June 1, 2010

Remaining silent is not an invocation of the right to remain silent.

Says the Supreme Court in a 5-4 decision, Berghuis v. Thompkins.
''Thompkins did not say that he wanted to remain silent or that he did not want to talk to police,'' [wrote Justice Kennedy for the Court]. ''Had he made either of these simple, unambiguous statements, he would have invoked his 'right to cut off questioning.' Here he did neither, so he did not invoke his right to remain silent.''....

''Criminal suspects must now unambiguously invoke their right to remain silent -- which counterintuitively, requires them to speak,'' [wrote Justice Sotomayor for the dissenters]. ''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.''
ADDED: Pinkerton predicted it:

57 comments:

EDH said...

I haven't read the case.

But, intuitively, if mere silence is an invocation of the "right to remain silent," wouldn't that mean police have to wait for a suspect to speak before they can intitiate any form of questioning?

Are police supposed to sit in an interrogation room waiting for a suspect to speak before questioning?

Ken said...

I hearby invoke my first amendment right: This is a poor ruling. After all I don't have to invoke my right to free speech before I start mouthing off.

Doesn't Miranda say that I have the right to REMAIN silent? It doesn't say that I have to declare that I am going to be silent.

Any lawyer who is mystified as to why lawyers are hated so much, look no further than this ruling.

Scott said...

Isn't the Constitutional right to not self-incriminate essentially a ban on torture?

So now, if you remain silent, the police can knock you around until you tell them you don't want to say anything to them.

This is the kind of weird-ass sophistry that diminishes the legal profession in the eyes of little people like me.

Brian said...

The details are what makes this case. It's a tough nut. The guy never said "I want my lawyer" or "I'm not answering any more questions," therefore invoking his right to remain silent. He was being interrogated, mostly remaining quiet, but occasionally giving answers like "yes" or "no" or "I don't know." If he wanted to remain silent, he should have just remained silent until his lawyer was present.

Yeah, otherwise you have to wait during the interrogation for the suspect to initiate talking.

Damon said...

Seriously - this is why people hate lawyers. So clear and unambiguous - remain silent, or speak and you waive the right.

The right to remain silent morphed into the right not to be questioned. So, how would Sotomayor apply her proposed rule. If you don't speak for 10 minutes then you have claimed the right? what about 2 minutes?

Skyler said...

The court epitomizes the literal definition of sophomoric sometimes. Law is idiotic.

Fred4Pres said...

But understand, just silence alone (if that was found to trigger cutting off the interview) would create all kinds of problems too. What it would mean is no interview could take place. Because there is almost always some interval of silence between the reading of the Miranda warnings and answering.

EDH nails it above. It is not too much to require a suspect to affirmately say NO.

Quayle said...

So let me get this straight: you don't have a right to remain silent unless and until you expressly communicate that you want to invoke that right?

What if you just say nothing? Can they cajole and harass you until you say you want to invoke your right to remain silent?

On first glance this law is an ass.

SteveR said...

That's always the problem with making up rights. Others can too.

Original Mike said...

''Criminal suspects must now unambiguously invoke their right to remain silent -- which counterintuitively, requires them to speak,''

Is this suppose to be profound?

Fred4Pres said...

And the Miranda decision is not exactly a right that is in the constitution, it is an interpretation of rights that are in the Constitution. So it is not the same as Free Speech.

I am not opposed to Miranda warnings. But I do not see why they need to be expanded.

Richard Dolan said...

This only comes up if, after having been read his Miranda rights (it's always a 'he'), the suspect decides to say something that can be used against him. Later, his lawyer asks the court to exclude his incriminating statements.

Nothing requires the suspect to speak, either to invoke his right to remain silent (he can just say nothing, in which event there is nothing to use against him) or he can speak (either to invoke his rights and say nothing more, or to ignore his rights and say something about the matter at hand which ends up implicating him in a crime). The cops did what they were supposed to do (gave him a paper listing them, read him some and had him read one of them). At that point, the choice to speak or not was the suspect's, a choice he got to exercise after having been informed about his rights. Having been told of his rights and having decided to speak nonetheless, it's hard to see what the purpose of excluding the evidence would be.

At the root of it all are two different views of the suspect -- a responsible adult answerable for his own choices, or a child-like victim having no real choices at all. Sotomayor wants to see police misconduct (the deterring of which was the original point of the Miranda rule) where there is none. Her argument would be persuasive if Miranda were a rule of aesthetics (that's the upshot of how her notion of 'fair trial principles' plays out here). But she's got the context all wrong -- aesthetic judgments are out of place here.

Pastafarian said...

OK, so the minority opinion here apparently says that the only way that evidence obtained by questioning defendants is usable in court is if the defendant actually explicitly says "I waive my 5th amendment rights" before questioning.

Right?

If a cop walks up to someone and asks them "Did you see what happened here?", and they say "Yeah, I just killed that guy", then this statement is inadmissible, because before he was asked this question, this person was silent, and was therefore invoking his right to remain silent.

So every time a cop is going to walk up to ask a citizen a question, the cop will have to record them stating that they waive their rights.

How unbelievably stupid. Is the idea just to make law enforcement as difficult as possible?

Am I missing something? Althouse, please explain their reasoning. Particularly if you agree with it. Sotomayor, after all, is the "reasonable, qualified" nomination that you'd hoped Obama would make.

Damon said...

Don't ever talk to the cops - shameless plug for one of my best law professors http://www.youtube.com/watch?v=i8z7NC5sgik

Robert said...

What a crazy decision. That's Scalia, Thomas, Roberts, and Alito for ya.

MadisonMan said...

See, this would never be a problem for me.

I can sit in a room, without speaking, for hours on end. If someone was interrogating me, expecting an answer, and I didn't want to talk, I would find it interesting to see how they would try to cajole a statement from me. Watching other people do things is interesting.

But I know people who, sitting in a quiet room with someone else, can't help but start to talk. It's like silence is a poison to them or something.

Not sure what I think about the ruling though. Requiring someone to state that they don't want to talk doesn't seem too onerous to me. But I'm not a lawyer.

Pastafarian said...

Quayle and Ken, everyone still has the right to remain silent. I think Richard explained it well -- it's a matter of admissibility of statements given during questioning.

Apparently, if the police ask you "Did you do it?", and you respond "Why, yes, I decapitated that young woman and ate her spleen", then this is inadmissible, according to 4 justices, because it's rude of the police to have asked you such a thing, and you hadn't given your permission to them to ask it.

Bizarre.

It's not even enough for the police to inform you of your rights before asking you the question. (Which is interesting to me just by itself -- why should they have to inform you of your rights? I thought that ignorance of the law was no defense). No, not only do they have to inform you of your rights in advance, but you have to formally announce "I will now incriminate myself and waive my fifth amendment rights."

Pastafarian said...

Robert, are you being serious? It appears as though several commenters here actually see the majority decision as a mistake.

If so, please explain. I'm mystified.

If the police inform someone of their rights, and they sit there passively silent during questioning (not torture, mind you, but questioning) until they eventually reveal that they did it, then why on earth would or should this be inadmissible?

TRO said...

This is not as deep as it sounds. The cops read you your rights (which under Miranda is only required when you are a) in custody AND b) being questioned - not either/or) and you say, no, I don't want to answer your stupid-ass questions and yeah I do want a lawyer. At that point the questions stop.

Or you can say nothing. Be silent. You have that right whether Miranda is read or not. But if after being read them you answer questions, well, that's on you, not the cops.

It's not rocket science. (Seriously, rockets are not involved.)

TRO said...

"If the police inform someone of their rights, and they sit there passively silent during questioning (not torture, mind you, but questioning) until they eventually reveal that they did it, then why on earth would or should this be inadmissible?"

The admissability of such statements may boil down to the length of time the officers questioned the subject. For an hour? Two? Ten? What breaks did they give him during that time? Did they remind him of his rights after each break?

Of course, the court has been playing with Miranda for some time now it seems and it's confusing to not only the public (who gets their information from TV and movies), but also the cops who get a different reading on policy every few months.

Pastafarian said...

TRO, I've heard stories of people breaking under interrogation (again, just questioning, not torture), and actually admitting to things they didn't do.

I've heard these stories, and I've never completely believed it. Cracking under the stress of....questions, asked in a stern tone of voice. I just can't picture that, unless we're getting into the sleep-deprivation zone of 20+ hours; and I assume that police are justifiably limited in what they can do in this regard.

tim maguire said...

This appears to be a correct decision inartfully rendered. One always has the right to remain silent, even after expressly waiving the right to remain silent. I think they are using the term to mean that the interview has to stop until a lawyer appears.

I don't see any problem with making a person say "I want to see a lawyer" before interrupting the interview until one arrives.

TRO said...

"I've heard these stories, and I've never completely believed it. Cracking under the stress of....questions, asked in a stern tone of voice. I just can't picture that, unless we're getting into the sleep-deprivation zone of 20+ hours; and I assume that police are justifiably limited in what they can do in this regard."

Interviewing is both an art and a science. It's not just asking questions and rarely involves yelling at someone, but more often involves building rapport and establishing trust. One of the more popular methods is the Reid Technique which has been taught to law enforcement agencies worldwide.

http://www.reid.com/


A good interview can take hours depending on the crime, the interviewer and the subject, but courts have ruled that there are limits on how long you can interview someone without the time itself becoming a factor in whether a subject's rights have been violated.

Methadras said...

Horrible ruling and frankly it contradicts implied consent doesn't it? If I have to unambiguously state that I'm invoking my right to remain silent, then is my ability to not say anything not an implied consent that I am remaining silent to begin with?

TRO said...

"Horrible ruling and frankly it contradicts implied consent doesn't it? If I have to unambiguously state that I'm invoking my right to remain silent, then is my ability to not say anything not an implied consent that I am remaining silent to begin with?"

That hurt my head . . .

Pastafarian said...

Methadras: Huh?

Seriously, I can't tell if you people are just fucking with me. Someone who finds this majority decision unacceptable, please explain why an admission of guilt should be inadmissible as evidence when the person's already been read his rights and understands them.

Because it's "counterintuitive" that you should have to state that you no longer wish to answer questions?

Isn't the fact that you answered it an intuitive indication that you wanted to answer the question? You know, the fact that you DID answer it, that's what Sherlock Holmes might call a "clue" that you...I don't know...felt like answering the son-of-a-bitch.

ET1492 said...

I didn't know much about the original Miranda decision, so I just read up on it.

I don't think I agree with it. I like the results, I just don't think the that the Miranda Warning was mandated by the Constitution.

I admit I didn't read a lot. Just skimmed a few law articles online and read a wikipedia entry, but it seems to me that Miranda v. Arizona should be a more controversial decision today than it seems. Is it just that most people think the Miranda rules are fair, even if they are extra-constitutional?

Hagar said...

But he did not "remain silent." He was read his Miranda rights and stated that he understood, and then decided to speak anyway.

Hagar said...

The Miranda warning is not exactly a new invention. It pretty much mirrors the English "Judges' Rules" that have been followed for more than a century, and I believe the FBI policy was to give a similar warning ("Le'me caution you....") well prior to WWII. I think Miranda just extended the policy to State police forces as well.

Joe said...

This is simply an extension of the perversity of Miranda which turns the concept of inalienable rights on its head. The notion that rights start or stop based on the recitation of a phrase is beyond moronic.

Our rights exist independent of government. The exist passively. They are not granted by government. Yet, the court can't grasp that point (just like they can't grasp that "Congress shall pass now law" means just that and "interstate commerce" means just that as well.)

And since when does the right to remain silent mean that the police have to stop asking you questions? (I'm speaking from a common sense perspective, not a twisted legal perspective which throws common sense out the window.)

Original Mike said...

How about we require the police to begin every question with the phrase, "You don't have to answer this, but ..."

Or maybe have it tattooed on their foreheads.

mccullough said...

Miranda is meaningless. It's either not a violation or there's an exception to it. It's been meaningless since about 1975.

c3 said...

And they call this a "law professor blog"!

so many opinions that just beg for a lawyer to stand up and EXPLAIN!

TRO said...

"How about we require the police to begin every question with the phrase, "You don't have to answer this, but ...""

Actually every time I begin a non-custodial interview - even an interview of a witness - I say, "You do understand that this interview is entirely voluntary and you don't have to talk with me." I say it about three times and even tell them that they won't hurt my feelings if they say no, just in case they are so weak-willed that they worry I might get personally upset about them saying no.

Original Mike said...

Is there no recognition of the fact that we want police to solve crimes? It has an enormous societal benefit. We have learned that police require restraint against unbridled interrogation, and I can see the good in informing a suspect that they can get counsel, but this is not a game where the sense of "fairness", or concern for the suspects feelings should be relevant.

buster said...

Given this ruling, the police should be required to state as part of the Miranda warning that the suspect must explicitly invoke the right to silence or else lose it.

Better still, they should be required, at the end of the Miranda warning, to ask the suspect whether he wants to invoke his right to silence, and proceed to questioning only if he explicitly declines to do so.

A complicated scheme, to be sure, but Miranda is a complicated scheme already.

Hagar said...

Joe,

Absent government, you have no rights whatever.

Joe said...

Hagar,

How naive. You still have rights, government or not. What government does is ensure you are allowed to exercise those rights [openly]. But those rights don't flow from government.

Methadras said...

Pastafarian said...

Methadras: Huh?


Let me rephrase as it may have been poorly worded. Internal thoughts and all.

"Remaining silent is not an invocation of the right to remain silent." Really? Then what is it? If I'm read my rights upon arrest and yet I say nothing, then I'm implying by not saying anything that I'm choosing to remain silent, no? I've consented through that implication that I'm remaining silent. Now, based on this ruling, I have to physically say that I choose to remain silent in direct contradiction to actually remaining silent? That, in my mind, contradicts implied consent because now consent of silence must be approved or denied by the physical act of talking.

So how far will this go? This is why lawyers are so hated. The convolutions that the law has been twisted into is enough to make one scream in agony at the sheer confusion of it all.

Methadras said...

Hagar said...

Joe,

Absent government, you have no rights whatever.


What? Please go bone up the emanation of your rights? They don't come from government.

Robert said...

The logic of the court is that the way you invoke your right is to assert it. like saying "I'm not talking. I want a lawer."

The word invoke implies some kind of action. Remaining mute is not sufficient.

Miranda is a ruling, not a numbered right. I think the ruling is logical and correct.

Sofa King said...

If I'm read my rights upon arrest and yet I say nothing, then I'm implying by not saying anything that I'm choosing to remain silent, no?

Not necessarily. It could be that you simply didn't want to answer that specific question, or you didn't understand, or are flashing back to Vietnam, whatever. The point is, even if you exercise your right to say absolutely nothing, they can keep questioning you. Only when you affirmatively say "I don't want to answer questions" do they have to stop the interrogation.

Ralph L said...

Remaining mute is not sufficient.
If he'd remained mute, it's moot, but he didn't, stupid yute.

Stop calling
Stop calling
I don't want to talk anymore
I shot his head and his heart on the dance floor.

Peano said...

Lots of comments above are confusing the having of a right with the invoking of a right.

Thompkins moved to exclude evidence on the ground that he had invoked his right to remain silent. So it's reasonable to ask exactly what he said or did by way of invoking that right.

The answer plainly is that he did nothing. He kept responding to some of the questions put to him.

Compare the right to have an attorney present during questioning. If a defendant never says he wants a lawyer, he hasn't invoked that right.

holdfast said...

Actually, remaining truly mute would be perfectly fine. It's remaining almost mute that will get you in trouble.

Almost Ali said...

What a surprise, the Wise Latino awash in subjective nuance. Add Kagan, liberal nirvana.

More brains and less Affirmative Actors, p-l-e-a-s-e.

blake said...

I don't see why the police should ever inform anyone of their rights.

Ignorance should be their greatest weapon! Ignorance, and surprise! And maybe a conmfy chair.

We have universal education! How could anyone possibly be unaware of the generosity of the state in granting rights?

Hagar said...

Rights are privileges we vote ourselves in return for complying with the obligations exacted by community living.

They are not God-given, and they do not emanate in penumbras arising from either the Constitution or the swamps at night.

TRO said...

"Rights are privileges we vote ourselves in return for complying with the obligations exacted by community living.

They are not God-given, and they do not emanate in penumbras arising from either the Constitution or the swamps at night."

Nonsense. I would say more but really it's nonsense on its face so why bother.

Stephen said...

When I want someone to hear something I say, counter-intuitively, I have to say it loud enough for them to hear it.

''Criminal suspects must now unambiguously invoke their right to remain silent -- which counterintuitively requires them to speak,''

Original Mike said...

It's more than nonesense. It's dangerous.

c3 said...

OK, I went to SCOTUS blog to review the case since we were just "opinionating" and not analyzing.

This seems "reasonable" to me:
The one theme underlying both parts of the opinion for the majority was that the detectives here had given Thompkins his Miranda rights, and had validly determined that he understood them. After that, the Court made clear, the way the interrogation went — or stopped — depended upon choices that Thompkins had available to him. Failing to explicitly invoke his right to silence, and given it up by briefly confessing, Thompkins opted to give evidence against himself, according to the ruling.

c3 said...

And also from the SCOTUS blog post this final "fun" fact:
one curious facet of the decision as it emerged was that a number of police manuals do explicitly require more of questioning officers than the Court’s decision now does. Many ... tell police that they should not do any questioning at all until they have obtained an explicit waiver of the suspect’s rights. It is now clear that that is not constitutionally required.

Pastafarian said...

Hagar, that's a very strange attitude. I thought you were conservative. Maybe I have you confused with another commenter.

Don't you think that you were born with rights, that you were born a free man? Don't you think that even those unlucky enough to be born in North Korea have basic human rights, and that it's been unjustly taken away by the government?

Or is this just a semantic thing?

Methadras said...

blake said...

And maybe a conmfy chair.


Not the comfy chair!!!

Methadras said...

Hagar said...

Rights are privileges we vote ourselves in return for complying with the obligations exacted by community living.

They are not God-given, and they do not emanate in penumbras arising from either the Constitution or the swamps at night.


You are out of your fucking mind and have zero clue of what you are talking about. It's not even rational.

Hagar said...

I was born a baby, coddled by my parents and the society around me, and anything but "free."

P.
Remember Esau? The one who sold his birthright for a mess of pottage?

You should be careful who you vote for because your "rights" and "freedoms" are very much subject to being traded for some nice porridge if you don't care enough to protect them.

So, no, it's not just a question of semantics.