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The U.S. Supreme Court today gave police greater latitude in questioning suspects, cutting back yet again on its famous Miranda decision. By a five-to-four 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. What's more, the court said, even a one- or two-word answer given after three hours of silence can be used against him.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: In the decade since Miranda, the 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 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 court's 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 understood, and then they questioned him.

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.

A federal appeals court overturned the conviction because it said that evidence was obtained in violation of the defendant's right to remain silent. But today, 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 court majority, Justice Anthony Kennedy conceded that the court's 1966 Miranda decision did have more-strict rules on what constitutes a waiver of a suspect's rights. But he said the main purpose of Miranda was to advise a suspect of his rights and make sure he understands them, and that was done in the Thompkins case.

Thompkins uncoerced answer to a key question after three hours of silence, he said, 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 DA'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.

The court's decision 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.

Professor WILLIAM STUNTZ (Harvard Law School): Police don't need rubber hoses to get people to answer questions. Persistent questioning alone will get them to answer questions, and this case says those answers amount to a waiver. So Miranda just doesn't mean much.

TOTENBERG: Stanford law professor Pam Karlan, on the liberal side of the spectrum, wonders, what is the cut off?

Professor PAM CARLIN (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: Stanford's 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 and waived his rights.

Professor ROBERT WEISBERG (Stanford Law School): The burden is now the other way, that 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, even when the record here suggests that this guy might have been completely bonkers and unaware of what was going on.

TOTENBERG: Again, Harvard's professor Stuntz.

Prof. STUNTZ: 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: Police officers, though, had a different reaction to the ruling. Former Newark Police Captain Jon Shane, now a professor at John Jay College of Criminal Justice, saw the decision as helpful.

Professor JON SHANE (Professor, John Jay College of Criminal Law; Former Police Captain, Newark, New Jersey): They're 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 because the courts have traditionally been very difficult to interpret.

TOTENBERG: And today's ruling, he says, will make life on the ground simpler and easier for the police.

Nina Totenberg, NPR News, Washington.

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