Defining The Right to Remain Silent
[Guest post by DRJ]
Today the Supreme Court ruled in Berghuis v. Thompkins that suspects must explicitly tell police they want to be silent to invoke their Miranda protection during interrogations:
“Criminal defendants won’t get the benefit of the Miranda rule against self-incrimination unless they specifically invoke it, the Supreme Court said Tuesday.
***
The vote in the Miranda case was 5-4 along ideological lines as the court’s conservatives put limits on the rights of suspects.Under the Miranda rule, derived from the 1966 Supreme Court decision in Miranda v. Arizona, police may not question a suspect who invokes his rights—and can’t use as evidence incriminating statements obtained after the suspect does so.
In Tuesday’s decision, the court ruled that an ambiguous situation would be treated in favor of the police.”
Here is the Wall Street Journal’s summary of the facts, Justice Kennedy’s opinion, and Justice Sotomayor’s dissent:
“The case came from Southfield, Mich., where a shooting suspect refused to sign a statement acknowledging that he had been given the Miranda warning but didn’t expressly state he was invoking his right to remain silent.
Police interrogated the suspect, Van Chester Thompkins, for nearly three hours, during which time he said virtually nothing. A detective then began asking Mr. Thompkins about his religious beliefs, asking, “Do you pray to God to forgive you for shooting that boy down?”
Mr. Thompkins said “yes” but refused to make any further confession. The prosecution introduced the statement as evidence, and a jury convicted Mr. Thompkins.
On appeal, Mr. Thompkins’s lawyers contended that use of the statement violated his Fifth Amendment right against self-incrimination. Writing for himself and four conservatives, Justice Anthony Kennedy rejected that argument.
“If Thompkins wanted to remain silent, he could have said nothing in response to [the detective’s] questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation,” Justice Kennedy wrote, joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito.
He added that no evidence suggested police coerced the statement and observed that “the interrogation was conducted in a standard-size room in the middle of the afternoon,” conditions that weren’t inherently coercive.
In sum, “after giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived his rights,” Justice Kennedy wrote.
Justice Sonia Sotomayor, in a dissent longer than the majority opinion, argued that the majority misread precedent and reached beyond the facts of the case to impose a tough new rule against defendants.
“Today’s decision turns Miranda upside down,” Justice Sotomayor wrote, joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer. “Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak.”
Editor Elie Mystal at AboveTheLaw is not pleased with this decision. While I’m not unhappy with the decision, I think Mystal’s right that this case shows it’s Kennedy’s Court now.
— DRJ
DRJ, I disagree. I’m not a lawyer but have spent years as an expert witness, often in criminal cases. The right to reman silent is not affected by this ruling. The guy DIDN’T remain silent and that was his problem. All he had to do was invoke his Miranda rights and it was over. I think MIranda went too far.
I have seen some pretty creepy characters turn up with haircuts and new suits and ties in the courtroom. Maybe they should have a uniform for defendants. I have seen defense lawyers lie and push the envelope trying to get inadmissible evidence mentioned to the case gets a mistrial.
I haven’t seen it all but I have seen enough games to recognize another one when I see it.
Mike K (82f374) — 6/1/2010 @ 12:09 pmI don’t see a requirement there to either request a lawyer or to verbally invoke silence.
Opps.
Having made the mistake of talking to cops before, in the future I’m only communicating by reading and writing. With my lawyer’s assistance. Until s/he arrives, this is it:
“Being silent, as is my right, until my lawyer arrives; please request their attendance. Name & SSN.”
htom (412a17) — 6/1/2010 @ 12:19 pmI think until this ruling, most courts ruled the way the lower court ruled. In other words, if there was a question about whether a defendant had asserted his right to remain silent, it was resolved in his favor. It sounds like this decision reverses the presumption so the police can assume a defendant hasn’t waived his right to remain silent unless he expressly claims it, much like the right to counsel.
DRJ (d43dcd) — 6/1/2010 @ 12:20 pmWait — the original Miranda case concerned a defendant who didn’t understand that he had a right to remain silent, and the explicit Miranda Warning was mandated to remedy that. Now the SCOTUS minority admits that Mr. Thompkins had been read his rights, but … what? That he must not have understood his rights because he admitted he was guilty when he should have kept his mouth shut?
“Your Honor, this evidence is inadmissable on the basis of my client’s stupidity.”
Mike G in Corvallis (fd5fcd) — 6/1/2010 @ 12:20 pmI’m not sure Miranda was turned, let alone turned upside down, with all respect to Justice Sotomayor.
kevin (9d9e73) — 6/1/2010 @ 12:37 pmThere is nothing counterintuitive in requiring a person to acknowledge his/her right to remain silent insofar as statements regarding the accusation/arrest/alleged crime.
Does the entitlement to an attorney mean that one is called immediately after the suspect is advised of the right to counsel (in Justice S’s world, you get the atty automatically without the request I guess). Should the police stop asking the “do you understand these rights as I have explained them to you?” question? Should they expect a response to that?
As far as an imposition on rights, the need to affirmatively assert those identified under Miranda hardly strikes me as an intrusion. Rather it provides an element of certainty and eliminates the kind of mind reading that would have to take place if an implied assertion of the right was the rule.
Having said all this I’ll just wait for David Savage to explain it all in tomorrow’s LAT. After all he is a constitutional scholar/reporter, right?
(OK sarcasm off).
If you have to ask for it, is it a “right” or a “privilege”?
htom (412a17) — 6/1/2010 @ 12:37 pmAnyone can look at this decision and be outraged. Anyone that is, that is more interested in playing a game called “Find a loophole for the Defendant”.
A silly ass game that has caused people to believe that our justice system, in the hands of people like Sotomayor, is about a lottery of error to benefit criminals.
SPQR (26be8b) — 6/1/2010 @ 12:44 pmI’m not sure anyone without any anti-prosecutorial or anti-police agenda can reasonably argue against this ruling. It’s just common sense. The dissent only proves Sotamayor is an idiotic Latina.
East Coast Chris (ded5f2) — 6/1/2010 @ 1:08 pmI think the real problem in understanding the decision is that the right to remain silent is really two rights. As I understand it, the police are not expected to end the interrogation every time a guy refuses to answer a question. Instead there is a right to refuse to answer a particular question and then there is a “right to remain silent” that once invoked ends the entire interrogation itself. Mind you the case law doesn’t divide it up this way, but I think it’s the best way to understand it. So clearly he was refusing, serially, to answer the questions. But he didn’t invoke the interrogation-ending right to remain silent. Its two different questions.
And consider the alternative. Okay, almost 3 hours seems a long time, but when should we draw the line. How long do you have to be silent before we decide that you have invoked your interrogation-ending right to remain silent. 2 hours? 1? 45 minutes? 15 minutes? 5 minutes? And how silent do you have to be to be silent. If you give him the finger, are you still silent? Because I will point out that it is technically a word in sign language and it means, pretty much what you think it means. How about if you laugh? How about if you smile? Cry? This is where the importance of the person making an unambiguous statement matters.
Its also the morass that you get into when you create a right out of thin air. If these was a statute or something like that interpreted, that would be one thing, but to say somehow the constitution means X down to that level of specificity about a right that isn’t actually in it just looks silly. But the other end is requiring a person to go through a ritual of unequivocally invoking his or her rights, when they don’t even know to do it, given that they are not lawyers.
And I would add, the man confessed out of a guilty conscience. Down to that essence, what exactly is the problem? it isn’t like they beat the confession out of him.
No, absolutely agree with this ruling, except to the extent that Miranda is upheld at all.
(by the way, comments are acting wonky, so I might not see any responses)
A.W. (e7d72e) — 6/1/2010 @ 1:23 pm“Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak.”
This is stupid.
Mime writing and once the cops riddle it out you could use a little stub of a dull golf pencil and write it down.
Or carry a card with your assertion of rights prewritten
But isn’t it just a heck of a lot easier for everyone to speak “5th” into those digital recorders they all wear now?
I can be silent for hours without ever asserting any rights beyond that moment in time. How are the cops supposed to know what I mean in the next moment unless I signal my intent definitively?
Maybe issue them little timers set at 60 minutes that also buzz at the ACLU?
Maybe the opposing justices are just empathizing; after all, murdering someone can be highly traumatic and keeping ones wits about ones self and remembering to strongly assert ones right to remain silent might be difficult due to the PTSD that likely surrounded the decision to shoot ones neighbor.
Steve G (7d4c78) — 6/1/2010 @ 1:26 pm“Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak.”
That’s just childish and doesn’t belong in a SCOTUS opinion.
Suspects need not invoke their right to remain silent to have the right. They can simply remain silent. What this decision has done is confirm that answering questions does not = remaining silent.
If the defendant wants the cops to stop questioning him, he can let them know he intends to answer no more questions.
MayBee (2fd5dc) — 6/1/2010 @ 1:31 pmI see Steve G beat me.
And yes, this seems very similar to invoking the 5th in the courtroom. The defendant/witness generally says they are invoking the 5th, rather than just sitting there mute and making everyone assume that’s what they are doing.
MayBee (2fd5dc) — 6/1/2010 @ 1:43 pmDoes this qualify?: “I have nothing to say to you.”
How about, “I don’t like answering questions.”
What the hell does “unambiguous” mean?
This is a common sense decision and rightly decided – except for the ambiguity standard. Ugh.
I’ll be darned if it is considered coercive to ask questions of a suspect who understands s/he can ignore the inquisitor. If I, as the subject of interrogation, am bothered, I can always ask what it will take to have them stfu and/or leave me alone. The bottom line, however, is that I can just stay 100% silent even after this decision.
Ed from SFV (f0e1cb) — 6/1/2010 @ 1:53 pmBtw, i can’t see comments and i have no guarantee that this will show up, but elie is mischaracterizing the situation. the guy was not completely silent. to quote the court:
> Thompkins was “[l]argely” silent during the interrogation, which lasted about three hours. Id., at 19a. He did give a few limited verbal responses, however, such as “yeah,” “no,” or “I don’t know.” And on occasion he communicated by nodding his head. Id., at 23a. Thompkins also said that he “didn’t want a peppermint” that was offered to him by the police and that the chair he was “sitting in was hard.” Id., at 152a.
So he was silent in the sense that he wasn’t. Sheesh.
Aaron Worthing (e7d72e) — 6/1/2010 @ 2:17 pm“Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak.”” – so what Sotomayor *meant* was that she (Sotomayor) does not understand English as a language … or perhaps she (Sotomayor genuinely and sincerely believes that the right to remain silent means that the person has the right to say absolutely nothing – which, coincidentally, the defendant actively chose to waive when he voluntarily uttered *any* words !
My mind boggles as to what Sotomayor will manage to come up with when the right to be tried by a jury of one’s peers is being considered … (Since peer has a number of meanings (and that is not even considering the homophone words) … for example, if the defendant is a person without peer, how can one possibly try him for anything ?
Alasdair (e7cb73) — 6/1/2010 @ 3:51 pm(grin) … so it transpires that the only thing genuinely silent about the defendant was the H (or was it also the P) in his name …
Alasdair (e7cb73) — 6/1/2010 @ 3:53 pmNot being a lawyer, I would think the right to remain silent is different from the right to end an interrogation. If you want to remain silent, remain silent. If you want to end the interrogation, follow whatever rules the courts conjure up for doing so.
David Barnett (1cbde1) — 6/1/2010 @ 3:56 pmThe Wise Latina is already proving her self – description as an oxymoron.
Dmac (3d61d9) — 6/1/2010 @ 4:00 pmThe following paraphrased from a recent episode of Cops:
Officer (speaking to handcuffed suspect sitting in back seat of patrol car): “You have the right to remain silent. Anything you say…” (etc.) “Do you understand these rights?”
Suspect: “Yes.”
Officer: “Are you willing to answer some questions?”
Suspect: “No.”
Officer: “Okay.” Closes door to patrol car.
Right explained. Right invoked. Sonya can sleep well tonight.
navyvet (206534) — 6/1/2010 @ 4:33 pm“Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak.””
Sheer genius, right there!!!!!!
daleyrocks (1d0d98) — 6/1/2010 @ 4:40 pmOr, you know, they can use their right to remain silent by remaining silent. All they have to do is… remain silent.
Sotomayor ain’t the sharpest knife in the drawer.
Newtons.Bit (b29d67) — 6/1/2010 @ 5:41 pm#21 Newtons.Bit:
Hell, she doesn’t even appear to be the sharpest spoon in it.
EW1(SG) (edc268) — 6/1/2010 @ 6:24 pmWhat happened to the comments ?
Mike K (82f374) — 6/1/2010 @ 6:29 pmJeez, the comments are really screwed up. I made that comment this morning and just logged on at 6:30 PM and saw no comments.
Mike K (82f374) — 6/1/2010 @ 6:30 pmOn the bright side, we wouldn’t even be able to load the website in the old days.
DRJ (d43dcd) — 6/1/2010 @ 6:39 pmDRJ
Hey in the old days Patterico had to blog, uphill, in the snow. So we have it good. 🙂
Btw, #25 is the last comment i can see. don’t know if it is a good sign or bad one.
A.W. (f97997) — 6/1/2010 @ 7:00 pmSotomayer’s dissent is a little strange:
“Today’s decision turns Miranda upside down,” Justice Sotomayor wrote, joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer. “Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak.”
Suspects can remain silent or they can choose to say something along the lines of “I refuse to answer the question,” or “I wish to speak to a lawyer.” Neither of which, in my limited understanding, would be admissible as evidence.
So, not uttering is now a constitutional right?
I’ve been ambivalent about Kagan up until now, but if these is the kind of nonsense that we can expect from liberal justices, then I hope the Republican senators can muster some sort of coherent argument to quash her nomination.
Ag80 (1b8eea) — 6/1/2010 @ 9:02 pmThis is absolutely the right decision because, contrary to popular misconception — much of it advanced by courts — the 5th Amendment does NOT give anyone the right to remain silent.
It says you have the right to not be compelled to be a witness against yourself.
The Rules of Evidence — not the Constitution — provide that a defendant’s statement is “not hearsay” and can be introduced by anyone who heard the statement. That Rule can make a defendant a “witness” against himself.
But the 5th Amendment talks about being “compelled” to be a witness against yourself. So, the Court addressed in Miranda the question of under what circumstances do answers to questions posing during interrogation become “compelled”.
The Court’s determination was that the process of questioning someone in custody, when they are not free to leave, is so coercive that any answers given during such examination are “compelled” unless it could be determined by courts after the fact that the defendant made such statements knowingly and voluntarily, while fully aware of their constitutional rights. A cautionary advisory would establish that the person in custody knew their rights prior to responding to any questions, establishing that they were not “compelled” in a manner forbidden by the 5th Amendment.
Here the defendant was advised of his rights AND SAID HE UNDERSTOOD them.
That is ALL that is necessary to remove the “taint” of compulsion that might attend an in-custody examination.
The fact that Sotormayor does not understand that BASIC fact after more than a decade on the bench makes me want to pound my head against a wall.
shipwreckedcrew (436eab) — 6/1/2010 @ 9:51 pmExactly, shipwreckedcrew. What part of the Miranda warning that says “anything you say can be held against you” doesn’t the minority understand?
Thompson said something after he was given the entire Miranda warning, and that statement was used against him – exactly as promised in the warning. Imagine that. I am surprised the dissent got four votes. I thought at least Breyer was smarter than that.
vnjagvet (d3d48a) — 6/1/2010 @ 10:27 pmDoes this “invoking” involve signals? Is plain text sufficient?
htom (412a17) — 6/1/2010 @ 10:40 pmOkay, so let’s dissect Sotomayor’s first great dissenting opinion:
“Today’s decision turns Miranda upside down,” Justice Sotomayor wrote, joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer. “Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak.”
— The phrase “turns . . . upside down” implies that the requirement has been altered by 180 degrees. Question: How so? Because “Criminal suspects must now unambiguously invoke their right to remain silent”? What were they allowed to do before? Invoke the right by any ambiguous method available to their fertile yet silent imaginations?
Icy Texan (a5b45b) — 6/1/2010 @ 11:59 pmAh, the small government conservatives once again landing on the side of government police power against other citizens!
Just think if that some government agents, instead of tricking him out of his Constitutional rights, tried to offer him health insurance! Now, that’s tyranny!
timb (449046) — 6/2/2010 @ 7:26 amSo when are “Timmy and the Lords of Destruction” touring again?
SPQR (26be8b) — 6/2/2010 @ 7:31 amtimb – Small government conservatives should be on the side of thugs who shoot children in the street?
Thanks we’ll leave that position to you and your Progressive friends.
Have Blue (854a6e) — 6/2/2010 @ 7:40 amtesting
Dmac (3d61d9) — 6/2/2010 @ 8:11 amTimmah!
Dmac (3d61d9) — 6/2/2010 @ 8:12 amWhat has been the deal with the influx of hatey hating haters like timmah and imdw and Hootenany recently?
JD (9d8cb8) — 6/2/2010 @ 8:38 am