Right to Remain Silent-Diminished
Posted by Edmond Geary on 06-12-2010
When you are arrested, you have the right to remain silent. Everyone knows that. But if you simply maintain silence, the police can continue to question you until you finally talk. That is the recent ruling from the United States Supreme Court. If you want to protect your right to remain silent, you must, interestingly, speak up to assert that right.
In the case of Berghuis versus Thompkins, the Supreme Court decided by a vote of 5-4 in a split along well-known ideological lines not to suppress the statements of a suspect who incriminated himself after 3 hours of police interrogation. Justice Anthony Kennedy wrote the majority opinion which decided that courts need not suppress statements made by defendants who receive the “Miranda” warning and do not expressly waive their rights and speak only after remaining silent through hours of interrogation. Justice Sonia Sotomayor wrote her first major dissent. She wrote that the majority’s decision “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.”
The case involved a Michigan man, Van Chester Thompkins, accused of shooting a man to death in 2000. He was arrested a year later and read his Miranda rights. He refused to sign a form to acknowledge he understood his Miranda rights. He then sat through three hours of interrogation, silent.
Then, after two hours and forty-five minutes into the interrogation, Thompkins answered with the answer, “yes,” to three questions: “Do you believe in God?” “Do you pray to God?” “Do you to pray to God to forgive you for shooting that boy down?” His answer to the last question was introduced as evidence against him at his trial, at which he was convicted of murder in the first degree. The U.S. Court of Appeals had ruled that statement should have been excluded because the prosecution could not prove Thompkins did not knowingly and voluntarily waive his right to remain silent, and it was that decision the U.S. Supreme Court reversed.
The famous 1966 U.S. Supreme Court decision of Miranda versus Arizona ruled that a “valid waiver will not presumed from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” It also said the government faced a “heavy burden” in trying to prove that a suspect’s waiver was knowing and intelligent.
Justice Kennedy in Berghuis acknowledged that “some language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement.” Justice Kennedy then said that decisions Miranda have diminished its language, and a more sensible rule put the burden on suspects to invoke their rights.
“A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,” Justice Kennedy wrote. He said that people who knew their rights and acted “in a manner inconsistent with their exercise’ might be presumed to have waived their rights, meaning that responding to police questioning in itself an implied waiver of the right to remain silent.” As criminal defense lawyers know, just because the Miranda rights are read, many suspects do not understand their rights; They often have the impression that is not really a right which they can actually invoke.
Justice Kennedy was joined in the majority opinion by Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts.
Justice Sotomayer’s dissent pointed out the majority opinion created a paradox. “A suspect who wishes to guard his right to remain silent must, counterintuitively, speak.” She said the principles flatly contradict earlier decisions from the court. “At best, the court today creates an unworkable and conflicting set of presumptions. At worst, it overrules sub silentio an essential aspect of the protections Miranda has long protected.” She was joined in her dissent by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.