Suspects Must Invoke Miranda Right To Stay Silent

The Supreme Court has given police greater latitude in questioning suspects, cutting back yet again on the famous Miranda decision. By a 5-to-4 vote, the 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.

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The Supreme Court has ruled that a criminal suspect who wishes to remain silent will first have to speak up. In a five to four vote on a case involving the Miranda rule, the justices said that simply refusing to answer questions is not enough to invoke the right to silence. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: The ruling came in the case of Van Chester Thompkins, convicted in the shooting death of a man outside a Michigan mall. When Thompkins was arrested and advised of his rights, he refused to answer questions for close to three hours. Police said their questioning was more like a monologue until one of the detectives asked Thompkins, do you pray to God to forgive you for shooting that boy down?

Thompkins, his eyes welling up with tears, said yes. That answer was used at trial to convict him of first degree murder, but a federal appeals court said using the answer had violated Thompkins' right to remain silent and threw out the conviction. Yesterday the Supreme Court reinstated it.

Writing for the five-member court majority, Justice Anthony Kennedy said a suspect's silence is not an invocation of the right to remain silent. Instead, the suspect must explicitly speak up to invoke that right. And if the suspect answers a question, even after three hours of silence, that answer amounts to a waiver of his right to remain silent.

Justice Sonia Sotomayor, in her first major dissent since joining the court, accused the majority of turning the landmark 1966 Miranda decision upside down. Contrary to the specific requirements set out in 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 exemplify how difficult it is for a suspect to actually invoke his right to remain silent. In a case from Louisiana, for instance, 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 yesterday's Supreme Court decision will likely lead to more such decisions, it was greeted derisively by criminal law professors from right to left. Harvard Law Professor William Stuntz, a conservative, had this take on the decision.

Professor WILLIAM STUNTZ (Harvard Law School): The doctrine makes no sense. 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.

TOTENBERG: Stanford Law Professor Pam Karlan, a liberal, asked where the line will be drawn in future.

Professor PAM KARLAN (Stanford Law School): What about the case where somebody is questioned for 12 hours, or 14 hours, while they resolutely say nothing, and eventually they just get worn down.

TOTENBERG: But in law enforcement, the reaction was quite different. Former Newark police captain Jon Shane, a professor at John Jay College of Criminal Justice, says the ruling will make life easier and simple for police on the ground.

Professor JON SHANE (John Jay College of Criminal Justice): Theyre telling them now, in this decision, that someone's silence does not mean that they are protected, necessarily, by the Miranda warning. That's a good thing.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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