High Court: Speak Up If You Want To Remain Silent

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The U.S. Supreme Court on Tuesday has given police greater latitude in questioning suspects, cutting back yet again on its famous Miranda decision.

By a 5-to-4 vote, the high court ruled that a properly warned suspect who remains largely silent for hours of questioning has not invoked his right to remain silent and that even a one- or two-word answer to a single question can be used against him at trial.

In the decades since Miranda, the Supreme Court has ruled that if you don't explicitly ask for a lawyer, you can be questioned without an attorney present. Now, the court has said that if you don't explicitly invoke your right to remain silent, the cops can keep asking you questions, too, even if you remain silent for hours.

The Case

The ruling came in the case of Van Chester Thompkins, one of three men involved in a Michigan shooting. A year after the crime, Thompkins was arrested and interrogated by two Michigan policemen. They advised him of his right to an attorney and his right to remain silent, made sure he spoke English, and questioned him, though they said it was more a "monologue" by the interrogators. For nearly three hours, Thompkins said nothing, except that his chair seat was hard and that he didn't want a peppermint. Finally, one of the policemen asked him: "Do you pray to God to forgive you for shooting that boy down?" Thompkins answered, "Yes," and that answer was used at his trial to convict him of first-degree murder.

The United States Court of Appeals for the 6th Circuit overturned the conviction because it said that evidence was obtained in violation of the defendant's right to remain silent.

But on Tuesday, a closely divided Supreme Court reinstated the conviction and declared that police may continue questioning even a silent defendant unless he explicitly invokes his constitutional right not to answer questions. Writing for the five-member majority, Justice Anthony Kennedy conceded that the Supreme Court's 1966 Miranda decision did have more strict rules on what constitutes a waiver of a suspect's rights, but he said that the main purpose of Miranda was to advise a suspect of his rights and make sure he understands them. That was done in the Thompkins case, the Supreme Court said, and Thompkins' "uncoerced" answer to a key question after three hours of silence amounted to a waiver of his right to remain silent.

Writing for the four dissenters, Justice Sonia Sotomayor, who spent five years as a prosecutor in the Manhattan District Attorney's Office, accused the court majority of turning the landmark Miranda decision "upside down." Contrary to the teaching of Miranda, she said, now "suspects will be legally presumed to have waived their rights," even if they have given no explicit waiver.

In a footnote, Sotomayor listed a half-dozen lower court decisions that she said exemplified how difficult it is for a suspect to actually invoke his right to remain silent. When a suspect said, "I'm not going to talk about nothin," the federal appeals court in Chicago said the statement was a taunt, not an invocation of the right to remain silent. Or in another case, from Louisiana, a court construed as ambiguous the statement, "OK, if you're implying that I've done it, I wish to not say any more."


Perhaps because these kinds of rulings are likely to continue under Tuesday's Supreme Court decision, the ruling was greeted with considerable scorn by criminal law professors from left to right.

Harvard Law professor William Stuntz, considered something of a conservative, says that the ruling flies in the face of reality, since almost anyone will answer some questions if interrogated in a small room by police officers for hours on end. "Police don't need rubber hoses to get people to answer questions," he says. "Persistent questioning alone" will get suspects to give answers eventually. And when a suspect finally does answer a question, the Supreme Court now says those answers amount to a waiver. Concludes Stuntz: "Miranda just doesn't mean much."

Stanford Law professor Pam Karlan, on the liberal side of the spectrum, wonders, what is the cutoff? What if somebody is questioned for "12 hours, or 14 hours while they resolutely say nothing" until they eventually "just get worn down"?

Stanford Law professor Robert Weisberg, who lectures law enforcement officers about criminal law, says that Miranda put the burden on law enforcement to show that a suspect had been informed of and waived his rights. After Tuesday's decision, he says, "The burden is now the other way — virtually anything a defendant says at any point during any kind of interrogation in response to any kind of question is going to constitute a waiver of his right to silence."

Praise For Ruling

"The doctrine makes no sense," says Harvard's professor Stuntz. "It provides lots of protection to suspects who don't need protecting — to the best educated, and to recidivists who know how to game the system. And it provides no protection to the people who need it most. It's dumb law."

Police officers, though, had a different take on the ruling. Former Newark police Capt. Jon Shane, now a professor at John Jay College of Criminal Justice, sees the decision as helpful. He says the court has told police "in this decision that someone's silence does not mean that they are protected necessarily by the Miranda warning." He says, "That's a good thing" because it not only gives police greater flexibility in questioning, it makes the process simpler and less likely to provoke legal problems once the case gets to court.



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