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.