The Supreme Court Hears the Sounds of Silence

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

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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