Supreme Court: Speak Up To Remain Silent

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"You have the right to remain silent," but only if you speak up first. Host Michel Martin talks with George Washington Law School professor Paul Butler about how not speaking up may be "used against you in a court of law."


I'm Michel Martin, and this is TELL ME MORE from NPR News.

Later in the program we'll hear from two artists whose decision to continue to perform together for more than a decade in a part of the world where even casual relationships across religious or cultural lines can be difficult is making a statement bigger than the music itself. But the music is pretty nice too. We'll hear from Mira and Noa in a few minutes.

But first, we turn to two conversations about this country's justice system. You'll hear from attorney and scholar Michelle Alexander in a few minutes. She says this country's justice system is so biased, especially against black males that it amounts to the new Jim Crow. You will hear her provocative argument from her directly in just a few minutes.

But first, though, we want to take a look at a new Supreme Court ruling about the rights we have while being questioned by police. Now, you don't need to be a legal scholar to know about the so-called Miranda rule, especially the part about you have the right to remain silent. Anything you say can and will be used against you in a court of law.

Now, the reading of a suspect's rights by a police officer is as much a part of American pop culture as it is part of our legal culture. But now there is a new interpretation of that right that may affect how that right is exercised. The court ruled yesterday on a narrow 5 to 4 vote that a suspect must say that he or she is asserting the right to remain silent after Miranda Rights have been read.

We wanted to know more about this so we've called Paul Butler. He's a former federal prosecutor, a law professor at George Washington University. And he's the author of "Let's Get Free: A Hip-Hop Theory of Justice," which is now just out on paperback. He's with us now. Thanks for joining us.

Professor PAUL BUTLER (Law, George Washington University; Author, "Let's Get Free: A Hip-Hop Theory of Justice"): Great to be here, Michel.

MARTIN: So, let's try to clarify this as much as we can. Do the police still have to notify a person being questioned that he or she has the right to remain silent?

Prof. BUTLER: Oh yeah, those famous Miranda warnings that we know from TV shows. Those are still the law of the land. Police have to advise suspects of their constitutional rights. That's not changed.

MARTIN: So what has changed?

Prof. BUTLER: So, it used to be that if you didn't say anything that meant that the police couldn't continue to talk to you. That meant that you were asserting your constitutional rights. What's changed with the case yesterday is now if you don't say anything that means you're giving up the rights. So it's kind of ironic, but you have to speak up in order to remain silent.

MARTIN: So in the past it was presumed that you're non-responsiveness was itself an assertion of your rights. Now you have to actively say stop.

Prof. BUTLER: You have to say, I don't want to talk to the police. I want to talk to a lawyer. And if you read the original Miranda case, it's pretty clear that the court said the problem is that when people are being questioned by police in some small interrogation room, they're scared to death. And so the burden of whether they're giving up their rights really falls on the police. And what the court did yesterday was shift the burden and say it's up to the suspect to say loud and clear, he's standing on his constitutional rights.

MARTIN: Now, this decision this was decided on a narrow 5 to 4 vote, something we've become accustomed to with this court, which is strongly ideologically divided. Sonia Sotomayor, the newest justice wrote a strong dissent to this. What was her argument about why this is not appropriate?

Prof. BUTLER: Well, she says it's counterintuitive to make people speak loud and clear in order to remain silent. And she said this doesn't go with what the Miranda case says. It actually turns the decision upside down. A really interesting thing, Michel, is that she's a former prosecutor. So a lot of people thought that...

MARTIN: As were you.

Prof. BUTLER: ...even though she might be progressive on some other issues, no one knew how she'd be on criminal justice issues. And like me, you know, sometimes when you're really deep into it, you get a sense of what it's really like. And so we're thinking, like, she's pretty liberal on these criminal justice issues.

MARTIN: And what was the argument that the majority made?

Prof. BUTLER: Well, what the majority say is it's a really interesting fact pattern. The guy got his constitutional rights as Miranda warnings and he didn't say anything. And the police do this monologue for almost three hours where they're just talking to him and he's not saying anything.

And finally they say, do you believe in God? He says yes. And then they say, well, do you pray to God to forgive you for shooting this guy? And he said yes. And that's what was admitted into evidence. And the court said, well, you know, he knew he had these rights. And if he really wanted not to talk, he should have not answered that question.

MARTIN: The case concerned Van Chester Thompkins, a Michigan man who was accused of shooting another man to death in 2000 outside a mall, and he was arrested a year later. And as I understand it, this question came almost three hours into the questioning that he a single of a single affirmative response was deemed to have waived his right to remain silent. But what about that? I mean, what about that? If you're talking you're talking, right?

Prof. BUTLER: But, look, police are really good at getting people to talk. I mean, it's kind of extraordinary that they would just talk basically to themselves for three hours and you'd think, well, what are they doing? But it turned out it worked. They got exactly what they were looking for. And then this is what the court was concerned about in Miranda. We just aren't sure what's going on.

Again, picture the TV set and you're in this little room. It's the suspect with these two armed men and they're yelling out. And the court was trying to regulate what happens in that closed space, and that's the purpose of the Miranda warnings. And now there's a little bit less oversight of the police.

MARTIN: Well, how is that the case though, since they still are required to issue the Miranda warning? How is there less oversight of that if a person says, I assert my right not to speak to you?

Prof. BUTLER: Because it's hard to do that. Again, if you're some guy the police suspects you did the crime, maybe you did it, maybe you didn't. But under the constitution is doesn't matter. You have a privilege, famous Fifth Amendment privilege against self-incrimination, not to put yourself in jail.

MARTIN: But what was the regulation before that if police were questioning this man and he was non-responsive after three hours, what regulation existed there before? I mean...

Prof. BUTLER: Well, before, if he didn't affirmatively say he wanted to talk, then they should have let him alone. They should've left him alone.

MARTIN: I see. And then that information would not have been admissible to court.

Final question to you very briefly, if we can. Elena Kagan, who is President Obama's latest nominee for the Supreme Court - was solicitor general - argued in defense of the position that the court upheld. She argued, in a sense, the position that the majority took. Do you think that this is going to, clearly this is the part of the public record. Do you think this will affect the discussion at her nomination hearing later this month?

Prof. BUTLER: It'll come up about my former classmate at Harvard Law School, Elena Kagan, but she's representing a client. And, you know, when you represent a client, you take their position. She was representing United States. The Justice Department, for better or worse, is traditionally pretty conservative of these issues, even in Democratic administrations. So she was doing what Eric Holder and President Obama told her to do.

MARTIN: Paul Butler is a former federal prosecutor, author of "Let's Get Free: A Hip-Hop Theory of Justice." It's just available in paperback now. He's also a law professor at George Washington University and he was kind enough to join us in our studios in Washington. Professor Butler, thank you.

Prof. BUTLER: Always a pleasure.

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