You have the right to remain silent ... but only if you speak up

Sometimes I feel like all rationality has gone out the window when it comes to the intricate details of the Supreme Court's jurisprudence.  In this past week, the case law surrounding those infamous Miranda warnings have gotten quite a workout in two decisions issued last week and an oral argument heard today.  Today's arguments was one of those that had me wondering whether we've gotten so caught up in minutiae that we're missing out on the big picture.  (Transcript here.)

The question in today's argument focused on whether a defendant has to affirmatively invoke or waive his right to remain silent.  In this particular case, the defendant said basically nothing for upwards of 2 hours and 15 minutes.  This left the court to wonder whether the defendant had actively invoked his right to remain silent by remaining silent.

Justice Scalia pondered, "Why shouldn't we have a rule which simply says if you don't want to be interrogated, all you have to say is 'I don't want to answer your questions'?"  Later, he restated this point, "Why don't we have just a clear rule: You are read your rights; if you don't want to be questioned all you have to say is 'I don't want to be questioned.'"

Well, let me propose an alternate, and equally simple, rule.  How about the police can't ask a suspect any substantive questions unless and until the suspect affirmatively says, "I will waive my 5th Amendment rights."  No obligation on the suspect to say anything at all.  And if a suspect remains silent, there you go.  Right not waived.  Justice Kennedy got it.  He suggested we have to guide the police so, "Why don't we tell the police, there must be a waiver before you can continue to interrogate?"  See how clear and simple that would be?  The response by the U.S. attorney was all about what a burden that would put on law enforcement.  (As in how will we get convictions if we can't badger suspects into giving confessions?)

Too many of this nation's judges, including several justices on the supreme court, are more concerned with police convenience when fashioning the rules surrounding our constitutional rights.  It would make police work too difficult if they had to refrain from interrogating suspects who refuse to talk, so we need to fashion rules that focus on the needs of police to get information out of suspects.  What they should be concerned with is giving full force and effect to each individual defendant's individual right against being coerced into incriminating him or herself.

Doesn't it seem a bit much to suggest that we can't read anything into it when a suspect remains silent after being told he has the right to remain silent?  Sure, it's a bit simple, a bit on the nose.  But considering that we tell every person subjected to custodial interrogation that they have the right to remain silent, it feels disingenuous to respond to silence as if it's ambiguous.

Justice Scalia's proposed rule would require the suspect to engage in a dialogue to invoke his right not to engage in a dialogue.  Seems a little backwards to me.

Finally, towards the very end of the argument, when the state's attorney was back up for rebuttal, Justice Stevens offered this brilliant tidbit, "So the question  is...did he indicate in any way that he wished to remain silent?  And until the 2 hours and a half later when he did answer the three questions, that's pretty -- it's at least arguable that his silence indicated he wished to remain silent."

Hmm, now there's an idea.  According to those Miranda rights we've all heard on t.v. so many times, a defendant has the right to remain silent.  So the simple rule would be that a defendant who remains silent in the face of questioning has,  in fact, invoked that right to remain silent.  But that's way too simple.