Supreme Court: Suspects have to explicitly invoke right to remain silent

posted at 2:20 pm on June 1, 2010 by Ed Morrissey

The big surprise to this decision is that it came down to a 5-4 split, with Justice Anthony Kennedy providing the deciding vote.  The Supreme Court overturned a ruling from the appeals court that threw out a confession and a conviction in a murder case where the suspect provided monosyllabic answers to questions for three hours before finally admitting guilt, but did not explicitly invoke his right to remain silent.  The court’s decision equates that invocation with the right to an attorney, which must be explicitly demanded:

The Supreme Court ruled Tuesday that suspects must explicitly tell police they want to be silent to invoke Miranda protections during criminal interrogations, a decision one dissenting justice said turns defendants’ rights “upside down.”

A right to remain silent and a right to a lawyer are the first of the Miranda rights warnings, which police recite to suspects during arrests and interrogations. But the justices said in a 5-4 decision that suspects must tell police they are going to remain silent to stop an interrogation, just as they must tell police that they want a lawyer. …

The officers in the room said Thompkins said little during the interrogation, occasionally answering “yes,” “no,” “I don’t know,” nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for “shooting that boy down,” Thompkins said, “Yes.”

He was convicted, but on appeal he wanted that statement thrown out because he said he invoked his Miranda rights by being uncommunicative with the interrogating officers.

The Cincinnati-based appeals court agreed and threw out his confession and conviction. The high court reversed that decision. The case is Berghuis v. Thompkins, 08-1470.

Nothing in the Constitution guarantees that police have to read minds.  In a sense, the Miranda warning acts as a entree to questioning in that suspects have to confirm that they understand their rights before the questioning begins.  If they understand their rights and choose not to explicitly invoke them, then why do police have to read someone’s mind in order to stop the interrogation? And at what point do the police have to read minds?  In the first two hours?  One hour? Fifteen minutes?  In order to conduct investigations, the police have to get the reluctant to talk to them, and that sometimes takes quite a while.  If they start by informing the suspect that they have the right to remain silent and confirm their understanding of that right, then the default assumption should be that the suspect hasn’t invoked that right by saying, “I don’t want to talk to you.”  Passive aggressive mutterings won’t do.

Besides, as the decision states, the right to an attorney has to be explicitly invoked before an interrogation stops.  The right to remain silent isn’t lesser or greater than the right to legal representation during an interrogation.  Why should it be treated any differently?

Citizens have rights, but they also have responsibilities.  The Miranda warning removes any argument that suspects aren’t fully informed of the former, and they have to be responsible for their own actions.  The four justices who ended up on the wrong end of this decision would have forced police not just to inform people of their rights, but to have ESP as well.  This should have been a 9-0 decision.


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Comment pages: 1 2

year_of_the_dingo on June 1, 2010 at 5:39 PM

You haven’t been staying up with some of the “science” that is being questioned by reputable scientists. And as Esthier has mentioned the people who have been raised on CSI and CSI style programs expect evidence to be presented that many times does not exist. I have been following the issue and criminals are leaving less “science” based evidence because they watch the same programs as the jurors do.

chemman on June 1, 2010 at 6:45 PM

I don’t at all see how it is an expansion. He could have used his right. He didn’t. He could have invoked it and possibly stopped the interview. He didn’t.

Also, he’s a murderer.

Justice all around.

Esthier on June 1, 2010 at 6:06 PM

The Law is not Survivors. We punish people based on culpability. We don’t punish people additionally because they’re stupid or if they make mistakes during trial. Or at least we try not to. We strive for a system that’s equitable. Indeed, we believe that in committing the same crime, an more intelligent person is more culpable than someone more simple-minded, because he should know better. Are you going to tell me that it’s more fair that, say, a graduate from Harvard Law has a better chance at acquittal than a plumber in Ohio? Is it fair that a rich man, able to afford the best lawyer has a better chance of escaping justice than a poorer soul?

year_of_the_dingo on June 1, 2010 at 7:38 PM

Are you going to tell me that it’s more fair that, say, a graduate from Harvard Law has a better chance at acquittal than a plumber in Ohio? Is it fair that a rich man, able to afford the best lawyer has a better chance of escaping justice than a poorer soul?

year_of_the_dingo on June 1, 2010 at 7:38 PM

You must be new here. Many HA posters would answer yes to those questions.

crr6 on June 1, 2010 at 8:24 PM

Staying silent isn’t just about being guilty, but of incriminating yourself which you can do when 100% innocent. Get a fact wrong and you’re a liar and they can get you just on that. Never ever talk to the police. There’s a court of law for questioning people.

MrX on June 1, 2010 at 8:26 PM

Here is an excellent video explaining why you should NEVER talk to the police:

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

Lengthy, and there is a part II. Know your rights!

GnuBreed on June 1, 2010 at 3:48 PM

From what I’ve seen of them, they won’t say, “OK, I see your exerting your Constitutional rights, Ma’am/Sir-have a nice day.”

Dr. ZhivBlago on June 1, 2010 at 8:47 PM

Yep. I guess the dissenters don’t understand the meaning of the part of the Miranda warning that goes“you have the right to remain silent and anything you say can and will be used against you”.

Sheeesh.

vnjagvet on June 1, 2010 at 6:13 PM

But ya know what?

When you answer police questions ya aint exercising your right to remain silent.

I guess you don’t realize that the other side of Miranda is when you exercise your right to remain silent the interrogation must come to an end. The right to remain silent is meaningless if the interrogation continues as the heat lamps are turned up. The facts presented here, make it quite obvious after the first ten minutes that the defendant was exercising his right. To hold that he had to verbally state that right is absurd. That this isn’t seen as a loss of freedom and rights for all american makes it a sad day indeed. The boot of the government is getting quite heavy on the neck of our freedoms.

donabernathy on June 1, 2010 at 9:07 PM

“If they understand their rights and choose not to explicitly invoke them, then why do police have to read someone’s mind in order to stop the interrogation?”

Ed.. why does a defendant have to explicitly invoke his right to remain silent. This isn’t a right granted by the government to individuals. This is a right given by God and the Government should be protecting that right. It shouldn’t be the defendants burden to explicitly invoke it. It should be the governments burden to show he explicitly waived it. In the case at hand a couple of groans and moans after 2 and 3/4 hours of interrogation touches the heavens of denial that this defendant wasn’t exercising that right.As far a police reading minds. What would you “consider making eye contact as his responses”?

donabernathy on June 1, 2010 at 9:33 PM

Ok, as Ed and a few commenters have stated, law enforcement are not mind readers. After being read the Miranda warning (not rights), a simple yes or no is all that is required to discontinue interrogation (not speaking with the subject). For the so-called libertarian, I ask this:

If your family member is a victim of a crime, would you be content that the police did their job to the fullest if you found out they gave up on questioning because the defendant was “unclear” on whether or not he would talk about the crime?

ajsleepy on June 1, 2010 at 10:14 PM

donabernathy,

If he was able to “groan and moan”, why couldn’t he invoke his right to an attorney or to end questioning?

ajsleepy on June 1, 2010 at 10:19 PM

If he was able to “groan and moan”, why couldn’t he invoke his right to an attorney or to end questioning?

ajsleepy on June 1, 2010 at 10:19 PM

gotta love the logic behind ya got the right to remain silent… but first ya gotta break that silence and tell us what ya doing…. cause we are to dumb to figure it out unless ya tell us.

But what is even more amusing is the court deciding that a defendant didn’t invoke his right based on a couple of yes, no’s and I don’t want a peppermint without any relationship to a QUESTION.

roflmao

donabernathy on June 1, 2010 at 11:08 PM

“I’m not talking and I want a lawyer.” Not difficult.

I agree, it’s easy, but not every police officer takes an oath to inhabit and enforce the laws of Unicorn Land.

My own experience as a tween in the ’80s gave me a different perspective of the law and its application than what’s represented here. In general I’m a smart guy, but the kind of pressure the detective thugs on many police forces can put to bear on an unsuspecting person can make them admit to just about anything.

In 7th grade, I was arrested and hauled downtown, ostensibly for sexual assault and rape.I was 13. I didn’t even have hair there yet.

The accuser was a serial liar and drama queen, who had major emotional issues that got her committed a few years later. The school’s administration knew that fact, and tried to tell the police, but they had a hot case, and arrested anyone and everyone they could, including kids that weren’t even at school the day the girl said she was assaulted.

I was hauled in along with around 7 others for “sexual assault and gang rape” of a little 11 year old girl.

I was informed of my Miranda rights, and then immediately asked as many questions in 5 minutes as I’ve ever been asked since. My first asnwer was, “I want to talk to my mom.” My second was “Can I talk to my dad?”.

I was scared to death, and I had no idea what was going on.

The questioning should have been stopped at my first request, but it wasn’t. In fact, the bowbeating went on for at least 2 hours until my parents showed up on their own with the Chief Of Police, who happened to know my dad. The police never called either of my parents. The only reason tehy found out was because the principal of the school defied the police’s orders and called everyone’s parents after they left the school, almost an hour after we were hauled away.

The Chief put all of the a$$hats on leave, and fired a few, including one who threatened to kill me and all my friends in teh car we roed in on, aince the accuser was a friend’s daughter.

YOud think it would have ended there, but the case went to court, and the questioning was admitted as evidence, and accepted by the judge.

The only reason I’m not a juvie grad is because the officers who were fired had directly threatened our lives. the only reason that came up is because all the kids swore to the fact, and there was an open mic to dispatch when the thug was making a threat.

Knowing what I’ve seen with my own eyes, when authrities brutalize the people they are sworn to protect, I have to give this SCOTUS decision an Obama B- (AKA an F in any non-public school).

I WISH the decision was right in my mind. I really do, but the problem with the law and its enforcement, is that people get involved and muck the whole thing up.

If there was any other evidence other than the trick question I read about above, then I’d be fairly inclined to agree with the decision, but as I just stated, the only thing that kept me from a real life of hell and desparation was an open CB to Dispatch, which, but for the grace of God, I’m absolutely sure was never intended by the police.

Few Things Considered on June 1, 2010 at 11:43 PM

You must be new here. Many HA posters would answer yes to those questions.

crr6 on June 1, 2010 at 8:24 PM

You may not be very new here, curr6, but you are certainly more like the a$$hats on the police force I was just referring to in my post than anyone that gives a carp about people other than himself.
I think your mom’s calling you upstairs for dinner.

Few Things Considered on June 1, 2010 at 11:47 PM

Final thought on this topic.

I think hell has froze over.

Today I find myself on the side of the dissent opinion and in agreement with Huffpo (I proudly wear my Banned Badge). But they are right on this one. I guess that proves even a blind squirrel finds an acorn every once and a while.

What I truly find disheartening are individuals that believe in limited government and personal freedom, turn a blind eye on defendants that have the weight of the State bearing down on them. The state has so many advantages. To place the Miranda burden of proof on a defendant is a diminution on all of our liberties. Just one more brick on that Obama road to Fascism.

roflmao

donabernathy on June 1, 2010 at 11:48 PM

Staying silent isn’t just about being guilty, but of incriminating yourself which you can do when 100% innocent. Get a fact wrong and you’re a liar and they can get you just on that. Never ever talk to the police. There’s a court of law for questioning people.

MrX on June 1, 2010 at 8:26 PM

+10

If I were less wordy (when I actually do post every 6 months or so), I’d have said it exactly like that!

Few Things Considered on June 1, 2010 at 11:50 PM

If your family member is a victim of a crime, would you be content that the police did their job to the fullest if you found out they gave up on questioning because the defendant was “unclear” on whether or not he would talk about the crime?

ajsleepy on June 1, 2010 at 10:14 PM

And if your family member was arrested, informed of his rights,and then questioned until he did crack without giving him his “phone call” (or in my case, my mommy when I was 13), and the questioning “revealed” guilt – AKA “When you beat your wife, do you feel better? Yes Or No?” – Would you be content to know that your family member is in jail because the police “did their job”?
Wouldn’t a rubber hose help things along? why waste the time with all the trick questions when you an just beat it out of them?

This isn’t a slippery slope, it’s a gaping crevasse when the timing of things can’t be directly established. Noe every interrogation is recorded with video or audio, even now. I’m sure at least half of the interrogation rooms in teh country don’t have cool 2-way glass, $10K cameras, stereo recording equipment, and heart rate monitors in the chairs.

Even if they did, like in the movies, the thugs sometimes switch off the recording devices to get what they want.

I’m NOT saying that even a significant minority of police are bad, in fact, the largest majority of the police are VERY good people in almost every way, but detectives have to solve crimes. It’s their job. In some cases, when they “just know” the suspect is guilty, the temptation to get the confession can be overwhelming, and the inclination can easily be to think “what’s a few grains of wheat when we can take out so much chaff?”

Few Things Considered on June 2, 2010 at 12:06 AM

If he was able to “groan and moan”, why couldn’t he invoke his right to an attorney or to end questioning?

ajsleepy on June 1, 2010 at 10:19 PM
gotta love the logic behind ya got the right to remain silent… but first ya gotta break that silence and tell us what ya doing…. cause we are to dumb to figure it out unless ya tell us.

But what is even more amusing is the court deciding that a defendant didn’t invoke his right based on a couple of yes, no’s and I don’t want a peppermint without any relationship to a QUESTION.

roflmao

donabernathy on June 1, 2010 at 11:08 PM

Way to avoid the question. After being read Miranda, the subject is asked if they understand and if they are willing to speak without an attorney. Again, those simple yes and no’s that he was able to mutter would have sufficed. So why not use them?

ajsleepy on June 2, 2010 at 6:12 AM

If your family member is a victim of a crime, would you be content that the police did their job to the fullest if you found out they gave up on questioning because the defendant was “unclear” on whether or not he would talk about the crime?

ajsleepy on June 1, 2010 at 10:14 PM
And if your family member was arrested, informed of his rights,and then questioned until he did crack without giving him his “phone call” (or in my case, my mommy when I was 13), and the questioning “revealed” guilt – AKA “When you beat your wife, do you feel better? Yes Or No?” – Would you be content to know that your family member is in jail because the police “did their job”?
Wouldn’t a rubber hose help things along? why waste the time with all the trick questions when you an just beat it out of them?

This isn’t a slippery slope, it’s a gaping crevasse when the timing of things can’t be directly established. Noe every interrogation is recorded with video or audio, even now. I’m sure at least half of the interrogation rooms in teh country don’t have cool 2-way glass, $10K cameras, stereo recording equipment, and heart rate monitors in the chairs.

Even if they did, like in the movies, the thugs sometimes switch off the recording devices to get what they want.

I’m NOT saying that even a significant minority of police are bad, in fact, the largest majority of the police are VERY good people in almost every way, but detectives have to solve crimes. It’s their job. In some cases, when they “just know” the suspect is guilty, the temptation to get the confession can be overwhelming, and the inclination can easily be to think “what’s a few grains of wheat when we can take out so much chaff?”

Few Things Considered on June 2, 2010 at 12:06 AM

And this has what relation of simply stating “yes or no” in responding to the Miranda warning? Sounds more like red herrings and conjecture from your personal experience than legal opinion.

ajsleepy on June 2, 2010 at 6:21 AM

What I truly find disheartening are individuals that believe in limited government and personal freedom, turn a blind eye on defendants that have the weight of the State bearing down on them. The state has so many advantages. To place the Miranda burden of proof on a defendant is a diminution on all of our liberties. Just one more brick on that Obama road to Fascism.

roflmao

donabernathy on June 1, 2010 at 11:48 PM

Yes, Obama’s first SCOTUS nominee dissents vocally from the opinion, yet it’s a “brick on that Obama road to Fascism.” Really?

You also have the right to bear arms and free speech, but it’s on the INDIVIDUAL to assert those rights.

The “burden of proof” in this case was a “yes” or “no” in regards to a warning the SCOTUS requires law enforcement to use in regards to information that may be used against someone during interrogation. It’s not a dimunition on any of our liberties.

ajsleepy on June 2, 2010 at 7:00 AM

One more way for the lawyers and judges to release those poor murderers and rapists into our terrible American society because they had such rotten parents and a poor upbringing. Gosh, I feel so bad for them. Now they’ll have just one more chance to stab, shoot, rape and rob our terrible American citizens. But they’ll have to remain silent when caught if they want to do it all over again.

afotia on June 2, 2010 at 7:56 AM

I am slightly agnostic in this decision. I cant seem to find the full decision, anyone seen it online?

Squid Shark on June 2, 2010 at 8:49 AM

afotia on June 2, 2010 at 7:56 AM

WTF are you talking about. Did you even read the article? Or are you just coming on to complain about criminal procedure.

Squid Shark on June 2, 2010 at 8:50 AM

gotta love the logic behind ya got the right to remain silent… but first ya gotta break that silence and tell us what ya doing…. cause we are to dumb to figure it out unless ya tell us.

donabernathy on June 1, 2010 at 11:08 PM

You can sit there and say nothing while they interrogate you for hours, and any utterance you make, can be and will be used against you, or you can say, I want a lawyer (or attorney) and I am invoking my right to remain silent. Which should stop the interrogation, at least until your lawyer arrives.

Your choice. Which ever is easier.

Slowburn on June 2, 2010 at 9:46 AM

They will need to change the body of the miranda warning clear on this point.

Squid Shark on June 2, 2010 at 10:11 AM

the Socialist 4 is a clear example of just why ANY Socialist should NOT be allowed to join the SCOTUS, Socialism was created specifically to destroy Capitalism as enshrined in the Declaration of Independence and the US Constitution, and any Socialist will be guaranteed to gut the rights and freedoms contained therein.

mathewsjw on June 2, 2010 at 1:54 PM

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