Court: Suspects Must Say They Want to Be Silent.

[elleng]

Source: nyt./ap

The Supreme Court says suspects must explicitly tell police they want to be silent to invoke their Miranda protection during interrogations.




Read more: http://www.nytimes.com/aponline/2010/06/01/us/politics/AP-US-Supreme-Court-Miranda-Rights.html?_r=1

---

Details later

[Solly Mack]

1. K&R

[no_hypocrisy]

2. Well, the term "silent" just got defined as the affirmative act of invocation.

[ananda]

3. So .. you have the right to say you want to be silent.

But you don't have the right to just be silent.

This is such a bizarrre country.

[jberryhill]

4. How do you tell someone "I want to be silent"?

Sounds kind of self defeating, no?

"Now, when I blow this whistle, I will be silent thereafter..."

[grantcart]

12. "I decline to answer any questions" "I want my lawyer present"

"Call my lawyer"

any of these will terminate questioning.

Seems reasonable that someone has to make some statement that they want to invoke their rights.


BTW a close relative of mine who is very conservative advises that if you are a possible suspect that you never answer any questions without the presence of an attorney no matter how obvious it is that you could not have committed the crime.

[tammywammy]

19. I agree grantcart n/t

[msanthrope]

23. That's conflating two different rights/amendments.

Not to nitpick--although it is my profession--invoking one right does not secure the other.

Read McNeil.

The Sixth is offense specific---so if you invoke it for the burglary charge you are being investigated for, then the cops can still come back and ask you about a rape charge...

As for Miranda, that is supposed to be blanket, and is supposed to cover a reasonable period of interrogation, for all things. But its porous...and thus, you have defendants who have no problem giving an alibi, but don't wanna talk past that. That works as a waiver of Miranda, if you don't know what you are doing. And most suspects don't.

So now the Supreme court is saying one must invoke for both....fuckers...

edited to add--if you are ever in interrogation, invoking the 6th does NOT invoke the 5th. Neither does invoking the 5th invoke the 6th. I want to make that clear, 'cause I sometimes get PMs and I can't and won't give legal advice out on the Internets....but anyone, IMHO, in custody (pulled over, cuffs, in a cop car, in a cop station, in a police interrogation room, being being booked, in a hospital with police escort...etc....INVOKE BOTH)..

[elleng]

46. Good advice, ms!

(I'm not giving any, either!)

[msanthrope]

66. Thank you- n/t

[Kelvin Mace]

50. Not a lawyer, but

much experience with police misconduct. The only thing that should ever come out of your mouth when in custody is the non-stop mantra:

"I want to call my lawyer."

This should be repeated in response to all questions. The cops are NEVER your friend, they are almost always looking for the easy solution, and that means hanging it on you. A cop once told me that there were "two kinds of people in the world, perps and cops."

To which I replied that I thought there were two types of criminals in the world: Those with badges and those without.

He wasn't amused, but then, neither was I.

[Q3JR4]

45. Never answer any questions asked of you by the police,

because any statement that you make to exonerate yourself is hearsay, while anything they can twist to use against you WILL be used against you.

Basically http://www.youtube.com/watch?v=6wXkI4t7nuc">what this guy said.

Q3JR4.
_{Oldie but a goodie.}

[msanthrope]

24. I suppose holding your hands over your ears and saying "LA LA LA LA"

isn't going to be seen as an invocation, right?

[anigbrowl]

40. "i choose to remain silent and would like to consult with an attorney."nt

[jberryhill]

63. I guess the irony meter is not working today /nt

[unblock]

5. and if you say you wish to remain silent, they will decide that that mean you have waived that right

[Dappleganger]

6. What if they don't understand the language??

I don't see this going very well.

[elleng]

7. I agree.

Gotta see the decision.

'The case at hand, Berghuis v. Thompkins involved a shooting suspect, Thompkins, who tried to have an inculpatory statement made during interrogation thrown out on the grounds that he had not explicitly waived his right to remain silent. In a 5-4 decision, the Court ruled that

“Thompkins’ silence during the interrogation did not invoke his right to remain silent. A suspect’s Miranda right to counsel must be invoked “unambiguously. . . .” If the accused makes an “ambiguous or equivocal” statement or no statement, the police are not required to end the interrogation. . . or ask questions to clarify the accused’s intent. . . . Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the question-ing. He did neither.”

The Court further ruled that the act of knowingly and voluntarily making a statement to police constitutes a waiving of the right to remain silent.

The decision was a usual-suspects 5-4 split, . .'


http://corner.nationalreview.com/post/?q=OWZiNGY4NTdjZTJiZDQ5MDQxY2YwYzczNzk5ZjBiNDI=

[msanthrope]

29. What troubles me is that he refused to sign the waiver---and that's

undisputed.

So the presumption going forward is--sign or not, the cops can presume you have not invoked unless you affirmatively say "I'm not talking to you!"

So you must do both--not sign, and state.

[jberryhill]

28. Then you will need to be silent in more than one language

Get a deaf interpreter.

[Jackpine Radical]

8. One more impediment removed

On the road to American totalitarianism.

Gotta love that Roberts Court.

[valerief]

9. The Supreme Court HATES Americans. nt

[msanthrope]

25. No, just the male Catholics on it. The rest tend to have a healthy view

of sex, sexuality, and a reasonable take on the Bill of Rights.....

[Towlie]

10. Your link wants a password. This one doesn't:

http://www.google.com/hostednews/ap/article/ALeqM5g0h1F81MI0Bkk-APutBxmT82_QCAD9G2HCD80

[AlbertCat]

11. Well, just so they aren't legislating from the bench!

But I was wondering just who is gonna inform suspects of THIS right?

"You have the right to remain silent.... but you must remind US of that right. Book 'em Danno!"

[elleng]

16. Same as ever, I expect.

http://www.supremecourt.gov/opinions/09pdf/08-1470.pdf

[kestrel91316]

13. So, if you simply remain silent, the cops can keep harrassing you and beating you FOREVER??

[anigbrowl]

41. No. They can go on questioning until you ask for an attorney or say you're remaing silent

In this case the guy mostly sat there and said nothing for 3 hours but the few questions he did answer indicated guilt (specifically, 'are you going to to pray for forgiveness for shooting that boy down,' to which he said yes).

Later he claimed his passive silence meant that information was inadmissible. If you actually keep silent rather than just mostly silent then nothing has changed.

[Democat]

14. It doesn't sound that unreasonable to me, and I am no fan of this right wing court.

They basically say that the guy should have stated, "I invoke my right to remain silent." Just like you have to invoke your right to a lawyer. I don't think this is exceptionally unreasonable. As far as I can tell from reading the article, they did not remove or weaken your right to remain silent, they just said that you have to invoke it, right?

Also, if I read this right, the guy confessed or somehow implicated himself. If he had truly "remained silent" there would be no issue here. So, you can either invoke your right, or you can just remain silent. What you can't do is to sit quietly and later confess.

I was happy to see Sotomayor writing for the minority, though.

[NJmaverick]

17. I felt exactly the same way

you can simply remain silent if you don't want to speak. However if you want the questions to stop you have to invoke your right to silence. This doesn't seem unreasonable.

[jberryhill]

18. "the guy confessed or somehow implicated himself"

Yes, but that's normal for Miranda cases.

These things only get to the Supreme Court because someone is appealing a conviction based on evidence obtained while in custody.

Ernesto Miranda really did rape that girl, too.

It's not an important observation either way, but "no harm, no foul" is not how these cases are approached, since they ALL confessed to something. That's why the case is there.

[msanthrope]

32. Why wasn't his refusal to sign a waiver good enough?

I mean, the guy refused to sign a Miranda waiver. If you want to say he must now refuse, AND invoke, that's changing decades of jurisprudence and putting the burden on the suspect....

[WinkyDink]

53. Oh, yeah, like "invoke" is a word most Americans even KNOW.

[ixion]

15. Lame, but typical

from our SCOTUS.

[deuce1]

20. It's great

now to have a SCROTUS that isn't made up of ideologs. Cops everywhere can throw away that little card they can't read anyway. Defense attorneys will run away with this.
The many (and not the last) effects of the late GW.

[Nye Bevan]

21. The guy answered "yes" when asked if he prayed for forgiveness for "shooting that boy down"

and then tried to argue that his statement should not be admissible.

If he had really wanted to invoke his right to remain silent, perhaps he should have remained silent.

[Shipwack]

26. Only problem with that is that he's screwed either way...

"Did you pray for forgiveness for shooting that boy down?"

"Yes" = so you did shoot that boy down.

"No" = so you shot that boy down and don't regret it.

I can almost imagine myself agreeing to "yes" after a long interrogation in the confused hope that saying I prayed would get them to feel sympathy for me and leave me alone.

"When did you stop beating your wife?"

[msanthrope]

27. You caught the problem exactly--holding silent to a question like that

can be used against a defendant if they have not invoked Miranda....

If you have not shut it down, or worse, if you've answered some questions, and not others, the cops can use that.

[davepc]

36. "I refuse to answer your question"

Police play semantic tricks all the time.

Can't go wrong with:

"I refuse to answer any questions" and "I do not consent to any searches"

Even being asked "Do you know why I pulled you over" during a traffic stop is a question designed to make you incriminate yourself.

[anigbrowl]

42. not really

In the second case the argument of no regret wouldn't be evidentiary.

[Igel]

52. That question has a non-deniable presupposition in it.

To answer the top-most question, "Did you pray. . . ?" you have to assume that the embedded presupposition ("you shot down that boy") is true.

It doesn't matter if the top-most question is answered "yes" or "no." You can't "get to" the presupposition to deny it with just a yes or no. You have to unpack it, make it so you can deny presupposition in order to deny it.

But since you have to assume the presupposition is true to parse the question, "When did you stop beating your wife?" your brain has to say, "beating wife" = "true". Even just hypothetically. Thing is, unless you quickly revise the truth value you may forget your revision--not that you couldn't forget the "not" in the revised "he did not beat his wife." Or perhaps you don't ever revise it, so you continue to think "beating wife" = "true."

Embedded presuppositions are nasty for semanticians and logicians.

They're pure gold for politicians. For fun, listen to a speech--it really doesn't matter if it's dem or repub, a "good" or "bad" guy. Try to spot all the embedded presuppositions, and see which way they tilt. You'll find the following almost every time: All the presuppositions about the other guy are nasty, all the presuppositions about you and yours are good. It doesn't matter if they are *true* or not, because a lot aren't--the "good" ones are about things that you want to do, hope to do, claim to do, would have done, should have done; the "bad" ones are things you say they'll do, claim they wanted to do, etc.

It takes a bit of explicit teaching of critical thinking to see what's going on with them, esp. when they're good things about the "right" side.

[davidinalameda]

62. were you in the interrogation room with him

you have no idea what went on before he said that

[benld74]

22. What if the suspect CANNOT SPEAK at all??

[anigbrowl]

43. then it makes no difference

This only applies to admissibility of statements made following silence. You still can't impute meaning to silence.

[Ian David]

30. You should have the right to a lawyer or a prostitute.

If you're gonna incriminate yourself, you should get SOMETHING to show for it.

[droidamus2]

31. I'm no expert in legalese but...

Isn't this sort of backward. If it is a 'right' shouldn't it be enforced until I explicitly state that I am willing to give up the right. So therefore the police should have to read you the Miranda rights and at that point if you don't specifically say you understand are willing to give up your Miranda rights you should be considered to be standing on your Miranda rights and no longer questioned. This decision sounds like it was not made to protect civil rights and the citizens of this country but was made to help out the police and the courts put more people in jail.

[msanthrope]

35. You have it--here, the guy refused to sign a waiver of his rights.

That should be enough to invoke it.

[Travis Coates]

58. You have it--here, the guy refused to sign a waiver of his rights.

IANAL but if you invoke your right to remain silent you waive it as soon as you start talking. (according to Dr. James Duane) I can't refuse to sign a waiver and then confess to gang raping your grandmother and expect them not to use it in court.

As others have said 'Officer I do not consent to any searches." "Officer I do not wish to make any statements or answer any questions W/ out consulting an attorney" "Officer am I free to go?"

Nothing more

[whopis01]

47. You never give up the right - it is always enforced - this does nothing to change that.

However, you can choose whether or not to execute your right.

Technically, the right is actually that someone can not be "compelled in any criminal case to be a witness against himself". You actually do not have a "right to remain silent" in all situations. If you are given immunity, for example, you can be compelled to testify as it would not qualify as being a witness against yourself (since you would not be the one under prosecution).

[droidamus2]

48. Again I am not a lawyer

Aren't you talking about two different things. The Miranda rights do say you have a right to remain silent whereas the right to not incriminate yourself in court is another part of what could be considered a set of rights that protects the suspected or accused. To me there is a time line involved here first you are a person of interest this could mean they just think you have pertinent information or that they think your were involved. At some point they determine that they have enough information to have you arraigned and if the evidence stands up then you are put on trial.
The right to remain silent deals with the first part where it has not been ascertained as to what your involvement is and is therefore there to protect all citizens. The right to not incriminate yourself is during the trial stage. Again part of the same basic set of rights but applied at different times. To me this is logical evaluation of the question but after talking to my brother, who was a lawyer, over the years I realize that logic and the law don't always coincide.

[whopis01]

59. "Miranda rights" do not really exist (not as they are commonly described)

The purpose of the Miranda warning is to inform a person of his or her 5th and 6th amendment rights. You do not have an absolute right to remain silent - you do however have an absolute right to not be compelled to testify against yourself.

Your right to not testify against yourself begins long before the trial stage. The whole "anything you say can and will be used against you" is there specifically to inform you of this right and the consequences of not taking advantage of it. If you say something to the police, even well before the trial, it could potentially be used during a trial as testimony against you.

The long and short of it is that a "Miranda warning" is intended to information a person of his or her constitutional rights.

[elleng]

49. Sounds reasonable.

As usual, hard decision comes out of difficult fact situation.

'Encounters in interrogation rooms still and often are a test of wills, with detectives trying to get answers and suspects trying to avoid talking themselves into deeper trouble. As a result, the Court often has had to reinterpret its 1966 decision in Miranda v. Arizona. It did so again on Tuesday, and this time the result decisively tilted the warnings procedure toward the police.

By a 5-4 vote, the Court for the first time made two things clear about Miranda rights: first, if a suspect does not want to talk to police — that is, to invoke a right to silence — he must say so, with a clear statement because it is not enough to sit silently or to remain uncooperative, even through a long session; and, second, if the suspect finally answers a suggestive question with a one-word response that amounts to a confession, that, by itself, will be understood as a waiver of the right to silence and the statement can be used as evidence. Police need not obtain an explicit waiver of that right. The net practical effect is likely to be that police, in the face of a suspect’s continued silence after being given Miranda warnings, can continue to question him, even for a couple of hours, in hopes eventually of getting him to confess.'

http://www.scotusblog.com/

When asked, the guy said 'yes,' he'd prayed for forgiveness for his 'bad deed.'




:-(

[droidamus2]

51. Disagree

Though the law may say differently the way I interpret the word 'right' is that I as a citizen have that right without having to do anything else other than being a citizen. Therefore if the police or anybody else want me to give up that right it should be on them to get me to explicitly waive those rights. So as I have stated elsewhere under that scenario if they read you your rights, you say you understand them, they should then have to explicitly ask you if you wish to waive those rights and if you say yes you should then have to sign a document saying you so waive. If you don't explicitly say you want to waive the rights all questioning should end at that point. If it is a right of a citizen (because at that point your are not yet a criminal) it should not be a game of if the cops can fool you they win. Again that's just the way I think it should be.

[elleng]

61. SHOULD be, yes.

Big part of cops job is to play games, it appears.

[elleng]

33. Berghuis v. Thompkins

Source: scotusblog

Decision re: Miranda.

Read more: http://www.supremecourt.gov/opinions/09pdf/08-1470.pdf

---

STILL must receive Miranda warning; must unambiguously waive the right to not speak.

[Soylent Brice]

34. K&R

[msanthrope]

37. But what does unambiguously waive mean now?

This dude refused to sign a waiver, or an acknowledgement, or whatever paperwork they were shoving at him---I mean, they keep quoting Davis, and ignoring the fact that this guy refused to waive when he was given the chance to. And that wasn't enough.

Jeebus...what a court.

[Igel]

55. The "right" here is to not have questions asked.

You can not waive your rights and still waive the right to be silent.

But you can also not waive your rights in writing and then waive them by speaking. Not explicitly waiving your rights is not the same thing as asserting them. Perhaps you're just thinking it over. Perhaps you don't know what to do.

You can refuse to verbally claim the right to be silent and just sit there, silently. That's your right, and non-action is asserting that right.

In both cases the problem is that non-action would have to be interpreted as action. Under that reading, you'd have to sign a Miranda waiver if the police stopped and wanted to ask you anything. That logic quickly gets reduced to absurdity.

Then again, sitting there quietly for hours while being asked questions is also absurd. But that wasn't this case.

But you also have the right to not be asked questions. The only way that the police know that you want to be left alone is to say, "Leave me alone." Which in Miranda-ese is, "I refuse to any any questions." (Of course, there are more colorful and colloquial ways of expressing the same thought, just as valid.)

[bitchkitty]

38. Holy crap. n/t

[Iowa]

39. Anyone who hasn't seen these two videos should watch them...

And send them to your kids. Everyone needs to know this.

Watch this first:
http://www.youtube.com/watch?v=i8z7NC5sgik

Then this:
http://www.youtube.com/watch?v=08fZQWjDVKE&feature=related

[OnlinePoker]

44. What if someone has taken a vow of silence and is arrested during a silent protest?

Do they have to break their vow?

[Igel]

56. No.

They can pleasantly smile and remain silent. That's their right. (The actual topic here isn't "remaining silent" but "experiencing silence" by having the police legally bound to not interrogate you any further.)

[elleng]

64. No

and NO; DON"T SAY A WORD> NOthing to be held against them.

[WinkyDink]

54. Too many people are equating the word "suspect" with "convict". Don't ANYBODY think you can't be the

former.

[Tesha]

57. Others have mentioned this, but really, really take this to heart:

IF YOU ARE EVER INVOLVED WITH THE POLICE, learn to say these
three things. If necessary, say them over and over and over again:

1. No, I DO NOT consent to your search (of me, of my car, my
possessions, whatever).

2. No, I HAVE NOTHING TO SAY TO YOU.

3. My attorney's phone number is xxx-xxxx; I INSIST THAT THEY
BE CALLED NOW.

The police are not your friends, and ANYTHING YOU SAY CAN BE
TWISTED TO BE USED AGAINST YOU LATER, so DON'T SAY ANYTHING.

Tesha

[TroglodyteScholar]

60. This is fucking ridiculous.

BUT it doesn't change what you say if you get picked up. "I'm not talking to anyone but my lawyer." This was true before this moronic decision, and it's true today.

[elleng]

65. Mere Silence Doesn’t Invoke Miranda, Justices Rule NYT

'Justice Kennedy said that people who know their rights and act “in a manner inconsistent with their exercise” may 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 police to ask follow-up questions like “Do you want to talk to us?”'

http://www.nytimes.com/2010/06/02/us/02scotus.html?hp