You Do Not Have a Right to Remain Silent Unless You Speak, Court Says


Statist reactionaries on the U.S. Supreme Court have again chipped away at the liberty of American citizens.

Justices Anthony Kennedy, Chief Justice John G. Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. have joined forces to comprise the Soviet bloc on the Court that consistently takes a narrow view of the individual liberty of American citizens in the case, Berghuis v. Thompkins, No. 08-1470.

The Court under Chief Justice John G. Roberts Jr. has become a Constitutional wrecking ball.

Justice Sotomayor wrote the dissent, concluding: “Today’s decision turns Miranda upside down. 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. Today’s broad new rules are all the more unfortunate because they are unnecessary to the disposition of the case before us. I respectfully dissent.”

Mere Silence Doesn’t Invoke Miranda, Justices Say


WASHINGTON — Criminal suspects seeking to protect their right to remain silent must speak up to invoke it, the Supreme Court ruled on Tuesday, refining the court’s landmark 1966 ruling in Miranda v. Arizona.

Justice Anthony M. Kennedy, writing for the majority in a 5-to-4 decision that split along familiar ideological lines, did not disturb Miranda’s requirement that suspects be told they have the right to remain silent. But he said courts need not suppress statements made by defendants who received such warnings, did not expressly waive their rights and spoke only after remaining silent through hours of interrogation.

Justice Sonia Sotomayor, in her first major dissent, said the decision “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.”

Monday’s decision followed two in February that also narrowed and clarified the scope of the Miranda decision. One allowed police officers to vary the wording of the warning; the other allowed a second round of questioning of suspects who had invoked their rights so long as two weeks had passed since their release from custody.

The latest case concerned Van Chester Thompkins, a Michigan man accused of shooting another man to death in 2000 outside a mall. Arrested a year later, Mr. Thompkins was read his Miranda rights but refused to sign a form acknowledging that he understood them.

Mr. Thompkins then remained almost entirely silent in the face of three hours of interrogation, though he did say that his chair was hard and that he did not want a peppermint.

After two hours and 45 minutes of questioning, Mr. Thompkins said yes in response to each of three questions: “Do you believe in God?” “Do you pray to God?” And, crucially, “Do you pray to God to forgive you for shooting that boy down?”

His affirmative response to the last question was used against him at trial, and he was convicted of first-degree murder. The federal appeals court in Cincinnati ruled in 2008 that his statement should have been excluded because prosecutors could not prove that Mr. Thompkins had knowingly and voluntarily waived his right to remain silent.

Justice Kennedy acknowledged that “some language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement.”

Indeed, the Miranda decision said that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” It added that the government faced “a heavy burden” in trying to prove that a suspect’s waiver was knowing and intelligent.

Justice Kennedy said that decisions since Miranda had undercut its language and that a more sensible rule put the burden on suspects to invoke their rights.

“A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,” Justice Kennedy wrote. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined Justice Kennedy’s opinion.

In her dissent, Justice Sotomayor said the majority had created a kind of paradox. “A suspect who wishes to guard his right to remain silent,” she wrote, “must, counterintuitively, speak.”

Justice Kennedy said that people who knew their rights and acted “in a manner inconsistent with their exercise” might be presumed to have waived their rights, meaning that responding to police questioning is itself an implied waiver of the right to remain silent.

Justice Sotomayor, in her dissent, said “these principles flatly contradict” earlier decisions from the court.

“At best, the court today creates an unworkable and conflicting set of presumptions,” she wrote. “At worst, it overrules sub silentio an essential aspect of the protections Miranda has long provided.”

The better practice in the face of ambiguous responses from a suspect, Justice Sotomayor wrote, would be for the police to ask follow-up questions like, “Do you want to talk to us?”

Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer joined Justice Sotomayor’s dissent.


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