SCOTUS just ruled that, essentially, if you want the right to remain silent you have to speak up and explicitly invoke that right.
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.
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