Remaining silent isn't what it used to be

The United States Supreme Court issued a new opinion on the right to remain silent today.  You may have read about it.  Here is the opinion.  The actual crux of the decision is pretty simple:  If you want to invoke your right to remain silent, you just have to tell us.  When you put it like that, it seems innocuous enough.  But it isn't.  It's a dangerous opinion that shows the majority of this court has no connection to the real world of criminal suspects.  It shows that the majority thinks the "rights" of police are equal to the rights of suspects.  And it shows we might be in for a long, bad ride with this court.  But at least Sotomayor showed her stripes in dissent.

Let's break down what the Court really said.  The defendant in this case was read his Miranda rights and essentially remained silent for almost 3 hours before caving and giving three "yes" responses that were ultimately relied on by the prosecution to prove his guilt.  (Well, he did say the chair was too hard and he didn't want a peppermint and he said "yes" or "no" once in a while, though the opinion doesn't specify what questions those words answered).  From this, the majority concluded that the defendant never invoked his right to remain silent.  You have the right to remain silent, but if you remain silent, we'll presume that you have not invoked that right to remain silent.  When we said you could remain silent, we didn't mean that literally.  You have to actually tell us you want to remain silent.  Gee, that makes sense. 

Why is the burden on the suspect to end questioning?  Shouldn't the burden be on the police to get an affirmative, clear waiver before beginning questioning?  At the very least, if today's decision is right, shouldn't the Miranda warnings be modified to ask suspects if they wish to invoke the right to remain silent?  (I fear the majority's response might well be that we don't need no stinkin' Miranda warnings...)  The police, and evidently the majority, don't want a system that presumes invocations of the right or even a system that makes it too easy for suspects to invoke.  That would stand in the way of police getting confessions and we know our adversarial justice system would just crumble without confessions. 

One central question in this case is this: is the right to remain silent a right one can waive or a right one must invoke?  Miranda and its progeny have always spoken of the state having to prove that the defendant waived the right to remain silent.  (A defendant must affirmatively and unequivocally invoke the right to an attorney, but that is a very different right.)  This new case treats the right to remain silent as a right that must be invoked.  Verbally, not just through the act of remaining silent as the police always tell a defendant he can.  It's a subtle shift, but not an insignificant one.


For questioning to stop when a suspect wants a lawyer, the suspect must make an unequivocal statement invoking his/her right to a lawyer, so the majority sees it as totally reasonable to apply that same standard to the right to remain silent.  The problem is that people often don't speak unequivocally.  A suspect might say, "Can I have a lawyer now?"  That suspect will think she has made clear her desire to cease questioning until she talks to a lawyer.  But courts have repeatedly held statements like that are not clear and unequivocal invocations that require police to stop the interrogation.  So imagine a suspect saying, "I don't think I want to answer any questions."  Well, that's not clear and unequivocal, is it, so police will most likely be allowed to continue probing.  Police are given far too much latitude to interpret what a suspect means.  The longer police are able to keep talking to the suspect, negotiating about whether that suspect is really sure she doesn't want to answer any questions, the likelier it is that the police will break that suspect down and get some incriminating statement out of her.  And the whole point of the right to remain silent is that suspects don't have to engage with police at all if they choose not to.  But the majority has now put suspects in the contrary position of having to engage with police.

To me, this is like dealing with UnLocke the Smoke Monster on LOST.  A big point was made by many characters that people should not allow Smokey to speak to them because once he did, he could be so darned persuasive that you wouldn't be able to resist.  That's the same problem at issue here.  The majority is requiring suspects to engage in a dialogue with police to invoke their rights not to engage in a dialogue.  But, let's be honest, in most dialogues, the police have the upper hand.  Especially since police and courts are pretty good at seeing ambiguity in statements that most people would think are pretty clear.  Since, as documented by Justice Sotomayor in her dissent, statements like "I'm not going to talk about nuthin'" and "I just don't think I should say anything" and "I don't even want to, you know what I'm saying, discuss no more about it" and "Okay, if you're implying that I've done it, I wish to not say any more.  I'd like to be done with this", among many, many others, were all found to be ambiguous and too equivocal to be a successful invocation of Miranda rights.  So now suspects have to run this tricky gauntlet of uttering the magic words that no cop can claim is anything other than an unambiguous, unequivocal, absolutely clear invocation of the right to remain silent.  Seems it would have been simpler for suspects if they could just remain silent and have that be respected.  And it would be far preferable to me if the state had to get a clear and unequivocal waiver before they could ask questions.  But we wouldn't want to tell police they can't interrogate suspects unless those suspects specifically, knowingly, and voluntarily agree to waive their right against self-incrimination.

The majority's decision comes from the point of view that police have just as much right to interrogate suspects as suspects have the right to remain silent.  And that scared suspects will magically know exactly what to say to avoid an interrogation.  But that's not the reality.  People under police suspicion can quickly become confused, tired, overwhelmed, and willing to say anything.  It's important to note that a not insignificant percentage of wrongful conviction cases involve false confessions.  The concern that overzealous police questioning will yield false confessions is a real one.  So there's a reason why I'm so troubled by the notion that suspects have to say something to get the police to stop talking to them.

Can it really still be said that we have the right to remain silent if we have to speak up?