Posted by Edmond Geary | Posted in Constitutional rights, Murder | Posted on 07-09-2011
Everyone knows from thousands of television programs that someone has a right to silence when arrested. On television, that right is rarely exercise since it makes better theater to include an interrogation scene. In real life as well, the right to remain silent is rarely exercised, often because people believe they will look guilty. But t he right to remain silent is commonly understood to exist
How to exercise the right to remain silent is not commonly understood, however. Most people are afraid that if they declare their wish to remain silent can be used in evidence against them. It cannot. The very existence of a right to remain would be meaningless if its use were presented to a jury as prosecution evidence.
So, when someone is read his Miranda Rights, does he just remain silent, and that act of silence constitute the exercise of the right to remain silent? Some people have thought so. It could make sense for it to operate that way, but it depends on the courts say. Now the U.S. Supreme Court has told us, and the answer is no.
Van Chester Thompkins was accused of shooting another man in in Michigan in 2000. When he was read his Miranda rights, he refused to sign the acknowledgment form which would have given acknowledgment that he understood his rights. He then remained silent for three hours of police interrogation. Finally, a police officer asked a few questions of Thompkins, the last one of which which was, “Do you pray to God to forgive you for shooting that boy down?”
Thompkins answered affirmatively to that question, and that response was used as evidence against him at his trial. He was convicted of first-degree murder. His appeal of that conviction found favor at the U.S. Court of Appeals for the Sixth Circuit in Cincinnati. That court agreed Thompkins’ response should have been excluded as protected speech under the Fifth Amendment right to remain silent on the rationale that the prosecution could not prove Thompkins had knowingly and voluntarily waived his right.
After winning that round, however, Thompkins lost the final round at the U.S. Supreme Court in the decision entitled Berghuis v. Thompkins. In a 5-4 decision, Justice Kennedy wrote that decisions from the Court issued since the Miranda decision had diminished the language of the original Miranda decision. A more sensible rule, Justice Kennedy wrote, would be to put the burden on suspects to invoke their rights, affirmatively. “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 stated.
Justice Kennedy was joined by Chief Justice John Roberts, Justices Scalia, Thomas and Alito in the opinion. Justice Kennedy said that someone who knew their rights and acted “in a manner inconsistent with their exercise might be presumed to have waived their rights. The point he made was that responding to police questioning is itself an implied waiver of the right to remain silent.
But Justice Sotomayer in her dissenting opinion, then picked up that point from the majority opinion and questioned it as a paradox. “A suspect who wishes to guard his right to remain silent must, counterintuitively, speak.”
She went on in her dissent, joined by Justices Stevens, Ginsburg and Breyer, to urge that the principles in the majority’s decision “flatly contradict” earlier decisions from the Court. She said the better practice when faced with ambiguous responses from a suspect, as in this case, would call for the police to ask follow-up questions like, “Do you want to talk to us?”