Speak up, Speak up - You Say You Want to Remain Silent?

by Katherine Scardino

On June 1, 2010, the U.S. Supreme Court watered down a legacy of constitutional rights afforded to all of us.

Who hasn't heard of Miranda rights? My guess is that nearly every U.S. citizen knows about Miranda. It's not uncommon for those I represent to say to me, “Hey, man, that cop didn't read me my rights.” They know that suspects in a criminal investigation have the right to be informed that everything they say can and will be used against them in a court of law. They have to be told that they have the right to a lawyer and the right to refuse to answer questions.

Let's take a look at Miranda v. Arizona. In 1966, Mr. Ernesto Miranda (photo right), a day laborer who'd been convicted and sentenced to 20 to 30 years for rape, kidnapping, and armed robbery, got a second bite at the apple after a history-making Supreme Court decision. The justices ruled that Miranda needed to have been informed of his rights before being interrogated. Afterward Miranda was retried and again found guilty. Ironically, he was sentenced to the identical number of years. Yet while Ernesto Miranda's fate remained unchanged, the "Miranda rights" birthed by his successful appeal had a major impact on American justice.

Based on this landmark decision, it was clear that if a citizen was arrested, he had to be informed of his rights before being questioned. To assure that happened, suspects were asked to initial next to each right as it was read to them. That didn't mean that they couldn't talk to police. If after being told their rights they wanted to make a statement, that was allowed, but only after they signed a waiver in front of a witness. In a very real sense, as U.S. citizens, Miranda was our security blanket. The ruling became so integral a part of our justice system that Chief Justice William H. Rehnquist once said: “the warnings have become part of our national culture” (Dickerson v. United States, 530 U.S. 428 (2000). Like the right to life, liberty, and the pursuit of happiness, the right to be informed of our constitutional rights by law enforcement appeared inalienable.

That's not to say that there haven't been challenges. Over the years, there have been many assaults on our Miranda rights. For instance, in Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court halted a controversial practice by police, who withheld Miranda warnings until after they obtained confessions. Despite these frequent official transgressions, however, we've always managed to maintain at least the ruling's spirit.

That is until now. Again, remember that to give a statement without counsel, one that could later be used against him in a trial, the accused had to sign a witnessed document specifically waiving his rights. That was before Berghuis v. Thompkins. You want to invoke your right to remain silent? Great. But post-Berghuis refusing to sign the waiver and remaining silent isn't enough. Now, you'd better speak up and spell out your intentions!

In the Berghuis case, the Supreme Court held that suspects must specifically inform police officers that they are invoking their rights, both to remain silent and that they want a lawyer. In practice, this means that police can keep interrogating a suspect who refuses to talk as long as they want in hopes that the person will crack and start talking. According to his appeal, Thompkins did just that. He refused to sign the waiver and remained silent for three hours, while police bombarded him with questions, before he finally implicated himself in a Michigan murder. Based on his "confession," Thompkins was convicted. He appealed, insisting that the questioning should never have taken place, because by refusing to sign the waiver and remaining silent for hours, he had invoked his Miranda rights. The court decided against him.

Justice Sonia Sotomayor wrote a strong dissent, stating her fellow justices' decision “turns Miranda upside down.” She wrote: “Criminal suspects must now unambiguously invoke their right to remain silent - which counterintuitively requires them to speak.... 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.”

In the Berghuis case, Thompkins was questioned for three hours without making a statement. Then police asked him if he prayed for forgiveness for “shooting that boy down,” and the suspect said one word: “Yes.” Justice Sotomayor said that to believe that a suspect waived his right to remain silent by making an uncoerced statement to police is “a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided during custodial interrogation.”

Many people applaud this expansion of the rights of police. However, think of it this way: You or one of your children is arrested for a DWI. How fast do you call a lawyer? How fast do you want to know your rights and to be sure that these rights are protected and exercised? No one wants a culture where it is acceptable for police to coerce confessions, using either psychological or physical means, or to interrogate citizens for hours and hours at a time without stopping, hoping the suspect will crack. But the Berghuis case holds that you and I can no longer invoke our rights by remaining silent. You must speak up.

What do you think?