Supreme Court Imposes Restrictions on Exercising Miranda Rights

The Supreme Court today ruled that suspects must affirmatively state their intent to remain silent and request a lawyer when being questioned by police in order for statements they make to be suppressed. The court was divided 5 to 4. Justice Sotomayor, in a dissent, wrote:

"Criminal suspects must now unambiguously invoke their right to remain silent - which counterintuitively, requires them to speak," she said. "At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded."

The case is The case is Berghuis v. Thompkins, 08-1470 and the opinion is here.

< Al and Tipper Gore Announce Separation | DOJ Opens Criminal Probe Into Oil Spill >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Well, clearly, (5.00 / 1) (#21)
    by Zorba on Tue Jun 01, 2010 at 07:03:46 PM EST
    if you are questioned by the police as a potential suspect, you say "I want my attorney (or- to have an attorney assigned to me)."  And "I invoke my right to silence."  Memorize these.  Personally, I would be tempted to stick my fingers in my ears and say "Lalala, I can't hear you."  I suspect that would not go over well with the police, but then, I've always been rather fond of both civil disobedience and "street theater."  {Sigh.}  While this does not seem to be a huge deal on the face of it, and Thompkins does not seem to have been the sharpest knife in the drawer (and I would argue that the "duller knives" are the ones most in need of protection), this is just another whittling away of our civil liberties.  Perhaps a small nibble in the larger context, but definitely a nibble, nevertheless.  

    Civil liberties, apparently (5.00 / 2) (#22)
    by gyrfalcon on Tue Jun 01, 2010 at 07:39:03 PM EST
    are to be granted only to those educated enough, informed enough, articulate enough, assertive enough and mentally competent enough to invoke them properly and promptly in language that leaves no possible doubt in the cops' minds.

    Reminds me of that series of commercials for something that shows an adult cheating one little kid after another, and the voiceover says, "Even a kid knows when something's unfair."

    So now civil liberties fall under "buyer beware," apparently.


    Apparently so, gyrfalcon (none / 0) (#23)
    by Zorba on Tue Jun 01, 2010 at 07:47:57 PM EST
    Apparently so.  That's not what I (or you) believe our country stands for, but I guess we're in the minority.  =-(  

    wait ... (2.00 / 1) (#1)
    by nyrias on Tue Jun 01, 2010 at 01:28:18 PM EST
    it is required to notify the suspects of their rights before questioning.

    Why it is too much to require them to state clearly if they want to exercise such right?

    Plus, who does not know to ask for a lawyer if he has seen an episode of Law & Order (or substitute with your fav police show)?

    someone (5.00 / 1) (#2)
    by CST on Tue Jun 01, 2010 at 01:30:19 PM EST
    who doesn't watch police shows on tv.

    Although you have already clearly stated in previous threads that you believe only "normal" people have the right to be protected by the law.


    you mean ... (none / 0) (#3)
    by nyrias on Tue Jun 01, 2010 at 01:41:09 PM EST
    someone who is informed they have such right, and "forgets" to exercise it, should be able to take back what they say?

    I thought the right is to remain silence and have access to council, not the right to regret what they have said.

    Everyone does have the right to remain silent.

    Apparently the supreme court agreed with me.


    You need to understand (5.00 / 3) (#10)
    by MKS on Tue Jun 01, 2010 at 02:27:08 PM EST
    the dynamic.   You are in police custody.  You have been arrested--which scares the sh*t out of most people....You have been handcuffed.  People with guns are saying all kinds of things to you (and the police are allowed to lie.)  Whatever you saw on teevee matters not.....

    Most people talk to the cops--big mistake that it is....I once asked a 20 yr FBI agent about people not talking to him and he said he never had that problem, so overwhelming was the desire to comply.

    It all goes back to the Milgrim experiment.  People do what they are told.  Especially if your liberty has been taken from you.....It takes a special kind of courage and independence to not talk to the cops....

    So, when someone is arrested it is perfectly appropriate to tell them their rights (and that those rights do exist in the real world and not just on tee vee) and to make it easy, not hard, to invoke your Fifth Amendment rights....

    The police intimidate and scare most people who are under arrest.....In order to give people permission, and the ability, to exercise their Fifth Amendment rights, some acknowledgement of that reality of intimidation is necessary.


    Well (none / 0) (#4)
    by squeaky on Tue Jun 01, 2010 at 01:48:11 PM EST
    I do understand, narias that english may not be your first language, but for most naitve speakers, who graduated HS, and for many who got through third grade, remain silent, means that you may continue to stay silent. Speaking after being told that you may remain silent is not remaining silent, no matter what comes out of your mouth.

    LOL ... (1.00 / 1) (#12)
    by nyrias on Tue Jun 01, 2010 at 02:40:24 PM EST
    i thought people like you would have some common sense instead of splitting hair like this.

    So the person answer a question .. "Yes, i would like a lawyer" and then clam up.

    What is the problem with that? The right to remain "silent" is not 1 or 0. It is not like either i have to shut up or i have to talk for hours.

    It means I can clam up at ANY POINT in time. I thought you know that.


    People Like Me? (5.00 / 2) (#15)
    by squeaky on Tue Jun 01, 2010 at 02:55:35 PM EST
    Well I am happy to be compared to Justice Sotomayor:

    "Criminal suspects must now unambiguously invoke their right to remain silent - which counterintuitively, requires them to speak," she said.

    Ever heard the word counterintuitive?


    obvious ... (2.00 / 1) (#16)
    by nyrias on Tue Jun 01, 2010 at 04:11:18 PM EST
    justice sotomayor has little intuition in this case.

    What is the big deal of making an answer to one question .. whether you invoke your right to remain silent .. an exception?

    There are no exceptions in the law?


    Doesn't Miranda end with a (none / 0) (#5)
    by coast on Tue Jun 01, 2010 at 01:57:14 PM EST
    question "Do you understand these rights as they have been read to you?"?  So do suspects who wish to remain silent not answer that question?

    Silence Not A Waiver Until Now (5.00 / 2) (#6)
    by squeaky on Tue Jun 01, 2010 at 02:00:54 PM EST
    The courts have since ruled that the warning must be "meaningful", so it is usually required that the suspect be asked if he understands his rights. Sometimes, firm answers of "yes" are required. Some departments and jurisdictions require that an officer ask "do you understand?" after every sentence in the warning. An arrestee's silence is not a waiver, but on June 1 2010, the Supreme Court ruled 5-4 that police are allowed to interrogate suspects who have not unambiguously invoked or waived their rights, and any statement given during questioning prior to invocation or waiving is admissible as evidence.

    Thanks (5.00 / 1) (#7)
    by coast on Tue Jun 01, 2010 at 02:04:39 PM EST
    I would have thought a firm answer was required in all cases.  Otherwise how do you know whether or not the suspects understands his/her rights.  Makes Miranda meaningless otherwise, IMO.

    Yes (none / 0) (#8)
    by squeaky on Tue Jun 01, 2010 at 02:11:03 PM EST
    Pretty nasty, imo. Up till now police would chatter away in front of one who asserted his or her miranda rights, in order to provoke some speech. Topic could be baseball, politics or any subject that the police thought would get a rise out of the suspect.

    Once the suspect uttered a word their miranda rights were waived until they affirmed them again.

    This, of course, is just stacking the deck in favor of the government, are we surprised?


    Welcome to the police state (none / 0) (#13)
    by Lora on Tue Jun 01, 2010 at 02:47:24 PM EST
    It's closing in.

    Unless we stop it.

    If we can.


    is this another .. (1.00 / 0) (#17)
    by nyrias on Tue Jun 01, 2010 at 04:14:18 PM EST
    slippery slope argument?

    If requiring people to state whether they want to invoke a certain right makes us into a police state, i don't think that phrase have much meaning.

    Does requiring citizens to actually mark their preference on a voting ballot make us a police state too? Or shall we just GUESS who they want to vote?


    What is clear to one may not be clear to (5.00 / 1) (#9)
    by ruffian on Tue Jun 01, 2010 at 02:17:12 PM EST
    another. We are not always talking about the most clearly articulate people being questioned, and police can play dumb when they want also.

    This decision seems to me to say that questions of ambiguity get resolved in favor of the police, not the person in custody.

    Now we can decide if our laws need to be changed to flip that.


    Well if Everyone's Seen it on TV... (5.00 / 3) (#14)
    by ScottW714 on Tue Jun 01, 2010 at 02:50:56 PM EST
    ...Why bother with the cumbersome Miranda warning anyways ?

    I've seen 24 on TV, that doesn't mean I think torture is a good way to treat people.

    I've also seen Jersey Shore and I don't think I have ever called a woman that I brought home a 'Zoo Creature'.

    TV might be where some people get their 'facts', but in the real world, I prefer to have my rights told to me, just in case my TV is on the fritz.

    I thought most jurisdictions required a signature stating the person in custody is aware of their rights.  Is this not true ?


    People aren't computers (none / 0) (#36)
    by mmc9431 on Wed Jun 02, 2010 at 09:49:13 AM EST
    You (and evidently the Supreme Court) assume that everyone thinks clearly in a crisis. I for one don't think clearly when I'm rattled. Afterwards I think of the logical thing to do. But at that moment my brain is racing in a thousand directions. The obvious isn't always obvious at the time.

    Makes it the same (none / 0) (#11)
    by jbindc on Tue Jun 01, 2010 at 02:39:11 PM EST
    As the right to counsel.

    From the holding:

    A suspect's Miranda right to counsel must be invoked "unambiguously." Davis v. United States, 512 U. S. 452,459. If the accused makes an "ambiguous or equivocal" statement or no statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused's intent, id., at 461-462. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain si-lent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory self-incrimination by requiring aninterrogation to cease when either right is invoked. The unambigu-ous invocation requirement results in an objective inquiry that "avoid[s] difficulties of proof and . . . provide[s] guidance to officers" on how to proceed in the face of ambiguity. Davis, supra, at 458-459. Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the question-ing. He did neither. Pp. 8-10.

    But this requirement (5.00 / 1) (#19)
    by BackFromOhio on Tue Jun 01, 2010 at 06:28:15 PM EST
    followed mandatory reading of Miranda which included informing person in custody of the right to counsel

    Someone will make a fortune on (5.00 / 0) (#25)
    by Anne on Tue Jun 01, 2010 at 08:32:35 PM EST
    laminated wallet-sized cards that say: "I am invoking my right to remain silent, and my right to an attorney."

    Which may prove useless if one's wallet has been confiscated.


    Do they still have to give the (none / 0) (#18)
    by robotalk on Tue Jun 01, 2010 at 06:12:44 PM EST
    Miranda warning?  And once it is invoked, can it be waived orally?  Just curious, because it seems it will lead to police badgering.

    Don't worry (none / 0) (#27)
    by Rojas on Tue Jun 01, 2010 at 09:00:51 PM EST
    We can switch the constitution off and on just like a light switch. And we'll only switch it off for those who aren't deserving.

    OTOH (none / 0) (#35)
    by Abdul Abulbul Amir on Wed Jun 02, 2010 at 09:08:40 AM EST

    What are the police to after reading the Miranda warning?  Must they stop questioning after the first second?  After the first millisecond? After the first hour?  The first workday?  Who keeps time?  What accuracy is required in the timing device?  

    How is one to know at what point a suspect has decided to remain silent as opposed to just formulating that decision?


    IMO, as Justice Sotomayor pointed out (none / 0) (#20)
    by oculus on Tue Jun 01, 2010 at 06:48:00 PM EST
    in her dissent, given the restrictions imposed on habeaus, majority did not to reach the issue at all.  

    Jeralyn: did Kagan have a choice? (none / 0) (#28)
    by Andy08 on Tue Jun 01, 2010 at 09:27:51 PM EST
    Or was she `forced' as AG to side with Michigan in its appeal?

    Van Chester Thompkins, suspected in the 2000 shooting death of Samuel Morris outside a mall in Southfield, Mich., said little during a nearly three-hour interrogation, at the start of which he was read Miranda warnings.

    Two hours and 45 minutes later, an officer asked, "Do you believe in God?" Thompkins said yes. The officer then asked, "Do you pray to God to forgive you for shooting that boy down?" Thompkins said "Yes."

    Thompkins was convicted of murder and sentenced to life in prison without parole.

    On appeal, he said he invoked his right to remain silent by refusing to answer questions for a long period of time and that his statements should not have been used at trial.

    A U.S. appeals court agreed, rejecting Michigan officials' claim that Thompkins had waived his rights. U.S. Solicitor General Elena Kagan, representing the Obama administration and now a nominee for the court, sided with Michigan in its appeal. She said a suspect must clearly assert his right to silence.

    The Supreme Court majority agreed.

    From USAToday

    justice versus the law (none / 0) (#29)
    by diogenes on Tue Jun 01, 2010 at 11:01:35 PM EST
    Does anyone commenting here think that Thompkins was in fact innocent?
    What proportion of people who are innocent of a given crime confess falsely when interrogated and because of those confessions are actually wrongfully convicted?
    I would speculate that one in one thousand is a high number; the real number is likely much lower.

    Well it sure seems quite a few folks (none / 0) (#30)
    by Rojas on Tue Jun 01, 2010 at 11:40:16 PM EST
    plead guilty to crimes they were later exonerated of by DNA.

    not the question (none / 0) (#38)
    by diogenes on Wed Jun 02, 2010 at 07:47:50 PM EST
    Not whether people plea bargain in court when they are represented by lawyers, but whether people are convicted of crimes which they falsely confess to during US interrogations.

    IMO there was sufficient evidence (none / 0) (#33)
    by oculus on Wed Jun 02, 2010 at 01:44:50 AM EST
    detailed in the majority opinion for a jury to have found Mr. Tompkins guilty.

    There has always (none / 0) (#31)
    by Patrick on Wed Jun 02, 2010 at 01:31:13 AM EST
    been an implied waiver of rights.   The police have never had to ask if you want to answer questions, just if you understood your rights.   Once you say you understood them, they can go right into questioning.  It's been that way for many years.  It's also been a rule that the request for a lawyer must be unambiguous.   Ms. Sotomeyer's comment is counterintuitive.  

    The dissenting opinion is a tad on the (none / 0) (#34)
    by oculus on Wed Jun 02, 2010 at 01:45:50 AM EST
    rambling side.  

    Patrick, good to see you around! (none / 0) (#37)
    by sarcastic unnamed one on Wed Jun 02, 2010 at 12:47:21 PM EST
    TL's not so much "the politics of crime" any more, but it's good to see your comments when there is a related thread.

    Peter G: what say you? (none / 0) (#32)
    by oculus on Wed Jun 02, 2010 at 01:43:48 AM EST