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Jun. 1 2010 - 2:48 pm | 395 views | 2 recommendations | 15 comments

SCOTUS strikes again! Limits Miranda rights

In another 5-4 decision, the United States Supreme Court has further limited Constitutionally granted rights by ruling that Miranda warnings must result in a suspect affirmatively informing police that they wish to remain silent, have an attorney present, etc.,  in order for the 5th Amendment protections against self-incrimination to activate.

The ruling comes in a case where a suspected murderer, who received his Miranda warnings, stayed silent through questioning without ever affirmatively stating that he did not wish to speak. After a couple of hours of questioning, where the suspect either said nothing or offered very vague responses such as “yes”, “no”, and “I don’t know”, the police asked the man if he had prayed for forgiveness for “shooting that boy down.” The suspect responded, “Yes.”

That statement was ruled admissible in the trial as an admission of guilt and the man was convicted of murder.

The defendant challenged the conviction, arguing that he had invoked his Miranda right to remain silent by actually remaining silent. Therefore, anything he said should be inadmissible as the police should have stopped asking him questions. The appellate court agreed with the defendant and tossed out the conviction on the basis that his rights had been violated.

Today, the Supremes disagreed.

Writing for the majority, Justice Kennedy said,

Thompkins did not say that he wanted to remain silent or that he did not want to talk to police. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent.
Via Huffington Post

Justice Sotomayor wrote the dissenting opinion –

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.”
Via Huffington Post

This new ruling puts the onus on the accused to understand that they have an obligation to clearly verbalize their desire not to speak when accused or be presumed to have waived their right not to incriminate themselves.

For those of who find this to be a step forward in reigning in what many believe to be overprotection of the criminal class in the United States, you might want to give some additional thought to this. Consider what could happen to those who might very well be innocent of a crime but do not understand –or are not capable of understanding – this requirement  at the precise moment when they are terrified by their circumstances.

Essentially, the Supreme Court has given a legal leg up to the professional criminal who knows the rules of the game and severely damaged the rights of those who are most in need of our Constitutional protections.

So, here’s the next question – will police departments across the country add a sentence to their Miranda readings that inform the suspect that they must affirmatively answer or waive their rights or are suspects on their own?


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  1. collapse expand

    Isn’t this akin to not knowing you had to opt out of certain purposely obscured internet site data farming measures prior to using said site?

    Not being a student of law, will persons who don’t have the capability to understand their Miranda rights as told to them by an arresting officer have protection?

    How does this apply to foreigners who have no idea what Miranda rights are much less how they apply to them.

    School me Rick.

    • collapse expand

      Mtbgtr – I may not be right on this, but I believe that the issue you raise goes to another question. If the police give such a suspect his/her rights and he/she indicates that she is happy to answer questions – even if the suspect lacked the mental capability to understand, the rights may be satisfied. However, you would then get to the question of whether that individual is competent to stand trial on the charges if they are incapable of understanding the charges brought against them – that is not permitted.
      If I get some time, I’ll do some research and see if there is a more correct answer. Because I don’t do criminal law, I’m really not as up to speed as someone who does.

      In response to another comment. See in context »
      • collapse expand

        Waiver must be knowing, voluntary, and intelligent. Who knows what intelligent means. (It is never intelligent to waive) Knowing has some meaning. I am not sure how it interplays with matters such as the mental capability of the accused. However, there is precedent that Miranda warnings are ineffective if the accused does not understand them due to a language barrier. So, if for instance, an officer Mirandized an accused in English, despite evidence that the accused spoke Spanish and not English, the warning would only be effective if given in Spanish.

        In response to another comment. See in context »
  2. collapse expand

    Another way the lawyers (and judges that enable them) are twisting our language into a legalese clusterfuck.

    Actually – literally – remaining silent is not the same as invoking your right to remain silent.

    They hate us because of our FREEDOM®.

    • collapse expand

      silly comment -the rulings of the Supreme Court has nothing to do with lawyers twisting language. What’s more, lawyers have very little to say on matters such as constitutional rights and their application to criminal law.

      In response to another comment. See in context »
      • collapse expand

        Language and meaning are very intertwined, since most of us think (logically at least) in language, and most meaning is demonstrated in language (verbally). The SCOTUS are all lawyers. I agree it is a weak point, but still….(no offense intended personally, Rick) lawyers are hired speech twisters, thought twisters and mind benders. Good ones are thus, and bad ones. It is hard to deny.
        I do not however believe lawyers can be held as responsible for the decisions of SCOTUS (much else but not that). SCOTUS shoots its own foot.

        In response to another comment. See in context »
  3. collapse expand

    I don’t understand the right’s hatred of Miranda. If anything, it is an incredibly minimal protection since it is voluntarily waived something like 80-85% of the time. Yet, since the decision came down, you have decades of precedent minimalizing even the tiny protection that Miranda provides. The long line of cases dealing with exigency, what exactly constitutes custodial interrogation, etc. have whittled away at the power Miranda holds.

    What I find amazing is the Tea parties seeming hatred of Miranda. The hatred spewed from the right “I bet Obama Mirandized that terrorist” is somewhat comical comming from a group that seeks to espouse their love of the constitution.

    While I understand that there has been some precedent to state that since Miranda allowed for states to adopt equally effective means, that Miranda is therefore not a constitutional case, I think that is largely hogwash.

    I forget the case name, but to me, it signaled the death nail of Miranda. A guy was Mirandized, invoked the protections, and then asked the police “what will happen to me now?” The court held that this simple question constituted a reinitiation on the part of the suspect, and therefore opened him up to questioning. I have never been arrested, but I imagine that if I ever find myself handcuffed in the custody of strangers, what are you going to do with me would be a pretty immediate question, even if an unwise one. It seems that the whole idea of Miranda, giving the suspect the knowledge that he has the ability to stop questioning by allowing him to witness the effectiveness of his invocation, is no longer important.

    While there is some room for argument over whether Miranda is a constitutional case, what is not open for debate is the nature of the right against self incrimination. Clearly, this right is only applicable to the guilty. You cannot incriminate yourself if you are innocent, so the founding fathers specifically included the defense for the aid of the guilty. Yet people who profess their love for the constitution are somehow horrified when they come to understand that it is applied to the guilty.

    As for your question, of course suspects are on their own. Police are already free to interpret reinitiation or waiver, as that is judged on the basis of the officer’s belief, not on the basis of the accused belief. In this context, I see no reason to beleive that officers will take the initiative to add a statement to Miranda unless the court forces them to. They will say their piece, and then interpret waiver.

    For a country that incarcerates more people than any other nation on earth, society sure has some wierd idea that criminals have too many rights. It seems that even the minimal rights they are afforded do not stop the police from throwing people in jail, yet we are still on a path to destroying even the most minimalist of our rights. It is sad.

    • collapse expand

      I think it goes to the belief that criminals are treated too well under the law. However, what these folks never think about is the reason we take this approach. Fundamental to our law is that it is better for 10 guilty men to go free rather than one innocent man going to jail. People often scoff at that because they don’t believe they could ever find themselves in a situation where they are incorrectly accused. And yet, it happens every single day in this country – right up to the point where we see people on death row who are ultimately exonerated of capital crimes when DNA tests are conducted.

      In response to another comment. See in context »
      • collapse expand

        I don’t agree that the legal system is all about letting nine men go free rather than convicting one innocent man. The opposite seems true to me, that everything in modern american “justice” is about catching and convicting anyone, as long as the prosecutors win. They are famous cases when they occur, but very few rich people go to jail. The game here is all about winning, prosecutors pile up statistics (not convictions) in order to run for office or private law firm placements. It’s money and fame, not honor, duty or truth. Too many people are in prison, too many innocents have been rescued from death row. This system does not work for everyone.

        In response to another comment. See in context »
  4. collapse expand

    Do we now have to affirm each of our rights before they go into effect? Will we soon have to preface each and every controversial statement we make with “I state the following, affirming my 1st Amendment right to freedom of speech,…”? If we don’t, can we then be punished for what we say or write? Will the state now be allowed to take my land because at no time since I owned it did I affirm my 5th Amendment right to due process for any eminent domain seizure of that property? Have we no rights until we affirm them?

    I know, this is a stretch, but it seems like the SCOTUS could have ruled that while a suspect has the right to remain silent, in this case the suspect didn’t remain silent. He answered some of the questions (even if they were vague). Case closed. Why did they have to add the requirement that a suspect must affirm his right before it can be legally given?

    • collapse expand

      I could not agree with you more. There is still an issue where the police should probably have stopped questioning him when he did not assent to their doing so. But I completely agree with you. The argument could well have been that if he kept answering questions after being advised on his rights, then he obviously intended to answer. That would have been a more sensible ruling.

      In response to another comment. See in context »
  5. collapse expand

    First they give corporations the same legal rights as flesh-and-blood human beings, and then they follow that up with saying that people accused of a crime must ’say’ they refuse to speak. It would appear the ‘dumbing down of the populace’ extends all the way to the Supreme Court.

  6. collapse expand

    This midpoint of this shifting tug-of-war between the rights of the innocent(-until-proven-guilty) and the duty of the prosecutors has been jumping back and forth in the political winds for centuries (at least). Now it seems the political winds (at least between the old farts of the SCOTUS) are taking it backwards by centuries. I wish, how I wish, that Americans had a cohesive, and stable cultural anchor in true justice, as in a set of procedures that never waivers, inviolable rights of the individual vs the state, judges that are independent of pressure and police who are well paid (and very qualified, as in not-afflicted-with-personality disorders). We are still apparently a cowboy justice culture, where we elect someone from Texas and change the meaning of “justice”, as if it were no more than the shape of a tie, or a new haircut come into fashion. We seem no more, if ever we did, to have a single culture — just politic factions with wildly different dictionaries.

    It is not true that the right to remain silent benefits the guilty more than the innocent, for logical reasons. Rights are granted to everyone in modern society, unless we step back further than the wild West and again accept that skin color, or gender, or orientation, or religion, should determine access to protection of the law. I believe the wording of the legal text is that ‘I invoke my right to silence for fear that anything I say may be construed as evidence against me’ (or similar). Overzealous prosecutors might turn anything said by the accused into an admission of guilt; after all the prosecutor can take it out of context, put it in a new context and present it to the jury in creative ways, like a jeweler setting a zirconium into a diamond-worthy ring. Everyone has the right not to be tricked, forced or tortured into self incrimination.

    • collapse expand

      Hiya Renzo — it’s been awhile since I’ve seen you around here. Hope everything’s going ok.
      Your last sentence sums it all up, but being tricked in this day and age seems par for the course — hope I’m just becoming more jaded in my old age (as opposed to seeing things the way they truly are).

      In response to another comment. See in context »
      • collapse expand

        It is hard to know when you are seeing things as they are. It is almost a mystical undertaking to ’see things the way they are’ since so many forces want to prevent it.

        Even the plea bargaining system in this country, whereby 95% of federal convictions are accomplished, is considered by legal experts in other “civilized” countries to be coercive, if not torture. In the UK, I understand, plea bargains are negotiated between defendants’ barristers and the Queen’s Counselors, with the govt side disclosing all evidence under supervision of the court, and the plan for conviction. Here nothing is disclosed, mental illness is not allowed to be considered, and only the number of years the prosecutor will ask for is discussed in plea bargain “discussions”.

        Furthermore, when the defendant goes to trial, he/she is accused of multiple congruent crimes, such as attempted murder, conspiracy to committ murder, mail fraud in the conspiracy to commmitt murder, lying to federal officials about the mail fraud investigation, lying to federal officials in investigation, resisting arrest, conpsiracy to resist arrest…. (yes I take liberties with the made up charges). Like Martha Stewart who was “found guilty” of lying to federal officials, they heap the charges on the defendant in order to make sure they win at something. It is not anymore about what really happened, but rather about who wins. Prosecutors no longer consider whether someone really “did it” but think only about whether they can win the case. It is bluster and bullying, not justice. But those are the tools of fascism.

        In response to another comment. See in context »
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    I am an attorney in Southern California, and a frequent writer, speaker and consultant on health care policy and politics. To that end, I am active member of the Association of Health Care Journalists. Based in beautiful Santa Monica, California, I'm very pleased to have the opportunity to be a contributing editor to True/Slant. I've recently finished a book designed to make the health care debate understandable to the average reader, and expect it to be out in the next five months or earlier. In my 'spare time', I continue to write for television and, occasionally, for comic books.

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