Apparently Actions Do Not Speak Louder Than Words

Per the AP account of the latest Supreme Court decision, a suspect can not invoke his right to remain silent by doing something so humdrum as remaining silent.  No, the suspect has to speak up!

WASHINGTON (AP) -- The Supreme Court ruled Tuesday that suspects must explicitly tell police they want to be silent to invoke Miranda protections during criminal interrogations, a decision one dissenting justice said turns defendants' rights ''upside down.''

A right to remain silent and a right to a lawyer are the first of the Miranda rights warnings, which police recite to suspects during arrests and interrogations. But the justices said in a 5-4 decision that suspects must tell police they are going to remain silent to stop an interrogation, just as they must tell police that they want a lawyer.

I assume, or at least hope, that it sounds a bit less wacky in the opinion.  The story does include this:

Van Chester Thompkins was arrested for murder in 2001 and interrogated by police for three hours. At the beginning, Thompkins was read his Miranda rights and said he understood.

The officers in the room said Thompkins said little during the interrogation, occasionally answering ''yes,'' ''no,'' ''I don't know,'' nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for ''shooting that boy down,'' Thompkins said, ''Yes.''

He was convicted, but on appeal he wanted that statement thrown out because he said he invoked his Miranda rights by being uncommunicative with the interrogating officers.

If the police felt the suspect was not being utterly unresponsive, then one can see why they would continue the interrogation.  Near-silence is not silence.

And I guess there could be a real problem with implementing a rule that equated silence with an assertion of the right to end the interrogation.  Would ten seconds of sullen silence be enough?  One minute?  Ten minutes?  When does the clock start, and who plays scorekeeper?

The SCOTUSBlog has lots.

Comments

[RK]

Seems to make sense. If someone is being interrogated they can force it to be ended by invoking their right to silence. However if they don't invoke it the law enforcement still can't 'force' someone to talk which is the original intent behind this Miranda right.

Most accused with an ounce of sense will invoke their right to an attorney before bothering to try to invoke their right to silence. Once either is explicitely stated the law enforcement officers need to cease their questioning.

[daddy]

This is outrageous, and totally unfair to mute's and the deaf. Call the Lawyers for American's with Disabilities, especially since June 1st is National Helen Keller Day.

[Ignatz]

--I assume, or at least hope, that it sounds a bit less wacky in the opinion.--

Wacky? Seems to me answering a cop's question is a fairly explicit waiver of the right to remain silent.
One can either invoke the right by saying one is or, failing that, by remaining silent.
Even feeble minded murderers should be able to figure that one out, although it appears the wise Latina cannot.

[Jim Rhoads a/k/a vjnjagvet]

Lesson of the case:

You can't take back what you say to a law enforcement officer if you say it after you are warned of your right not to say it.

How the contrary argument got four votes is beyond me.

[narciso]

"What part of the right to remain silent" did he miss, Did they appoint a Red Queen to the Court, rhetorical question

[JorgXMcKie]

After hitting the link, it makes more sense. The suspect never stopped talking after being read his write. Is mere verbosity the measure we want to use to determine intent.

After looking at [briefly] at the decision, it seems more to me that the minority is merely decidedly against actual "bright lines" than anything else. Evidently, for them, the more ambiguity the better.

[Ranger]

"Donky, you have the right to remain silent. What you lack is the capacity."

[JorgXMcKie]

Hoo, boy, Clarice. It appears to be catching. That should be, of course, after being read his rights. I'm not usually that fat-headed.

[Ranger]

Evidently, for them, the more ambiguity the better.

Posted by: JorgXMcKie | June 01, 2010 at 02:44 PM

Of course, because the greater the ambiguity, the greater the chances for the Court to set policy through judicial review.

[Danube of Thought]

Doesn't trouble me in the slightest.

[boris]

Unbold? (IE)

[matt]

daddy, can you shoot me an e mail. Tried to call and it didn't sound like you.

[Jim Rhoads a/k/a vjnjagvet]

OT:

Has anyone mentioned that Al and Tipper, the first couple of green, have announced their separation after 40 years of marriage?

I guess that unexpected soul kiss p***ed her off at some level.

[Cecil Turner]

I've always thought the "waiver" required by many police departments was rather strange. If the subject doesn't want to answer, he doesn't have to. If he makes it clear he isn't going to answer questions, they'll stop asking. If he answers, the information can be used. The requirement for a declaration that he'll talk prior to talking seems a bit much.

The minority opinion on this one seems to be: if the defendant remains uncommunicative, the police must stop asking questions. I'm not a legal expert, but it's hard to feature. I know that doesn't work with my wife.

More interesting is the vehement disagreement by Sotomayor and the fact that the opinion is written by Kennedy. Might be a bit early to start drawing conclusions about personality dynamics, but she doesn't appear to be having much luck building a consensus. And the possibility of a strident lefty pushing away potential allies seems like a plausible read so far.

[daddy]

Matt,

Do you have my work e-mail addy? That's the only 1 that seems to work for me lately. I can't get my regular old 1 to open so I can't access your address right now. Sorry its taking so long.

Jane or Hit, Help.

If you have Matt's addy could you send it to my work address?

[MayBee]

The minority opinion on this one seems to be: if the defendant remains uncommunicative, the police must stop asking questions. I'm not a legal expert, but it's hard to feature. I know that doesn't work with my wife.

Ha ha ha ha ha ha ha!

[Jane]

Matt,

If you send me an email to [email protected], I will forward it.

Cecil, did anyone ever think Sotomayer would be able to build consensus?

[Jim Rhoads a/k/a vjnjagvet]

As anyone who watches police shows, from Dragnet to the present, part of the Miranda warning informs the arrestee:

Anything you say [to us (implied)] can and will be used against you.

I wonder what part of that the minority doesn't agree with?

[Sue]

Mark Kirk has been outed as gay. http://blog.blogactive.com/2010/06/truth-or-consequences.html>Source Will it hurt him in IL?

[Sue]

Mark Kirk has been outed as gay. http://blog.blogactive.com/2010/06/truth-or-consequences.html>Source Will it hurt him in IL?

[Rob Crawford]

How the contrary argument got four votes is beyond me.

They're leftists.

[matt]

nope.

[jimmyk]

Will it hurt him in IL?

Probably not as much as lying about his military record. Is this the best the Republicans could do?

Incidentally, from Sue's link:

Then Kirk became a hypocrite. Kirk voted against repealing Don't Ask Don't Tell, despite his being a closeted gay man in the military.

How does that make him a hypocrite? Quite the opposite, it seems to me.

[jean]

WOW just this past weekend Hillbuzz was talking about the outing of Mark Kirk

[Melinda Romanoff]

HillBuzz says they wrote about this in Dec. '09. No time right now, but I'll follow up there.

Mob thug, or lying hypocrite? Hmmmm, who to choose? Who to choose?

[centralcal]

Mel is correct. Hillbuzz has been beating the drum for a very long time that Kirk was vulnerable, for many reasons.

Makes you wonder, too - they have claimed for equally as long that both Rahm and Barry were known to frequent "boystown" establishments.

[Majority opinion will rule, here.]

Correction: The Wise Vehement Latina. Which two words don't belong together.
============

[What's your mirth place, honey?]

I just love it when people are wrong at the top of their lungs.
==================

[PaulV]

only democrats seem to care about sexaul orientation. The rest care about fiscal conservatism.

[Buford Gooch]

But Kirk isn't particularly fiscally conservative, either.

[Cecil Turner]

Cecil, did anyone ever think Sotomayer would be able to build consensus?

No, one of the raps on her was that she was likely to push others away (much as anduril tends to make me a stauncher supporter of Israel). I'm just having a little schaadenfreude watching her in action . . . and hoping it continues.

[Andrew_M_Garland]

Where did you get that wristwatch?
Is that a stolen IPhone? Prove it.
Please step out of your car sir. Do you mind if I take a quick look?

Never Talk to the Police

Prof. Duane explains in these videos why he is proud of the 5th Amendment, and will never, ever talk to the police without a lawyer. You shouldn't either. Don't take his word for it; he cites the advice of Nuremberg Trial Chief Prosecutor Robert Jackson, and the U.S. Supreme Court. Prof. Duane is animated and interesting. This lecture is an eye-opener.

[daddy]

Sarah Palin just responded to McGinniss and NBC news with a classic. ">http://www.facebook.com/note.php?note_id=394979258434"> Link.

[Jane says obamasucks]

Matt,

I just emailed you daddy's work email.

[Jim Rhoads a/k/a vjnjagvet]

Andrew, show me one lawyer who advised his/her client to talk to the police and I'll show you a malpractice case about to happen. Or at least an appeal claiming ineffective assistance of counsel.

[daddy]

Thanks Jane,

Melinda beat you to it, and I have forwarded on to Matt.

Don't know, but am guessing it might involve waitresses carrying pint glasses around with the poise and confidence etc

[matt]

got it. Many thanks, Jane.You handled that with the poise and confidence of a seasoned athlete.

[Andrew_M_Garland]

To Jim Rhoads,

You are right.

The above video and others at the link give great advice (in my opinion) about what to do at the police stop, well before you are in the interrogation room and your lawyer walks in.

The SC (above) says you must say the magic words to stop an interrogation. There are other magic words that stop or protest searches in the field, and can nudge a policeman into letting you walk away rather than detain you for no probable cause.

[Clarice]

I haven't read the opinion nor the commentary but I can't imagine a different result.

[NK]

Cecil T.

I agree with your 3:03 post.

Kennedy is a self-absorbed nabob, but like all self-absorbed nabobs he must bristle at the thought of some moron-- and Sonia S is a moron, I was in her court room enough times to know that-- coming in to "consensus" his vote to the Left. I bet Roberts is a far more effective Judge manager than Sonia. Time will tell.

[JM Hanes]

Doesn't seem wacky to me. It sounds like the underlying predicate of the appeal is that the right to remain silent is automatically invoked by Miranda unless/until the suspect explicitly declines it. In the interest of critically important legal clarity, how, precisely, could the admissibility of evidence in court conceivably be tied to law enforcement's ability to intuit a suspects intent? The argument for replacing silence vs. cooperation with a sullenness vs volubility standard must be a doozy.

[Sue]

Poor Shep. He is having a cow. What are the odds you get to have two cows in your career? Involving the same geographical region? They need to move Shep off the straight news and give him an opinion show. He can't handle straight news. Without having a cow.

[centralcal]

Glad to be at work and missing it, Sue. Lately, have any of you noticed he has ended his show (Studio B)with "commentary." He is very emphatic to let you know he is making "commentary." Jeez, now he thinks he's Brit Hume or somethin'.

[Ignatz]

--They need to move Shep off the straight news and give him an opinion show.--

And then cancel it.

[Sue]

He didn't even bother with telling anyone it was "commentary" tonight. If you didn't recognize it, well, you weren't watching. ::grin::

[Ignatz]

--I was in her court room enough times to know that--

Interesting. Any details you could enlighten us with NK? Unless of course you're invovking your Miranda rights. :)

[Sue]

Ig,

He should move to MSNBC. Or CNN.

[jean]

Ok Shep is one of my bug a boos in life.1 He is orange.2He has no self control.3He thinks he is too smart for words4Finally he needs to be slapped up side the head

[hit and run]

http://www.foxnews.com/politics/2010/06/01/facing-criticism-obama-meet-arizona-gov-brewer-thursday/>Obama to meet with Jan Brewer Thursday:

President Obama intends to meet with Arizona Gov. Jan Brewer on Thursday, a White House official told FoxNews.com, after criticism mounted over reports the president wouldn't be able to meet her while she is in Washington this week.

Brewer had requested a face-to-face meeting with Obama and Homeland Security Secretary Janet Napolitano, the former Arizona governor, as tensions rise between his administration and the Grand Canyon State over its controversial law clamping down on illegal immigrants.

The White House denies that Obama snubbed Brewer, saying there initially were some scheduling issues this week that have been resolved.

(what's up with the selection of that photo of Brewer?)

[Sue]

jean,

I volunteer to slap him.

[Clarice]

Ignatz:
-They need to move Shep off the straight news and give him an opinion show.--

And then cancel it.

_____

LORD,Yes!!!!

[Old Lurker]

Hate the guy.

Cannot take Fox News seriously as long as they feature a stupid, toung tied, liberal boob like that.

[Pagar]

"(what's up with the selection of that photo of Brewer?)"

If given 3 guesses, All three of my guesses would be that the photo was deliberately picked to make her look bad.

[Clarice]

OL, you're a man after my own heart.

[Old Lurker]

Are you back from LA, Clarice?

[Jane says obamasucks]

Here is what I don't get about the court decision - you have to invoke your right to remain silent. So what happens if you just don't talk and you don't invoke your right - you aren't talking - so what can they do - say you didn't refuse to talk? But you didn't say anything. So what?

Can a smart lawyer explain it to me please.

[Jane says obamasucks]

Here is what I don't get about the court decision - you have to invoke your right to remain silent. So what happens if you just don't talk and you don't invoke your right - you aren't talking - so what can they do - say you didn't refuse to talk? But you didn't say anything. So what?

Can a smart lawyer explain it to me please.
(boy if this shows up twice I am going to be embarrassed.

[Clarice]

Yes, I am. Haven't yet unpacked though.

[Gmax]

If you stay completely silent, you dont need a right to remain silent, you are silent. So there is nothing to use against you. But if you talk some, the guidance is there to figure out if prosecutors can use the stuff said or not.

[MayBee]

You guys keep forgetting that Shep is a rainbow in a sea of beige.

[JM Hanes]

DrJ:

I don't know if your PBS station schedules the same shows as ours does (or if you're even around), but I thought of you as I was tuning in for a couple of programs about music and the brain ("Musical Minds" on Nova and "The Music Instinct: Science & Song").

I find such neurological studies fascinating. I loved the scans of a guy listening to Bach (whose music he loves) and Beethoven (who doesn't do much for him). The Bach scans show his brain lighting up all over, while Beethoven elicited naught but some frontal lob spluttering.

I suspect subject isn't new to you, but it's fun to see the imaging in action.

[centralcal]

No kidding, MayBee!! A rainbow, indeed! A rainbow of uncontrolled "emotion." Well, y'know what I mean. Poor fella.

[daddy]

For shame Jane!

Only an idiot would post twice.

[daddy]

For shame Jane!

Only an idiot would post twice.

[jean]

Clarice you remember the name of the "don't know nothin about birthin no babies" woman.That is Shep.Except she was black and he is orange

[Clarice]

Yeah..Prissy (Butterfly McQueen) . Which one shall we call him?

[Sherriff Joe (not the bad kind of sherrif that locks people up just for illegal stuff)]

President Obama intends to meet with Arizona Gov. Jan Brewer on Thursday

I'll bring the beers, chief! Hey, are we going to invite one of those smarty professors of Hispanic and Latino Studies, for some balance? Or maybe just a normal Mexican?

Not that I'm saying normal Mexicans aren't smart and educated. They may not all go to college, but they know what is the freest, most prosperous society in the world, and by that I mean Belgium. And they know that even if we fall short in any number of moral and ethical and social justice standards compared to their great and beloved homeland, at least here you can be sure that when the government talks about border control, we're only trying to keep the ignorant white people from getting stirred up and going on pogroms.

One more thing, they know how to vote their interests.

[Melinda Romanoff]

jmh-

Do NOT get the math geeks aroused on the correlations of music and higher structures around here.

It will end in a bad Tim Blair definition of some sorts.

[can't. top. that.]

[matt]

the Left just keeps on getting more fascist. The Hill headline is that the leftist Aztlan groups now want the FCC to police talk radio and cable. The usual suspects.

I blogged on the threat to democracy by these leftists and our Dear Leader. God help the Republic. LUN

[Janet]

Matt, LUN is a coalition called So We Might See. An inter faith coalition for media justice. The members are interesting.
Talk radio will be attacked with this demand for religious diversity.
Your blog post is great.

[Jane]

But if you talk some, the guidance is there to figure out if prosecutors can use the stuff said or not.

Yeah but if you talk some, you have by talking waived your right of silence. So what's the dif? Where is Jim Rhoads when we need him?

[On the street they call the dogs. Open sesame.]

Can't you at any point simply become still?
============

[Jim Rhoads a/k/a vjnjagvet]

Yeah but if you talk some, you have by talking waived your right of silence. So what's the dif? Where is Jim Rhoads when we need him?

I believe you have hit on the problem, with the minority opinion, Jane. IIRC, the Miranda warning goes something like this:

You are under arrest for ______.

You have the right to an attorney of your choice, and if you cannot afford an attorney, one will be furnished for you.

You have the right to remain silent but anything you say will be used against you. [emphasis added]

The emphasized part of the warning is there to make sure the accused understands that s/he cannot be forced to testify against her/himself in violation of the Fifth Amendment.

In the cop shows on TV, you often see a defendant or counsel stopping an interview with cops or detectives by saying something like "ok I'm/he's/we're done" or "I'm/she's/we're not talking anymore", and the interview is terminated.

In this case, after the warning,Thompson continued to carry on a conversation with his interrogators and did not tell them anything to the effect that he was done or that he was not talking anymore. but o many questions, he didn't respond at all. Nonetheless, he answered some questions when the police continued the interrogation. One of those answers was incriminating. The issue was whether Thompson had invoked his right to remain silent by failing to respond to a significant number of questions.

The majority said no, all his statements made after the warning were admissible evidence, including the incriminating statement.

The minority said the police should have quit after he failed to respond to a significant number of questions since by that "silence" it should have been clear to the police that he was invoking his right to remain silent.

I agree with the majority because Thompson was clearly warned, in accordance with Miranda, that "anything [he] said would be used against him". He said something. It was used against him. End of story. He didn't waive anything. He just didn't choose to remain silent.

[PDinDetroit]

My friends in the Open Carry community echo the responses here so far. LUN.

Favorite comment there so far:

I honestly sometimes wonder how such faulty logic and lack of coherent reasoning ability permits these people to function in society.

[Jane]

The minority said the police should have quit after he failed to respond to a significant number of questions since by that "silence" it should have been clear to the police that he was invoking his right to remain silent.

Ahhhh now it makes sense. Thanks

[Ignatz]

Sotomayor is a dunce. She calls saying that you are invoking your right to remain silent counterintuitive, because you have to say you are rather than remain silent.

Lurks there a person truly stupid enough to reason like that other than a judge on the bench? I half suspect her of being the lawyer supplying the questions in the apparently genuine exchange below which i never tire of quoting:
Q: Doctor, before you performed the autopsy, did you check for a pulse?
A: No.
Q. Did you check for blood pressure?
A: No.
Q: Did you check for breathing?
A: No.
Q: So, then it is possible that the patient was alive when you began the autopsy?
A: No.
Q: How can you be so sure, Doctor?
A: Because his brain was sitting on my desk in a jar.
Q: But could the patient have still been alive nevertheless?
A: It is possible that he could have been alive and practicing law somewhere.

[Jim Rhoads a/k/a vjnjagvet]

That's one of the best, Ignatz.

BTW. SS was a prosecutor back in the day. With logic like that, I wonder how many crooks got off on her watch.

[macphisto]

as many as she could manage.

[bunkerbuster]

Yet again we see the conservative view of constitutional rights as privileges that can be revoked by the government and, indeed, in this case, should be jettisoned on a mere technicality, lest they hinder the exercise of state power.
The right to remain silent is a manifestation of the right not to be compelled to incriminate oneself. It's part of our birthright as humans, not a gift from the government. It's essential to ensuring justice, which is why the framers included it in the Bill of Rights. Why would anyone seek to make it more difficult for suspects to exercise that right?
There is always a balance, of course, between individual rights and the state's needs. It's astounding, though, the degree to which American conservatives side with the state's prerogatives whenever the state is in a position of power, while taking the opposite side when the state is in a position of weakness.

[Mars vs Hollywood]

Yet again we see the conservative view of constitutional rights as privileges that can be revoked by the government and, indeed, in this case, should be jettisoned on a mere technicality, lest they hinder the exercise of state power.

Oh, nonsense. Nobody's "revoking" anything, they're merely requiring that it be asserted.

What in God's name is so hard about requiring someone to say, "Hey, I'm not gonna answer any more of your questions," in order to trigger the cessation of questions?

To argue otherwise is to make police interrogation completely unworkable, as any defense attorney will then be able to use a three-second pause on a taped confession as an "implied assertion of the right to remain silent" and throw out any statement.

[sookie]

This seems to me to be quite rational. Not only is it a question of how long does one need to remain quite to invoke the privilege remaining silent during interrogation but it follows the same logic of asserting the 'taking the 5th against self incrimination' and refusing to otherwise answer in a court proceeding.

[Las Vegas DUI Lawyer]

Let me see if I can understand the majority's reasoning: The constitutional enumerates rights given to us by God; these enumerated rights exist outside of the law, and are just written into the constitution to state that we recognize these rights and will not touch, nor breach them; the Miranda warning is simply a notification of those God given rights, to make absolutely sure people are already aware of those rights; but those rights are now taken away.

The entire impetus of the enumerated rights of the constitution is that they exist outside of any laws written down. Concordantly the presence or absence of the Miranda warning is immaterial to your God given right to remain silent. Therefore there is no constitutional NEED to invoke a right you already have, given by the almighty creator, which man cannot abridge.

This was the very heart of why the rights were written down in the constitution, to stop a government that would come into your house, ransack it, question / torture you and throw you in jail just because they are sovereign.

Our constitutional rights supersede any claim of sovereignty the government claims to have over us.

This decision is wrong at the very core. How could 5 men in good conscious deliver such a heinous ruling. It is not even up for interpretation that a man need not assert their rights. The right was asserted 200 years ago.