word response that amounts to a confession, that, by itself, will be understood as a waiver of the right to silence and the statement can be used as evidence. Police no longer need to obtain an explicit waiver of that right. The net practical effect is likely to be that police, in the face of a suspect’s continued silence after being given Miranda warnings, can nevertheless continue to question him, even for hours on end, in the hope of eventually getting him to confess. The Court also said that the invocation of rights must be clear but never said what those words actually have to be.

Quickly here’s what happened in the case: Thompkins was brought in as a suspect for a murder that occurred a year earlier. No physical evidence connected him to the crime, the case was only circumstantial. At the start of the interrogation in a jail cell, two detectives showed Thompkins the Miranda Card and when he refused to sign it in acknowledgment that he understood the rights, read them to him aloud. They then proceeded to interrogate him without a break for nearly three hours.  During those three hours, Thompkins said not a word.  He chose to remain silent right? He was following the Miranda instructions right? WRONG!  According to Justice Kennedy and the Four Horsemen of the Apocalypse -Scalia, Roberts, Alito and Thomas-  Since “Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police” the police could keep on going with the pressure. And they did.

After this three hour session, the police tried another tactic. One officer asked Thompkins if believed in God. Tears welled up in Thompkins eyes as he said “Yes.” The officer then asked: “Do you pray to God?” Again, the suspect said “Yes.”  The officer then asked: “Do you pray to God to forgive you for shooting that boy down?” Thompkins said “Yes,” and then looked away.  That was it.  He refused to sign a written confession and that one “Yes” caused his conviction in a Michigan courtroom. Now maybe he was guilty maybe he was not.  Believe it or not THAT’S NOT THE POINT.

The point is that next time, the cops will go four hours or five or ten or twenty. Young people will confess to crimes they did not commit if pressured enough by law enforcement  That is a proven fact. Remaining silent is no longer enough to invoke your right to remain silent – You have to affirmatively say it aloud and invoke it.  We now leave it to the police to determine how long they want to go to try and crack the silent  witness.

Also of importance if only to law professors, law students and those innocent of a crime for which they find themselves interrogated is how this Supreme Court is quick to overturn decades of jurisprudence. As Justice Sotomayor pointed out in a harsh dissent, the decision did not “result from a faithful application of our prior decisions.”  Here was the law before today on how an individual invokes his rights under Miranda, from Moran v. Burbine (1986):

“If [an]individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent” or if he “states that he wants an attorney” the interrogation“must cease.”

If staying silent in the face of three hours of interrogation is not “indicating” you wish to remain silent, what is?

Another legal U-turn occurred with respect to who has to prove that the suspect waived or gave up his right to remain silent:

“[A] heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self incrimination and his right to retained or appointed counsel.”  That’s from the Miranda decision itself.  In North Carolina v. Butler (1979) the Supreme Court specifically said that staying silent after being read your rights is not enough to waive your right to remain silent. Here is what the court said then:

“Mere silence is not enough.”   You don’t need to be a legal scholar to see what that means. The Court today said the opposite and also said that by saying “Yes” to those  few questions he also waived his right. But Miranda itself addressed these issues:

“A valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”  That’s pretty clear isn’t it?

In fact Justice Sotomayor said:

“Rarely do this Court’s precedents provide clearly established law so closely on point with the facts of a particular case.”

So here we have activist justices at work all of whom claim to be “strict constructionists.”  How ironic is it that these five have decided that in order to have the right to remain silent you must speak.  Justice Sotomayor said it best in the closing paragraph of her decision:

“Today’s decision turns Miranda upside down.”

One reply on “Supremes Decide that Remaining Silent is Not Choosing to Remain Silent”

If the person wishes to stop questioning, he is given the power to state that he does not wish to talk to police and they have to stop questioning him. This person did not do that. He remained silent. He had the right to do that. He chose to waive that right when he started talking. No one compelled him to make a statement, he did so of his own free will after being informed that he did not have to.

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