Police

The Supreme Court Hears the Sounds of Silence

Why the high court was wrong to limit the scope of the Miranda warning

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In the last 44 years, the Miranda warning has become as American as the Iowa State Fair. Most of us could recite it in our sleep, particularly the part that goes: You have the right to remain silent. Police and prosecutors, who once saw it as coddling criminals, have learned to live with this modest obligation.

But not everyone is so adaptable. Some people bridle at the notion of going along with something that protects the guilty as well as the innocent. Five of them sit on the Supreme Court of the United States.

They read the Miranda protections the way W.C. Fields read the Bible: looking for loopholes. That became blindingly evident this week when the court, by a 5-4 vote, ruled against a defendant who said he had been deprived of his freedom to keep his mouth shut.

After being arrested and told of his right to remain silent, Van Chester Thompkins proceeded to exercise it. He refused to speak, beyond a few one-word responses to innocuous questions, such as whether his chair was hard. But his police interrogators were not to be denied.

For nearly three hours they confined him in a small room and peppered him with questions. Finally, Thompkins was asked if he prayed to God to forgive him for "shooting that boy down," and he replied, "Yes." He was convicted of murder and sentenced to life without parole.

His lawyers said that having indicated his choice to remain silent, he should have been spared further grilling. On their side is common sense, which says that if someone announces you are free not to speak, not speaking is an unmistakable way to convey your exercise of that prerogative.

But common sense is not always abundant in the halls of justice. The Supreme Court claims that Thompkins' persistent silence didn't suggest a choice to remain silent. Its logic: How can I know you don't want to talk if you won't say anything?

It doesn't occur to the five justices that someone in the grasp of the police, after hours of relentless questioning, would conclude that his right to remain silent was meaningless—that he would be interrogated until he answered.

Justice Anthony Kennedy insisted there was no evidence the suspect had the slightest desire to invoke the privilege. "Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police," asserted Kennedy.

If there is any doubt about the suspect's preference, the court established, it will be taken as consent to be questioned. If Kennedy were to try to strike up a conversation with someone at a bar, only to be ignored, he would assume she was dying to hear more.

Such obtuse logic is impossible to square with the 1966 Miranda decision, where the justices explained the psychological reality of a police interrogation. Someone being held involuntarily in a station house, they knew, will tend to assume that he must cooperate or suffer painful consequences.

The Miranda warning is one way to convey to the suspect—and the cops—that he has rights they must respect. "Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice," declared the court.

But just giving the warning is not enough. The court stressed that the police may not exploit ambiguities to nullify its effects.

"If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease," it said. "If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination…" (my emphasis)

Not anymore, it doesn't. Now, says the court, it is the duty of any accused person "who wants to invoke his or her right to remain silent to do so unambiguously." The "heavy burden" lands on the suspect. If cops can trick him or wear him down, the justices say: Good for them.

Once upon a time, the Supreme Court tried to make sure that Americans under police suspicion could freely decide whether to exercise their constitutionally protected right against self-incrimination. I'm waiting to hear Kennedy and Co. express any similar commitment. And their silence is deafening.

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  1. If you didn’t do anything wrong you have nothing to worry about.

    1. You’re being ironic, right?

      1. Only a drug peddling commie child rapist would question Dirty Harry’s right to clean up the streets at any cost.

        1. That should read commie, child rapist. Obviously, it’s ok to rape commie children if it’ll clean up Southeast Asia.

  2. How long can they question and not get a response before they have to quit? 10 minutes? 1 hour? 3 hours? Do they have to provide an attorney if the person doesn’t ask for one? I hate cops probably more than anyone else, but this is not that big of a change. Saying “I have nothing to say.” is not a burden.

    1. I believe the metric is one officer can do it as long as he can. That is to say that there is no time oriented tag team, but if officer Asshole starts questioning he can continue to interrogate a person until he can no longer stay awake.

    2. agreed.

  3. So, if you say out loud that you want to remain silent isn’t that admitting you don’t want to remain silent because you just talked?

    1. No, not at all. I have my problems with the criminal system but it’s not a bunch of hackee-sacking pot-heads sitting around going “dude you like just totally talked to tell me you’d like to excercize your right not to speak, did I just blow your mind?”

      1. You just have to say that you’d like to excercize your right rather than waive it. That’s it. If they persist after that then that’s on them. You don’t have a right to emotionally sensitive cops who will read into your melancholy mood that you obviously want an attorney.

        1. But if it’s a right, shouldn’t it be assumed to be in effect until you waive it?

          1. But it is in effect. I’m pretty sure that even if you waive it, you can still change your mind. You can ask for an attorney at any time and they have to provide one.

            Remember that it’s “you have a right to an attorney…” first assuming you’re gonna call your own, then “…if you cannot afford one, one will be provided for you.”.

  4. “But common sense is not always abundant in the halls of justice.”

    There’s the article in that one sentence.

    I wonder if this case will get mentioned at the next State of the Union…

  5. We once had a presumption in American law that it was better that 10 guilty go free than for one innocent to be convicted and punished. We seem to have reversed that presumption.

    1. I’d rather let a thousand guilty men go free than chase after them.

    2. That vanished when the goal turned into “Let’s make enough laws so that everyone is guilty of something.” So now, there’s no ‘innocent’ people, there’s just ‘maybe they didn’t do *this* crime that we’re investigating, but they surely did something, and we’ll get them on this to make up for that other thing that we don’t know about.”

      1. this is so true. We make enough laws that everybody becomes guilty of something and it’s just a matter of who you want to charge today. It has been this way many countries for years hence bribery becomes a way of life. this is why BP, used to dealing with countries that takes bribes has apparently bribed regulators. proof that to many regulations leads to less compliance.

      2. They’re We’re all guilty of “something”. Indeed.

        So I guess the US is the new Australia 🙂 G’day, mate!

  6. Sorry, but I think the High Court got this one right. Having the right to remain silent doesn’t mean having the right to call off questioning. The police should still have the chance to argue you into talking. Also, how far do you extend the principle? If a suspect stays mute after the first question, does the interrogation stop there?

    1. while I’m not sure that the police should “have the change to argue you into talking” I do agree the Court got this one right. “I have nothing to say” or “I’m saying nothing” – not that much of a burden and also gives clear notice the cops that you’re not talking. Answering some questions (even with “yes” or “uh..no”) and then not answering others sends mixed signals about whether you’re remaining silent (and if I’m a cop I’m going to keep questioning you if you answer some of my questions, even with a simple yes/no).

      1. *chance – not “change”

      2. Maybe somebody can clear this up for me but I thought if you requested a lawyer they couldn’t ask anymore questions or is this something I falsely learned from tv shows. If this is true then the issue of how long you can be questioned is resolved, Just ask for a lawyer.

    2. Having the right to remain silent doesn’t mean having the right to call off questioning.

      Actually, the Miranda right to remain silent DOES mean having the right to call off questioning. The ruling said, however, that you have to give SOME indication, however slight, that you do intend to assert that right.

      Any of these statements would suffice, at any time before or after being Mirandized:

      “I want a lawyer.”

      “Shut up. I don’t want to be interrogated.”

      “I invoke my Fifth Amendment rights.”

      “I refuse to answer any questions.”

      “Shut your piehole, cop.”

      1. …and this supreme court ruling *doesn’t* abrogate your right to call off questioning. It just makes you have to breach your right to silence for any one of several possible three word phrases. For the pedantic, that’s some sort of crazy contradiction. For the pragmatic, it’s completely reasonable.

        1. shit, how the hell did that happen?

          I guess I just like repeating what other people say, in unfunny ways.

    3. I don’t know. If you say “I am not going to answer any questions”, they should stop asking questions.

    4. “Right to remain silent” isn’t a genuine right unless the police are required to honor it. (Waterboarding makes suspects talk).

  7. Sorry, but I think the High Court got this one right. Having the right to remain silent doesn’t mean having the right to call off questioning

    I think that is associated with the right to an attorney. If you are being questioned and at any point request council be present the questions should stop immediately.

    1. Suspect: “I want a lawyer.”

      Cop 1: “Fine. I’ll go get him for you.”

      (Cop 2 walks in, not knowing the suspect requested a lawyer, or hell, even if he did know…)

      Cop 2: “How many times did you rape her?”

      Suspect: “At least a dozen but ask me again when my lawyer gets here, cuz now I can say whatever I want and it don’t mean shit.”

      Really? That’s inadmissable now? Unless he was physically coerced into a response he needs to keep his mouth shut before, during, and after questioning if he expects to not have his statements used against him in court.

      The Court got this right.

      “I invoke my right to remain silent. I killed the bitch.” If you have the right to remain silent, use it or lose it.

      1. Nope. You’re absolutely wrong on the law here.

        If you ask for an attorney, no statement you make after that is admissible until your attorney shows up.

        And it’s absolutely appropriate that this is the way it’s done.

        If it was NOT done that way, the police would have every incentive to foot-drag on requests for an attorney.

        If we allow police to continue questioning after the invocation of either the silence right or the attorney right, neither of them would mean anything in practice.

        1. Miranda says, “You have the right to remain silent. ANYTHING you say can and will be used against you in a court of law.” It doesn’t say, “Once you lawyer up you can say anything and be off the hook for those statements.” I don’t mind changing the Miranda speech, but until you do, there should be no expectation that you can say anything once you’ve asked for a lawyer. If you lawyer up and they bring you back to your holding cell and you tell your cell mates you killed someone, can that not be used against you? If not, why not? Remaining silent is clear. Speaking is not remaining silent no matter what other rights you invoke.

          1. I think conversations between you and someone not from the state are not protected. The protection is designed to protect you from the state, not the drunk next to you.

          2. And also, the character comes into play of the prosecution’s “key witness” when it was your wife-murdering, child-raping cell mate. Hmmm, why is he suddenly in the mood to rat someone else out?

            Of course the jury is usually asked to ignore the fact that the new witness is getting a sentence reduction for helping sway this testimony.

    2. That’s not the issue here. Thompkins never(?) lawyered up.

  8. Thompkins was asked if he prayed to God to forgive him for “shooting that boy down,” and he replied, “Yes.” He was convicted of murder and sentenced to life without parole.

    I see. He said “Yes,” and with that one utterance it became an open-and-shut case. Shouldn’t Chapman’s beef be with the jury that convicted Thompkins? Or maybe there is more to this case than can be revealed in a 700-word column.

    1. +1

      That was my first thought. Silly me, working in the legal field, I get totally hung up on the prosecution’s burden of proof and on this whole “beyond a reasonable doubt” thing.

      And that’s to say nothing of the fact that Thompkins’s tone of voice isn’t considered. Maybe he said “yes” sarcastically. Surely his attorney would have been smart enough to at least suggest that may have been the case?

      1. Public defenders are not always the sharpest lawyers around. That would have been a brilliant defense — “When he said, yes, he was being sarcastic.”

        1. Elizabeth Jacobs is not a public defender.

          You’re also completely missing the point that his saying “yes” by itself does not constitute proof beyond a reasonable doubt. That’s what evidence and eyewitness testimony are for.

      2. I can’t help but think of Ralph Macchia…

        “I shot the clerk…”

        (from My Cousin Vinnie, if that’s too obscure)

        1. Ralph Macchio. Awesome movie.

          “Two yutes.”
          “A two huhwhat?”

  9. The funny thing is you can gain absolutely nothing from talking to police. There is not one single legal advantage to you for disclosing anything to an officer. The benefits of an encounter are completely one sided.

    1. And the teachable moment is: ignorant felons are convicted more often than educated ones.

      1. 2nd teachable moment: ignorant innocents are convicted more often than educated innocents.

    2. The funny thing is you can gain absolutely nothing from talking to police. There is not one single legal advantage to you for disclosing anything to an officer.

      You mean, other than disclosing that you want a lawyer, and you refuse to answer any questions, and you assert your Miranda right for them to STFU right now.

      Other than that, yeah, saying anything at all is a terrible idea.

    3. That’s a good general rule of thumb, but it’s not always true.

      If you remain silent throughout a traffic stop, for instance, you’re much more likely to get cited for every single violation the officer can think to pin on you. And he can think up plenty.

      And if you get a truly bad cop, he’ll say he smells marijuana smoke in your car and do a search because he thinks you’re trying to hide something.

      There are situations where acting like an ACLU attorney in police encounters is going to get you in more trouble than just being friendly to the cop (obviously not to the point of incriminating oneself).

      1. I remain silent during all stops. As a matter of fact My wife and I were pulled over a month ago. I said nothing. My wife said where we were coming from and that was it. Neither of us got a ticket. I also didn’t roll the passenger window down all the way. (officer approached the side with the woman on it, go figure)

        I’m not unfriendly or confrontational. I just don’t answer questions. Questions are for court.

    4. Concise and very true. I watched a 60 minute lecture from a law school. The prof spent 30 minutes and a police officer spent 30 minutes saying what you said in a couple of sentences. Don’t talk even if you are innocent what you say can be spun to make you seem guilty.

      1. I saw the same video, from a UVa professor. Here it is:
        http://www.youtube.com/watch?v=6wXkI4t7nuc
        One of the few videos I keep bookmarked at all times (right there with Vitamin C’s “Friends Forever” High School Musical remix)

    5. I disagree–were one to be in such a situation, it is to one’s advantage to learn from the officer, IMMEDIATELY, what one is accused of! If the stakes are high, hmm is correct that further conversation provides one no benefit.

  10. You have the right to remain silent.
    The right to a court-appointed attorney.

    You have the right to sing the blues.
    You have the right to cable TV.

    You have the right to sublet.

    You have the right to paint the walls.
    No loud colors.

    1. does feces count as a loud color?

      1. Depends on what they feed you.

  11. Sorry, but if someone can’t be bothered to stand up for their own rights by asking for an attorney and telling the cops “I’m invoking my right be remain silent”, then you don’t deserve those rights. This idiot just sat there not being silent. He kept answering questions, including the one that implied his guilt.

    1. that’s about it in a nutshell

  12. What the hell, Steve.

    The right to remain silent is not the right to not be pestered by police. Nor is it the right to not have something you say or do be held against you in the court of law.

    It’s the right to not get thrown in jail a-la Sir Thomas More for keeping your mouth shut.

    If your issue is with how long someone can be interrogated, well that’s a different constitutional issue altogether. And a legitimate one. But this case is not about that.

    Jesus christ, I can’t believe how angry I get when something dumb is written in Reason compared to the usual drivel in Huffington Post.

    1. Don’t read Chapman then.

    2. Agreed. Chapman screwed the pooch on this one.

      Though I don’t get angry when Chapman writes something done. Might as well get mad because you told the tide not to come in, and the waves fucking ignored you and came in anyway.

      1. S/B “writes something DUMB.”

        Fucking unrevisable posts.

        1. Boyle’s Law strikes again.

          1. What Boyle’s law are you referring to?

          2. It’s joe’z law Tulpa. Perhaps a Tulpa’z law is in order?

  13. while this isn’t a case from The Supremes, it does come from the Ohio Supreme Court – and I think is a much bigger deal than the Miranda case.

    Estimates OK for speeding tickets, court rules

    1. Ruh roh, I’m screwed…

    2. Now that one sounds like something that might actually get slapped down 9-0 by SCOTUS. Damn, that was a stupid ruling.

      1. In the mean time scratch any trips to Ohio.

  14. The right to remain silent is not the right to not be pestered by police.

    Actually, it is, if it’s actually invoked.

    If you say the words, “I am not answering any questions and invoking my right to remain silent” then the police have to stop questioning you. And should have to stop questioning you. And there’s no point to pestering you after that, anyway, because even if you break down and start answering all of it’s inadmissible anyway.

    That wasn’t the issue here. I also think Chapman is wrong. But it’s because in this particular case, this jackass was answering some questions but not others, and never invoked his right. The police aren’t mindreaders. If you answer some questions, they’re entitled to ask you more. This case can’t answer the question of whether maintaining total silence is the same as invoking the right for the simple reason that this moron didn’t even maintain silence.

    1. Rights exist whether we invoke them or not. And yes, that leads to the police not being able to question anyone without their lawyer present or a very specific declaration they are waiving the right. Im okay with that.

      1. He always had the right to remain silent as well as the right to request a lawyer. He could have done either or both at any time during the interrogation. He did neither. How is that a problem for the cops or prosecutor? If I’m on the jury, it’s not a problem for me either. He may have had the rights but he chose not to exercise them after they were read to him.

        1. See Mark’s post below on the military methodology.

          He always had the right to remain silent as well as the right to request a lawyer.

          Its impossible to do both.

          1. My point being, rights dont require requests. They shouldnt question him until his lawyer arrives, unless he specifically waives his right to a lawyer and silence. I like the military’s method.

          2. The intent of “right to remain silent” is that you do not have to incriminate yourself. You asking for a lawyer does not mean you are not being silent because you have to speak those words. By your logic, you could write down an admission of guilt but remain silent.

            1. Dude, ignore the joke comments and respond to the serious bits. If you cant tell the difference, buy a fucking sense of humor.

  15. Wow, sorry about all the actually’s up there.

    Actually, I should have previewed, actually.

    1. Never apologize for self-actualization!

  16. They need to expand the Miranda warning then to tell suspects they must invoke their right to remain silent and can end the interview at any time. To tell them one thing and expect another is misleading.

    1. If they take this step, it would resolve the ambiguity that is at the heart of the case described here.

    2. Military law has been doing for a long time. Suspects must read and sign the following form before any questioning:

      http://www.in.ng.mil/Portals/0/CIT/Substance Abuse/Self_referral/A3881.pdf

      It seems rather simple to me. A suspect is asked directly (via the form) if (s)he wishes to speak to investigators. A ‘no’ answer ends the interview.

      I’ve mixed feelings about the SCOTUS case in question. If we are truly about protecting individual rights in criminal cases then there should be no opportunity for ambiguity. Officers tell you right up front you have the right to remain silent, but they don’t tell you the interview will stop if you invoke that right.

      I think the government should have to information in Miranda warnings.

      1. Your pdf link won’t let me look at the document. Possible to cut and paste the whole thing here?

      2. I like that form a lot. If someone talks to investigators after it is followed and signed, they really want to talk to the investigators.

        Here’s a link to the DA-3881 form or you can just Google ‘DA-3881’.

  17. I’m a full-fledged libertarian, but I’m not sure I accept this argument.

    1. But do you have the decoder ring? The latest one. Here, test it out:

      4nai6rat2rebil0deg7del3flluf2?

      1. I ROT13’d that and it still did not make any sense.

  18. For nearly three hours they confined him in a small room and peppered him with questions. Finally, Thompkins was asked if he prayed to God to forgive him for “shooting that boy down,” and he replied, “Yes.” He was convicted of murder and sentenced to life without parole.

    There was a lot more than that to his conviction. The man he shot identified him in court and his accomplice testified against him.

    According to his initial appeal, after having been advised of his rights Thompkins verbalized that he understood but refused to sign the form acknowledging so. I see no evidence that he ever invoked his right to remain silent. Given the specifics of this case I think they got it right.

    1. The man he shot identified him in court…

      Ummm…excuse me…wasn’t this guy on trial for murder? Wouldn’t that mean that the guy he shot would have been, like, too dead to be testifying in court in a murder trial?

      If the guy he shot was alive enough to testify in court, it strikes me that he was alive enough to have not been murdered.

      What am I missing here?

      1. Ouija board evidence, properly presented, is fully admissible in a court of law.

        1. And a ham sandwich can be indicted as well.

      2. What am I missing here?

        Two men were shot, Samuel Morris and Frederick France. Morris died. France testified in court that it was Thompkins who shot them.

        Anything else?

        1. No I stand informed.

        2. I figured it was something like that, but I couldn’t resist the Ouija board comment.

  19. The police can badger you into submission?

    1. Yeah, shocker, eh?

    2. Not if you say “don’t badger me into submission I want a lawyer” or “I’m cookoo for cocoa puffs I want a lawyer” or the smarter yet, “I wish to remain silent, I want a lawyer.” At that point Murtaw will usually tell the LT. Riggs to back off, but Riggs will turn off the recording device and lay his badge on the table and really give him the third degree. Or the cops will just say fuck it we tried and go get a donut. I think the latter is more likely.

  20. An ex-FBI agent friend told me, in response to my questions about Scooter Libby and Martha Stewart, that you should always say “I won’t answer anything until I consult a lawyer” even if the questions seem innocuous or just about what you may have witnessed. Otherwise, you run the risk of being charged with obstructing justice (lying to a federal officer) should your answer turn out to be wrong due to faulty memory or trying to protect privacy – even if it turns out no crime was committed.

    1. Don’t talk to cops.

      http://www.youtube.com/watch?v=i8z7NC5sgik

      Law Professor James Duane explains why never to talk to cops.

      “..even if the questions seem innocuous…” he covers this.

      1. If you’re pulled over for speeding by a cop, do you refuse to talk to the cop? Do you refuse to acknowledge any of their questions, other than their requests that you produce a driver’s license and the vehicle registration?

        Curious how that would play out if you remained silent in that situation.

        1. The last time I was pulled over, I maintained my silence, there wasnt anything to say. I did break it when he started droning on about possiblities of traffic school, “Yeah, yeah, I was there last month”. Saved me a 5 minute speech.

          1. Would the following, said in a mild, respectful tone, piss off the traffic cop and make him throw the book at you?

            “I respectfully invoke my Fifth Amendment right to remain silent, officer.”

            1. If you live in Texas, it likely would.

    2. Exactly, you MAY think it’s “no big deal” or about somebody else. Trust me, if the police, much less the FBI is taking time to talk with you, it IS a big deal.

  21. Couldn’t wait to comment on this stupid article but I see the vast majority of the comments already see through it. He answered some of their questions so they kept asking them. Nothing to see here.

    1. The problem for me wasn’t so much the case itself, but the fact that 5/9 justices have a problem with the 5th amendment (or so it would seem). Yes, this guy gave cops the opportunity to continue questioning, and he should have lawyered up, but why does SCOTUS need to hear this trial to tell us that? If it was as open and shut of a case as “he continued to talk, not necessarily about the case, but that gave us reason to continue questioning” then this case would never make it this far. I think it’s worse that the Supreme Court agreed to hear it, as it gives them a basis for upsetting the premise of innocent until proven guilty.

      So much for all those articles suggesting Kennedy leans libertarian.

  22. The problem with Chapman’s position is that he wants to codify ‘common sense’.

    6,000 years of human experience with government bureaucracy has shown this to be impossible. The police need bright line rules. Otherwise, imagine the legal nonsense that would come out from one police officer figuring that 20 minutes of silence was enough, another figuring 1 hour was enough, and so on.

    Chapman is right that the Miranda warning has entered the popular culture. So has the right of a suspect to demand to speak to an attorney.

  23. “I had the right to remain silent, but I didn’t have the ability”

  24. Miranda is about protecting the ignorant. Saying “if you can’t invoke the right you don’t deserve it” is kind of missing the point. And it’s absurd anyway to require someone to speak in order to invoke the right to not speak.

    1. +1 Agree with you 100% Tony. The only reason people talk to the cops is they think by talking to them, they will not be cited or brought in for questioning.

      The legal reasoning here I find logically perplexing.

      1. Groovus and Tony
        But that’s why the cops have to read the rights to you and if you’re having your rights read to you, you’re already being brought in. Miranda rights aren’t read to anyone they’re not bringing in.

        Even if you were ignorant of your rights before they were read to you, you’re assumed informed after you’re mirandized.

        1. Yeah, but often their ears are still ringing when their miranda is read.

        2. And that’s another problem. You never have to talk to the cops, whether you are being brought in or not. They tout “obstruction of justice,” but that’s more likely to be applicable if you DO talk then don’t, as they can catch you in a lie and then prosecute you.

          It’s because the Miranda warning isn’t always read that people can get in trouble.

          (sorry for all the italics, I really wanted to hammer this point home)

    2. And it’s absurd anyway to require someone to speak in order to invoke the right to not speak.

      It’s absurd anyway to pretend that the “right to remain silent” is really a right to not speak (to literally be silent) instead of a right to avoid having to answer questions or self-incrimination.

      Otherwise, you’d end up saying that if the suspect said anything, even “Can I go to the bathroom?” or “Can I get a drink of water?” then he’d give up the right because he wasn’t being silent. The right is obviously about not having to answer questions, not being silent in general.

      1. Invoking the right means cops don’t get to question you for hours on end. They don’t get to coerce you out of your right to be silent by wearing you down.

        This ruling lets recidivists and others aware of their rights invoke it, but puts an additional burden on the ignorant.

        1. This ruling lets recidivists and others aware of their rights invoke it, but puts an additional burden on the ignorant.

          After having just been informed that you have the right to remain silent, failing to avail yourself of that right is not ignorance. That is what we call stupidity. The Constitution is rightfully silent on that matter.

          1. Stupid people have rights too. As this article explains, the ruling shifts the burden from government to the suspect. That doesn’t bother you as a libertarian?

            1. And it’s not just ignorance. Miranda recognized the inherently coercive nature of being in police custody.

              1. It’s not ignorance at all, Tony. After having your rights explained to you in detail, you can no longer be ignorant, just stupid.

            2. Stupid people do have rights, the same rights as smart people. What they do not have is the ability to get off scot free because they were explicitly advised of their rights, and then failed to take advantage of that legal counsel.

              1. Well, the original test was that you have to clearly and unambiguously assert that you’re waiving your right. Failing that, government doesn’t have the right to further question you (until now, I guess).

                I’d expect libertarians to be more in favor of suspects’ rights, the whole point of which is to make the government do its job in a rigorously fair way before it’s allowed to lock you up.

                1. Well, the original test was that you have to clearly and unambiguously assert that you’re waiving your right.

                  Not exactly. The “original test” wasn’t clear and unambiguous at all– and this wasn’t a clear and unambiguous situation.

                  Like robc, I’d be happier with a situation where the Miranda warning included a standard form that people had to sign in order to waive their rights, or anything else clear and unambiguous. I support a bright line rule– this case was anything but.

                  However, I suspect that even in that case there would be allegations and incidents of police pressuring people to sign the form; people sign away their rights all the time by not reading forms.

                  1. It’s not always possible to hand someone a form to sign during an altercation out in the field.

                    During a custodial situation in a police stationhouse, sure.

                    And, I think defense attorneys might actually have objections to the notion that the police can shove a form in front of you, and bully you into signing it, and then you lose your rights.

                    Would be interested in hearing an actual lawyer who in involved in these cases weigh in.

            3. As this article explains, the ruling shifts the burden from government to the suspect.

              Of course the burden to remain silent is on the suspect, who else should it be on? This case, as I read it, does not bother me at all. The man was read his rights. He said that he understood them and did not ask for clarification. Had he wished to avoid self-incrimination all he had to do was open his mouth and say I am exercising my right to remain silent. He did not.

              1. So in order to exercise his right to be silent, he has to say something? Isn’t it a fucking right to be silent?

                The burden of ensuring the suspect’s rights should be on police–the suspect already has the deck stacked against him by being in custody.

                1. So in order to exercise his right to be silent, he has to say something? Isn’t it a fucking right to be silent?

                  It’s an expression. The accused has the right not to incriminate himself. It is commonly called “the right to remain silent”. He is allowed to speak to inform the authorities that he will, in fact, be exercising the right that he has just been advised of. Or he can absolutely say nothing.

                  1. Right, but now if he says nothing he is presumed to having not invoked the right, whereas before the burden was on the police to make certain the right had been waived.

                    I’m constantly lectured on inherent negative rights here, I don’t get why this is suddenly different.

                    1. It’s not and you’re right. But part of the confusion on this issue is a direct result of the corruption of the concept of “rights” by the statists.

        2. Invoking the right means cops don’t get to question you for hours on end. They don’t get to coerce you out of your right to be silent by wearing you down.

          Yes, I agree. But how exactly do you draw the line and determine that someone is trying to remain silent? This guy responded to some questions but not others.

          This ruling lets recidivists and others aware of their rights invoke it, but puts an additional burden on the ignorant.

          I would be a lot more concerned about this aspect if we didn’t have the requirement that the cops read the Miranda warning.

  25. I love how people who can’t seem to grasp the literal meaning of Constitutional phrases like “shall not be infringed” and “Congress shall pass no law” get all hyper-literal about “the right to remain silent.”

    Jeebus. Saying “I’m gonna take the Fifth, coppers. I’m not answering nothing” doesn’t waive any rights, much less the right to remain silent (which, I might point out, isn’t even in the Constitution on those terms, which says “nor shall [any person] be compelled in any criminal case to be a witness against himself”).

    1. Right, just like saying “I need to go to the bathroom,” or “Come on, after three hours of questioning, can I get some water?” doesn’t waive any rights either.

    2. Right to remain silent is the 5th… the miranda speech is given when you are arrested and being charged with a crime. At that point, the cops are questioning YOU about YOUR involvement – basically asking you to be a witness against yourself. The right to remain silent. Perhaps I am misunderstanding you when you say it is not in the constitution on those terms… but it sort of is. Moreover, you do not have to say, ‘I take the 1st’ in order to all of a sudden be protected by the 1st – it’s automatic that you are protected under Free Speech.

  26. How about this? “I choose to remain silent. I’d like my attorney here with me.” How difficult is that, exactly?

    Once he demands an attorney, the questioning must stop until the attorney is present (Edwards v Arizona). It’s the suspect’s duty to affirmatively and unequivocally assert his request for a lawyer (Davis v US) — and that’s been settled precedent since the mid-90s. Why is the choice to remain silent any different?

    We’re so busy trying to protect people from themselves that we make it incredibly difficult for cops to do their jobs.

    1. This is why I like the military solution. No ambiguity whatsoever and the cops can do there jobs clearly without worrying about overstepping the lines.

      If he signs the paper waiving his right, you can question him. If he doesnt, you cant. Until he signs it, dont question him at all.

      1. To be fair, even in that case there would be allegations and incidents of police pressuring people to sign the form; people sign away their rights all the time by not reading forms.

        1. Of course, but it reduces the amount of gamesmanship. There is no perfect solution.

          1. Well sure, but I think that the difference between “the cops have to read out a specific warning listing your rights” and “the cops have to hand you a form to sign listing your rights and your decision to waive them” is one of degree, not kind. Both can and will be ignored by ignorant people.

            I can’t see the distinction as enough to get ALL CAPS about, sorry.

    2. It’s the suspect’s duty to affirmatively and unequivocally assert his request for a lawyer (Davis v US) — and that’s been settled precedent since the mid-90s. Why is the choice to remain silent any different?

      This is the part that is bullshit. I dont have to assert any of my other rights, they just exist. I dont have to say “I am now acting as a member of the press, therefore I have freedom of the press”. I have it, PERIOD.

      1. You don’t have to verbally assert your rights when questioning. You can sit there and not say anything, and just wait them out. Your rights would still exist.

        The wiser course would be to assert your rights immediately, of course.

        1. My point is the questioning shouldnt depend on any assertion either. No questioning should occur until I have waived my rights and/or my lawyer is present.

          Too many possible abuses otherwise, regardless of whether this case is one or not.

        2. I HEREBY DECLARE OPENLY AND PUBLICLY MY RIGHT TO REMAIN SILENT AND MY REQUEST FOR MY ATTORNEY IN ALL FUTURE INTERACTIONS WITH POLICE.

          Done.

          1. If you think that isnt good enough, that I should specifically have to repeat it in front of the cops on each particular instance, then something is fucking wrong with the system.

            1. Is something wrong with the system that you have to specifically go to a polling place and request a ballot each time there is an election?

      2. I dont have to assert any of my other rights, they just exist.

        Not really true. You have the right to vote, but you don’t necessarily have the right to get a ballot unless you take the time to assert that right and register to vote and then go to the polling place or otherwise request a ballot.

        You have the right to an attorney– but you do have to request one to get it.
        You have the right to a ballot– but you do have to request one to get it.

        The rights exist whether you assert them or not, but actually exercising your rights sometimes requires going to the effort to exercise them.

  27. I don’t get why anybody who’s ever seen Law and Order (i.e., everybody) would say anything to a cop other than “I would like to talk to a lawyer.”

    1. Miranda is about protecting those who may not be aware of their rights.

      Though I’d not be surprised to see the Law & Order test come up in a Scalia opinion.

      1. Once again, if you have had your rights explicitly read to you, you are aware of your rights.

        1. Maybe, maybe not. I’d rather the burden be on the police to prove that you have unambiguously waived your right, rather than on the suspect to invoke it.

          1. But, the problem is they are not being explicitly read to you if you are not informed that you can stop the questioning at any time.

            1. Just how long do you want to make the Miranda warning in order to protect the most stupid suspects imaginable?

              5 minutes long?

              10 minutes long?

              An hour?

              “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. You can end any questions by verbally asserting your right to an attorney and to remain silent. The actual wording of the Fifth and Sixth amendments to the U.S. Constituion are as follows …”

              Some time later:

              “There have been numerous Supreme Court cases about these rights. I’m going to discuss them all in great detail, in case you’re incredibly stupid and/or ignorant. The first one we will discuss is called Miranda v. Arizona. In this case …”

              Several hours later:

              “Do you understand these rights as they have been read to you?”

              Can you see how it might actually be a good idea to keep miranda warnings short, rather than bloviating for the benefit of those with IQs below room temperature who will still find some way to fuck things up?

    2. “I’m innocent!!”

      <takes off running>

  28. The worst part is that the default action whenever someone asks you a question is to ANSWER it—at the very least to have a comeback.

    It really takes quite a lot of willpower not to say ANYTHING when police are interrogating you.

    And police aren’t looking to find out whether or not you committed a crime. The only reason they’re talking to you is to GET EVIDENCE that you DID commit the crime–regardless of whether you actually did. Their job (as they and their bosses see it) is to build a case for the DA.

  29. I think that cops should have to perform a puppet show illustrating the miranda rights before asking any questions. I mean, we can’t expect the unwashed masses to know what words are.

  30. I guess this is all important, but I can’t help think the supreme court’s decision is a bit moot. How many poor deluded doofs at police stations have tried to invoke the Constitution or Miranda Rights only to find out, like the lieutenant in Clockwork Orange says to Alex as he’s being interrogated, “we know the law too, but knowing the law isn’t everything”.

    Rights are great, but they’re pretty much pointless if the police don’t feel like abiding by them and you don’t have an endless source of money for the court system to prove they were violated…and really, after you’ve had a plunger handle shoved up your ass, a court victory is probably pretty hollow. Unless you’re a celebrity, it’s not like they’re gonna fire the people who brought this upon you.

  31. As others have posted before, the right to remain silent is directly tied to the 5th amendment. It is just about self-incrimination. You could talk about the ending to Lost all day long if you wanted, even if you did verbally invoke your right to remain silent.

    Technically, as Miranda stands right now, ANYTHING you say can be used against you. BUT, I seriously doubt that the DA is going to use you asking to use the bathroom or discussing your postulations on the ending of Lost in the courtroom.

    Sorry Mr. Chapman, this article is at total fail.

  32. I swear to god, libertarians invent all sorts of fanciful universes in order to defend theoretical freedoms that relate to the market… yet you come down hard on the side of the state in this matter? I am the libertarian on this thread? Seriously?

    1. I am the libertarian on this thread? Seriously?

      I don’t think so, but tell you what … please rewrite the Miranda warning so that no criminal suspect, no matter how stupid, can fail to understand it.

      I’ll give you the starting point:

      “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you.”

      And the addition you seem to be advocating:

      “You can promptly end any questioning by law enforcement by verbally asserting your right to an attorney and to remain silent.”

      Insert extra verbiage for really stupid people here:

      And end with this:

      “Do you understand these rights as they have been read to you?”

      Go!

      (Note: if it gets too long, your stupid suspects will tune out. We’re talking people with short attention spans, say, no longer than THE CURRENT MIRANDA WARNING.

      1. I’m not the one advocating for any addition! I liked it the way it was. You want the individual, the suspect, to have to assert a right when before they had it to begin with, and if necessary the burden was on the evil state to prove you waived it.

        I am the libertarian on this thread, I agree with the article, and that makes all you guys trolls.

        1. And doesn’t it, at long last, feel good to be the libertarian rather than the statist?

          1. Yaaay Tony!

            “One of us.. one of us.. one of us…..”

      2. The reading-of-the-rights ritual doesn’t have to be any more complicated than it already is:

        You have the right to remain silent. Anything you say can and will be used against you in a court of law. If you decide not to answer questions this interview must stop. Even if you decide to answer questions now, you can stop at any time. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights? Will you answer questions?

        You don’t have to ask for an attorney, all you have to do is say “I choose not to answer any questions.”

        Whether you agree with SCOTUS or not, this case serves to highlight ambiguity in the way government authorities (aside from the Military) currently handle criminal suspects. Protecting the rights of criminal suspects is about ensuring the innocent ALWAYS go free. If we can think of a situation in which an innocent person is wrongly prosecuted because (s)he was not aware (s)he could end police questioning by speaking up, then we should so inform criminal suspects of that fact.

        In this case, the ‘suspect,’ by his own admission, seems to have been guilty. How would this discussion proceed if he were subsequently found to be innocent?

  33. Suspects must be told “You have the right to remain silent”, but what they are not told is that the only way to exercise that right is to not remain silent.

    1. Fail. Another way to exercise your right to remain silent (stay with me here, try and follow) is to REMAIN SILENT.

      This entire article is ridiculous; just a better written version of what they have up at the Daily Kos, where any ruling endorsed by Scalia or Thomas is always wrong, no matter the content.

      But I do like the “Miranda Puppet Show” idea mentioned above, and I can already visualize Sotomayor’s dicta in support:
      “To comport with the strict requirements of the 5th Amendment, the puppet show must be conducted in a culturally and racially appropriate manner. If the police officer conducting the questioning is white, the police puppet must also be white; if the suspect is a minority of Hispanic descent, so must the puppet representing the suspect be Hispanic, so that there can be no confusion for the suspect. If a white police officer attempted to represent himself with a Hispanic puppet, and demonstrated that the Hispanic puppet was not remaining silent but was talking, that would be evidence of intent to mislead the Hispanic suspect, and an impermissible infringement on the Hispanic suspect’s 5th Amendment rights.”

  34. You know, what this really shows is that libertarians interpret the Constitution to mean what they want just like every other political ideology does… so quit claiming the legal high ground already.

  35. It doesn’t say what people think it says. This guy was read his miranda rights, understood them, was silent for awhile, then decided to keep talking. I have talked to cops and they say it happens a lot, criminals who think they are “smarter” will even call and ask to talk AGAIN, just to try to give bad info.

    That’s all this is about. that if you don’t say “I want a laywer” and shut up, but keep on talking, then they can use whatever you say. They tell you “everything you say will be used against you” if you choose to keep on talking then that’s your choice.

  36. How about saying:
    “I will not speak to you without a lawyer. And I don’t want a lawyer, so am I free to go now?”

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