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To remain silent, simply speak
June 1, 2010 1:43 PM   Subscribe

In a 5-4 decision in the case of Berghuis v. Thompkins, the Supreme Court has ruled that suspects must explicitly assert their right to remain silent under the 1966 Miranda v. Arizona decision.

Analysis and further reading: SCOTUS Blog, Wall Street Journal, and the full ruling [pdf] which includes a dissenting opinion by Justice Sotomayor.

The summary from the Supreme Court ruling begins:
After advising respondent Thompkins of his rights, in full compliance with Miranda v. Arizona, 384 U. S. 436, Detective Helgert and another Michigan officer interrogated him about a shooting in which one victim died. At no point did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. He was largely silent during the 3-hour interrogation, but near the end, he answered “yes” when asked if he prayed to God to forgive him for the shooting. He moved to suppress his statements, claiming that he had invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his inculpatory statements were involuntary.
posted by 0xFCAF (156 comments total) 8 users marked this as a favorite

 
There was no need to look up how individual justices voted. But I did anyway. *sigh*
posted by Danf at 1:45 PM on June 1, 2010 [11 favorites]


This is going to be problematic for suspects who's primary language isn't English.
posted by yeloson at 1:46 PM on June 1, 2010 [30 favorites]


It's pretty clear that there are different standards for the educated and the uneducated. This is just another way of enforcing that.
posted by wierdo at 1:46 PM on June 1, 2010 [50 favorites]


What is the reasoning?
posted by uni verse at 1:48 PM on June 1, 2010


He was largely silent during the 3-hour interrogation, but near the end, he answered “yes” when asked if he prayed to God to forgive him for the shooting.

Fucking bullshit.
posted by joe lisboa at 1:49 PM on June 1, 2010 [12 favorites]


How does this work with the fact that police can legally lie to you?

"I'm explicitly invoking my right to remain silent."

"Sorry, you actually don't have a right to remain silent at this point in the proceedings. We're going to be asking you a few more questions."
posted by weston at 1:52 PM on June 1, 2010 [22 favorites]


"I'll invoke the right to remain silent"
"But you just talked. You can't remain silent if you're not currently silent"
"I mean from now on"
"You're still talking..."
"oh... shit... then... now!"
posted by qvantamon at 1:53 PM on June 1, 2010 [14 favorites]


That's just...awful.
posted by effugas at 1:54 PM on June 1, 2010


I'm not sure I see what the problem is. He wasn't silent. It sounds like he's arguing that he wants his general silence to make all his other statements inadmissible. That doesn't make too much sense to me.

This doesn't mean that the cops now have the right to somehow force people to speak, or that they are not going to tell people they have the right to remain silent.
posted by delmoi at 1:54 PM on June 1, 2010 [20 favorites]


One of the funniest law-enforcement related things I've ever seen was a young man being arrested at a demonstration and shouting at the cop at the top of his voice, I mean lung-busting, Tom Jones volume, "I'm coming quietly, constable, I'm coming quietly".

That's all I've got. Carry on.
posted by Fiasco da Gama at 1:54 PM on June 1, 2010 [1 favorite]


.
posted by Threeway Handshake at 1:55 PM on June 1, 2010 [1 favorite]


I'm honestly asking here: Do I have the right to remain silent when I am pulled over? Can I had the officer a card saying that I will not be speaking? When she says, "Do you know why I pulled you over?" do I have to answer?
posted by frecklefaerie at 1:57 PM on June 1, 2010 [2 favorites]


Like delmoi, I'm not sure what the issue is, either. They told him he had the right to remain silent, they just didn't ask him if he wanted to invoke it?
posted by roomthreeseventeen at 2:00 PM on June 1, 2010 [4 favorites]


What is the reasoning?

The cops were questioning him for a long while, and he kept quiet, he eventually effectively confessed to a murder. But he (reportedly) never said "I want a lawyer" or "I'm not telling you anything" or "Please stop questioning me" or anything like that.

The question was whether or not the long silence beforehand, in the absence of a clear invocation of the right to silence, meant that the eventual de facto confession was admissible. The court's reasoning was that it was admissible, because he had never tried to invoke his protections.
posted by ROU_Xenophobe at 2:00 PM on June 1, 2010 [2 favorites]


When she says, "Do you know why I pulled you over?" do I have to answer?

No, you do not.
posted by spikeleemajortomdickandharryconnickjrmints at 2:01 PM on June 1, 2010 [1 favorite]


Yeah, I don't see why this is a catastrophe. Although I would prefer it if the cops had to do something like say "You have the right to remain silent. Do you wish to invoke that right? We'll stop asking questions if you do", that'd be a little weird. As it is, you either stay silent through their questions, start talking, or tell them you don't want to talk.
posted by Lemurrhea at 2:02 PM on June 1, 2010


"Do you know why I pulled you over?" do I have to answer?

Well, that one specifically, yeah, you shouldn't answer. That one is to get a confession from you.

Anyhow, I'm not sure I see the problem with this change, I'd have assumed it was this way all along. Why should this guys statement be thrown out? He was explicitly informed of what his rights were, and he talked anyways.
posted by floam at 2:02 PM on June 1, 2010


With the caveat that much of my legal knowledge comes from Law & Order, even if the suspect doesn't explicitly invoke her right to remain silent, can the interrogation continue if she has explicitly asked for a lawyer?
posted by rtha at 2:02 PM on June 1, 2010


This sucks, but from a strictly legal perspective (I'm far from knowledgable here) they seem to be saying that while you have the right to remain silent, you don't have the right to compel the police to stop asking you questions. The onus of remaining silent is on the suspect.
posted by rocket88 at 2:02 PM on June 1, 2010 [1 favorite]


So to invoke your right to keep and bear arms you have to assert your right by registering your guns?
posted by peeedro at 2:03 PM on June 1, 2010 [1 favorite]


You know, I read this article, but I didn't read the full opinion and dissent of the court ... but it sounds like the court ruled correctly here, but the statement "you must explicitly assert that right" is a silly little turd on an otherwise correct ruling.

From the article, it sounds like the guy just didn't talk at first, and then finally opened his mouth after several hours of questioning. Good -- cops should question people for several hours in murder cases. Then he tried to take back what he said, to get everyone to imagine that he hadn't actually said anything, because he was being silent and -- oops -- forgot that he wanted to be silent.

You have the right to remain silent. You don't have the right to avoid all questioning. You don't have the right to take-backs.

The right to remain silent doesn't mean you get to say, "I invoke my right to remain silent. And oh by the way, I totally killed that guy. But since I said I wanted to remain silent before telling you that, you don't get to use that against me. Neener neener neener."
posted by Cool Papa Bell at 2:04 PM on June 1, 2010 [25 favorites]


This seems like the right decision. When are cops supposed to stop questioning a non-responsive person? An hour? A minute? And if they do respond, why is it a judicious act to ignore what they say? The act of questioning someone is not cruel or unusual, it is a necessary tool of law enforcement and it should not be dispensed with needlessly. Everyone still has the right to remain silent and no cop can legally force a person to speak.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 2:05 PM on June 1, 2010 [3 favorites]


"Do you know why I pulled you over?" do I have to answer?

Well, that one specifically, yeah, you shouldn't answer. That one is to get a confession from you.

Indeed. The correct answer is, "I don't know. Please tell me."

Also, do you know how fast you were going?

"I was traveling at a safe and legal speed according to the prevailing driving conditions."
posted by Cool Papa Bell at 2:06 PM on June 1, 2010 [20 favorites]


I'm not sure I see what the problem is. He wasn't silent. It sounds like he's arguing that he wants his general silence to make all his other statements inadmissible. That doesn't make too much sense to me.

That was the exact standard, until today. So he was only arguing to have his rights, as they had been defined by scotus and other precedent, upheld. Too bad, dude--guess you picked the wrong era to take your case to the Supremes (and I kinda wish you hadn't done so).

You can't seriously maintain that this doesn't give the police a lot more room to deliberately try to confuse those whom they are questioning. It tilts the playing field further in their favor, when they already have the right to question people for hours on end and say basically whatever they want, true or not. You may think that's all fine. But earlier courts, and the framers of that document in DC, knew that we should err on the side of liberty, not convictions.
posted by dust of the stars at 2:09 PM on June 1, 2010 [15 favorites]


My attorney brother says the police made no attempt to see if the guy understood his rights. That's another story, I think.
posted by roomthreeseventeen at 2:13 PM on June 1, 2010 [1 favorite]


I wonder if this means that the Miranda warning will change to something like "You have the right to remain silent. You must explicitly assert this right."

Are there other rights we have to explicitly remind people we have in order to make use of them? Doesn't that defy the nature of a "right"? I suppose people assert the 5th amendment when they plead it, but silence is a bit of a catch-22 for obvious reasons.
posted by disillusioned at 2:15 PM on June 1, 2010


rtha, that's the way it's supposed to work; you ask for a lawyer, the questioning is supposed to stop until there is a lawyer there to advise you. Period. Note the word "supposed." A lot of gray areas manage to develop despite the apparent clarity there.

I really don't have much of a problem with this ruling; I see it more as eliminating a gray area and clarifying things for the cops than taking away a right. The number one cause of people blowing their own Miranda rights is not understanding exactly what their rights are, and this doesn't change that; anyone who understood their Miranda rights would have explicitly said "I don't want to talk about it, get me a lawyer" anyway. And people who don't understand the import of that little speech will end up giving free confessions anyway.
posted by localroger at 2:15 PM on June 1, 2010


delmoi wrote: "This doesn't mean that the cops now have the right to somehow force people to speak, or that they are not going to tell people they have the right to remain silent."

So you don't think that remaining silent is invoking your right to remain silent? That makes no sense.
posted by wierdo at 2:15 PM on June 1, 2010 [1 favorite]


The reason this decision is important doesn't have that much to do with the specific facts of this case. It's that all of these criminal rights cases set police procedure, because the cops know that certain tactics will result in evidence being excluded if they step over the line. So if a suspect invokes his right to remain silent by not saying anything, but the police know that if they can just keep going with a marathon interrogation session for long enough until the suspect does say something, then they have an incentive to keep doing these kind of abusive interrogations.

This matters because the SCOTUS is setting the "right to remain silent" up as a paper right, only recognizable if educated suspects know the magic words in order to invoke those rights. The right does not exist until the invocation of those rights; the default is now for admission, unless the suspect can show that he meant to invoke the rights.

The exception has swallowed the rule.
posted by norm at 2:16 PM on June 1, 2010 [54 favorites]


But earlier courts, and the framers of that document in DC, knew that we should err on the side of liberty, not convictions.

Or how about no errs at all, and all parties aim for Justice instead? This case seems like a step towards that ideal rather than away.

Could someone explain how this is going to be used to confuse accused non-criminals into confessing to crimes they didn't commit? I just can't imagine how this would play out.
posted by Potomac Avenue at 2:16 PM on June 1, 2010


Elena Kagan supports it.
posted by Jaltcoh at 2:17 PM on June 1, 2010 [3 favorites]


I think I agree with the majority that his confession should be admissible in this case, because he wasn't actually silent; it sounds like he was (barely) participating in the interrogation throughout. I don't like the tactics of the officer and especially the ridiculous god thing (but I dislike that in many ways and it's probably another matter).

But what really bugs me is that the plain-language words of the Miranda warning are now insufficient to convey to someone in a stressful situation what their rights are and how to invoke them. It now takes some outside knowledge, which does not come from the simplest understanding of the plain words of the warning, to invoke the rights.

"You have the right to decline to answer questions, and you can invoke that right at any time by saying so" would be just fine, you just need to adjust the Miranda warning to say that. The current state of affairs, considering this case, really feels like a trick.
posted by fritley at 2:17 PM on June 1, 2010


That's a tremendous explanation, norm. Thank you.
posted by boo_radley at 2:17 PM on June 1, 2010


Why should this guys statement be thrown out? He was explicitly informed of what his rights were, and he talked anyways.

I'm not sure what judiciary minutia they were actually arguing about in this particular case, but police interrogation methods in general seem to go against the aim and intent of things like the Miranda warnings. Are they really universal rights if cops can routinely strong-arm people into giving them up? If a reporter is working on a negative story about the mayor, and the cops bring him in for a three hour discussion about how things might end up "very bad for him" if he publishes the story, and he kills the story because of that, is that freedom of the press just because he could have decided to publish the story anyway and face the consequences?
posted by burnmp3s at 2:19 PM on June 1, 2010 [3 favorites]


Once you've asserted your right to remain silent, further interrogation can only produce inadmissible evidence. It's a legitimate viewpoint that remaining silent for over an hour is clear indication that you are exercising that right, and that evidence obtained after that point should be inadmissible. The entire point of the "fruit of the poisonous tree" doctrine is that there are "take-backs" on evidence obtained in an illegal manner, otherwise there's no incentive for police to follow the laws while interrogating suspects.

I can see the other side of this (and honestly if you can only see one side of a 5-4 decision, you're not trying hard enough) that police should be allowed to question someone for some period of time while that person is clammed up, but several hours seems like too long and this is definitely one step further toward creating two systems of justice - one for people who have been fully educated about how to exercise their constitutional rights, and one for those who haven't.
posted by 0xFCAF at 2:21 PM on June 1, 2010 [20 favorites]


I'm not sure I see what the problem is. He wasn't silent. It sounds like he's arguing that he wants his general silence to make all his other statements inadmissible. That doesn't make too much sense to me.

That was the exact standard, until today.

Really? Exactly how long did you have to remain silent first to make whatever you eventually said in response to questioning invalid in court? What if he'd given more than a one-word answer and spilled the beans on the whole thing in a rambling 5 minute monologue after maintaining silence for 3 hours? Was there some existing legal threshold for determining what constitutes an acceptable silence-to-confession ratio? Do 60 minutes of silence cancel out 1 minute of voluntary confession? How many cases would have to be overturned if the court had ruled the other way? It seems to me an awful lot of police interrogations probably begin with lengthy periods during which the subjects refuse to cooperate before finally owning up to their offenses.

This decision really doesn't seem like much to get worked up over to me, so much as it is an affirmation of common sense. I'm not at all convinced there's any practical way this creates new opportunities for officials to abuse standard interrogation procedures.
posted by saulgoodman at 2:21 PM on June 1, 2010 [4 favorites]


Er... okay. This there some kind of protocol to this or is it a Cache 22 where if you say something about silent you are now no longer silent?
posted by Artw at 2:23 PM on June 1, 2010


And I hate agreeing with this court on anything.
posted by saulgoodman at 2:23 PM on June 1, 2010


The right to an attorney is another right that must be explicitly invoked, right? If you are arrested, read your Miranda rights and don't say anything about a laywer, can the cops go ahead and question you as if you've decided not to have a lawyer present? And was this always the case?
posted by mullacc at 2:25 PM on June 1, 2010 [1 favorite]


much of my legal knowledge comes from Law & Order

You need to spend some time with Frank Pembleton in the box.
posted by banshee at 2:25 PM on June 1, 2010 [12 favorites]


Could someone explain how this is going to be used to confuse accused non-criminals into confessing to crimes they didn't commit? I just can't imagine how this would play out.

The right against self-incrimination does not apply exclusively to the innocent. That said, I can imagine that police could use very long exposure interrogation tactics to wear down the resolve of a suspect who wants to invoke his 5th Amendment right against self-incrimination by remaining silent. Badgering for hours on end could certainly wear someone down.
posted by The World Famous at 2:25 PM on June 1, 2010 [1 favorite]


What if they assert their right to remain silent, then on the ride downtown say out of the blue, "I totally shot that guy"? Would that be admissible?
posted by simms2k at 2:26 PM on June 1, 2010


OK so before this, the cops would eventually stop badgering people because they knew that the initial 2 hours of silence could be construed by a court to mean they were invoking their rights, and so any evidence gathered after a certain amount (but no fixed amount) of silence *might* be thrown out? Did this actually stop officers from marathon interrogations? It doesn't seem to have, but perhaps I'm wrong.

It sounds like further legislation is called for to clarify things further. Rather than relying on Miranda to protect innocent people from police brutality, maybe it should be clear that anything more than a 4 hour police interrogation should make the evidence inadmissible just based on being a kind of torture? IANAL obv.
posted by Potomac Avenue at 2:26 PM on June 1, 2010


Potomac Avenue wrote: "Could someone explain how this is going to be used to confuse accused non-criminals into confessing to crimes they didn't commit? I just can't imagine how this would play out."

Imagine yourself as an uneducated person. You are arrested for a crime you didn't commit and interrogated for many hours. You are tired, hungry, thirsty, and need to use the bathroom. How long can you hold out if you don't know the magic words?
posted by wierdo at 2:28 PM on June 1, 2010 [3 favorites]


Also, Potomac Avenue, I would refer you to this case, where the 9th Circuit recently overturned the conviction for murder of a woman who confessed to having killed her husband, after police badgered her several years after her husband's death. While the case does not expressly hold that she did not commit the murder, the evidence, I believe, would prevent any reasonable person from concluding without a shadow of a doubt (or even a preponderance of the evidence) that her "confession" was true.

Now, the Lunbery v. Hornbeak case is not a Miranda case. It does, however, illustrate that people who "confess" after lengthy police interrogation are not necessarily doing so because they are the actual perpetrator of the crime.
posted by The World Famous at 2:30 PM on June 1, 2010 [1 favorite]


I agree with Potomac and others that there should be some kind of interrogation standards.
posted by Mister_A at 2:30 PM on June 1, 2010


Cool Papa Bell: ""Do you know why I pulled you over?" do I have to answer?

Well, that one specifically, yeah, you shouldn't answer. That one is to get a confession from you.

Indeed. The correct answer is, "I don't know. Please tell me."

Also, do you know how fast you were going?

"I was traveling at a safe and legal speed according to the prevailing driving conditions.""

But... it wasn't legal. Will I get in trouble for lying? What if I just said "I was traveling at a safe speed according to the prevailing driving conditions."?
posted by symbioid at 2:30 PM on June 1, 2010 [1 favorite]


Then he tried to take back what he said, to get everyone to imagine that he hadn't actually said anything, because he was being silent and -- oops -- forgot that he wanted to be silent.

All he said was 'yes' to a compound question (if he prayed to God for forgiveness for the shooting) after many hours of police badgering with yes/no questions. I don't have any problem with this ruling per se, but saying the wrong word after a series of rapid fire trick questions shouldn't count as a confession. Police ought to be interested in finding the truth, not gotcha-ing people into one word confessions.
posted by Pyry at 2:30 PM on June 1, 2010 [1 favorite]


I don't think being uneducated has much to do with it. A third grader could understand "Anything you say can and will be used against you in a court of law."
posted by roomthreeseventeen at 2:32 PM on June 1, 2010


"My name is ________. My address is __________. My Social Security number is ________. My attorney is __________. I would like to speak with him." Repeat ad infinitum, regardless of what the cops are currently lying to you about.
posted by BitterOldPunk at 2:34 PM on June 1, 2010 [19 favorites]


You are tired, hungry, thirsty, and need to use the bathroom. How long can you hold out if you don't know the magic words?

It doesn't matter, because what you've described is a coerced confession. If you really are innocent, and there's exculpatory evidence, and there's evidence of coercion, any public defender should be able to shred this confession in minutes. Good public defenders can make a career out of a case like this.

So, the question isn't Miranda rights, it's the quality level of free, public defense.
posted by Cool Papa Bell at 2:35 PM on June 1, 2010 [1 favorite]


Man, I remember growing up and hearing about Supreme Court cases and always being so amazed at how rights were constantly being increased and almost always individual rights against greater government organizations were strengthened and made better and I thought to myself, what a great country I live in, but now it's just always, always the opposite. Franky I'm sick of it. Citizens United, constant rulings in favor of greater police powers, when does it stop?? When will these 4 fucks, Scalia, Thomas, Roberts Alito, who vote as a monolithic block of hypocrite establishment whores fucking speak up for the individual?

Is it bad of me to wish that a sinkhole appear under their houses and relieves us of their monarchical mind fuckery?
posted by Skygazer at 2:35 PM on June 1, 2010 [10 favorites]


Elena Kagan supports it.

She also apparently supports the right of prosecutors to full-on frame people with no fear of legal repercussions.

I understand that I'm being a little inflammatory in how I state that, and that there's a need a prosecutor might have to be able to operate without being hamstrung by lawsuits. There has to be a better way to address that problem than by wide immunity that apparently applies even to framing people for murder, which I think is outside of even the most aggressive and expansive reading of prosecutorial duties.

I've also never been a litmus test kindof guy before now, but Kagan's argument is astounding enough to me I'm almost ready to start now.

Of course, that's not the only criticism of her available.

And I've yet to see a good strong defense of her history.
posted by weston at 2:35 PM on June 1, 2010 [2 favorites]


Alternatively, we could move to an all opt-in model of rights:

"Pursuant to my rights under the fifth amendment, I refuse to answer that question on the grounds it may incriminate me"
"Using my rights under Miranda, I will be remaining silent for this interrogation and request that it be ended so I may consult with counsel"
"As outlined in the 3rd Amendment, I do not consent to quartering soldiers in my home"
"I wish to exercise my 8th Amendment right to not be beaten unconscious with a nightstick"
posted by 0xFCAF at 2:37 PM on June 1, 2010 [20 favorites]


Lots of people confess to crimes they didn't commit. It happens all the time. Some ridiculously high number of people freed by the Innocence Project were there because of false confessions. I can understand the other side of this, too, and I agree that the specifics of this case make it difficult to feel much sympathy (which is itself an example of selection bias-- the SCOTUS doesn't have to grant cert on every case; they took the Miranda exception case with the worst facts for the liberal side) for the defendant.

Think big picture on these cases. Why are these cases important?


And how long will it take the writers of SVU to catch up to the fact that another reason to throw out a confession is gone? Will they actually start writing decent scripts to cover for this?
posted by norm at 2:37 PM on June 1, 2010 [2 favorites]


A third grader could understand "Anything you say can and will be used against you in a court of law."

And yet even very educated people don't seem to notice the anything, can, and will parts of that sentence.

For example, look at how many people in this thread are giving examples of things that they think one should say to the police. Didn't they understand that the things that they are suggesting can and will be used against them?
posted by The World Famous at 2:38 PM on June 1, 2010 [2 favorites]


This dovetails nicely with the SC's ruling that illegally obtained evidence is admissible in court. What cool old-fashioned legal opinions will they bring back next? My money's on cruel and unusual punishment getting an 'originalist' spin. Who's coming to the next burning at the stake? Sorry I can't make it, I'm going to the drawing and quartering.
posted by mullingitover at 2:38 PM on June 1, 2010 [3 favorites]



" My address is __________. My Social Security number is ________. My attorney is __________. I would like to speak with him." Repeat ad infinitum, regardless of what the cops are currently lying to you about.

"My name is ________. I would like to speak to an attorney" is sufficient.
posted by nestor_makhno at 2:39 PM on June 1, 2010 [10 favorites]


Could someone explain how this is going to be used to confuse accused non-criminals into confessing to crimes they didn't commit?

Long interrogations are, in large part, intended to confuse the subject into agreeing with whatever the interrogators are asserting, and people commonly confess to crimes they did not commit.
posted by ROU_Xenophobe at 2:39 PM on June 1, 2010 [4 favorites]


But... it wasn't legal. Will I get in trouble for lying? What if I just said "I was traveling at a safe speed according to the prevailing driving conditions."?

No one's going to go after you for obstruction of justice for a traffic case if there's a police witness to disagree with you. If you're really worried, say "I believe I was traveling..."

The key here is not to give away a potential defense that may prove useful later, or a potential point for the cop to let you go with a warning.

Know how fast were you going?
35.
Well, actually, it's a school zone, so it's 25. Here's your ticket.

Know how fast were you going?
I believe I was driving safely.
I think you were speeding. Here's your ticket.
See you in court!

Know how fast were you going?
I believe I was driving safely.
Well, this is a school zone. Slow the heck down.
OK, will do. Thanks officer!
posted by Cool Papa Bell at 2:41 PM on June 1, 2010 [4 favorites]


Not really related to this ruling, but I've always been confused about the "can and will be used against you" part of Miranda. Why is the "will be" part needed, and isn't it a lie a lot of the time? I imagine there's lots of stuff people say after they get arrested that are never used against them in a court of law.
posted by kmz at 2:43 PM on June 1, 2010 [1 favorite]


"My name is ________. I would like to speak to an attorney" is sufficient.

The educated suspect is not the one most in need of these rights.


This dovetails nicely with the SC's ruling that illegally obtained evidence is admissible in court.

There's been an 'honest mistake' exception to the exclusionary rule for decades. That doesn't make this any more ridiculous, or less an example of the exceptions swallowing the rule. That's the way the Rehnquist and Roberts (and frankly, the Burger, but not as blatantly) courts have worked. You don't overturn the landmark cases that guarantee individual rights, you just create so many exceptions to them that their protections are functionally meaningless.
posted by norm at 2:44 PM on June 1, 2010 [2 favorites]


It's a legitimate viewpoint that remaining silent for over an hour is clear indication that you are exercising that right, and that evidence obtained after that point should be inadmissible.

Which of course raises the question, when is the trip point? Sixty minutes? Forty five? Fifteen? Five? In all cases? Who decides?

Also- any studies out there on how far ignorance of Miranda extends in the US population? I mean to say, the speech seems at least as familiar as the pledge of allegiance in our crime tv and movie culture. (Not that that means our stupider neighbors would necessarily understand what it means, of course, but still, I'm curious.)
posted by IndigoJones at 2:45 PM on June 1, 2010 [1 favorite]


I imagine there's lots of stuff people say after they get arrested that are never used against them in a court of law.

Whenever the prosecution enters into evidence the defendant's statements made in custody, that constitutes using everything the person said after they were arrested against them in a court of law.
posted by The World Famous at 2:46 PM on June 1, 2010


If the minority opinion had won the day, would the murderer have been set free?

I guess I don't see the injustice of when a murderer admits to a murder and gets convicted.
posted by three blind mice at 2:47 PM on June 1, 2010


It's a legitimate viewpoint that remaining silent for over an hour is clear indication that you are exercising that right,

Then doesn't it logically follow that speaking after that silent hour is a clear indication that you are no longer exercising that right?
posted by The World Famous at 2:47 PM on June 1, 2010


So you don't think that remaining silent is invoking your right to remain silent? That makes no sense.
He wasn't silent. He was mostly silent. But what difference does that make? I think everyone understands the "right to remain silent" means you can either 1) Keep your mouth shut or 2) not answer any particular question. I don't see that being infringed here.

I understand that the precedent is changing here, but this is only going to affect defendants to dumb to keep their mouths entirely shut.

Of course there's also the serious issue of false confession.
She [Elena Kagan] also apparently supports the right of prosecutors to full-on frame people with no fear of legal repercussions.
Well, the argument Kagen supporters would make is that none of the arguments she makes before the court are her own, they're the opinion of the Obama administration, for whom she works as SG. I think there's a fair amount of B.S. in that, though.
posted by delmoi at 2:48 PM on June 1, 2010 [1 favorite]


posted by rtha even if the suspect doesn't explicitly invoke her right to remain silent, can the interrogation continue if she has explicitly asked for a lawyer?

Before this ruling, no. Once someone has asked for his or her lawyer, the interrogation must stop and access to the lawyer must be granted. Now, police are supposed to observe that law, but as your old pal Matt can tell you from firsthand experience, cops don't hear you assert your rights until you've asserted them nine or ten times:

Hi, we'd like to talk to you. May we come in?
No. What is this regarding?
We'd like to ask you a few questions about [incident]
I'm not talking to you without my lawyer present.
Sure, okay. We just need to ask you a few questions.
I'm not talking to you without my lawyer present.
All right. This will just take a minute. We just need to fill out a report.
I'm not talking to you without my lawyer present.
Okay, sure. We just want to ask you a few questions for our report.
I'm not talking to you without my lawyer present.

[Repeat five more times. Increase volume as needed.]
posted by mattdidthat at 2:48 PM on June 1, 2010 [7 favorites]


> You need to spend some time with Frank Pembleton in the box.

You know, it's funny you should bring that up, because when I saw the news of this decision online earlier today the first thing I thought about was the episode where the various detectives talk to the camera and basically tell you to shut the hell up if you're being interrogated. I'm going to go try to find that clip.
posted by rtha at 2:49 PM on June 1, 2010 [1 favorite]


I guess I don't see the injustice of when a murderer admits to a murder and gets convicted.

There was no murderer in the interrogation room; only an individual with specific inalienable rights. And no one was convicted in the interrogation room.

Moreover, read the Lunbury case that I linked above and see if you still think that everyone convicted after admitting to a murder is a murderer who was justly convicted.
posted by The World Famous at 2:49 PM on June 1, 2010 [10 favorites]


When silence is outlawed, only the outlaws will have silence.

Sweet, peaceful silence.
posted by blue_beetle at 2:53 PM on June 1, 2010 [1 favorite]


http://www.metafilter.com/72811/Dont-talk-to-the-police
posted by mattdidthat at 2:53 PM on June 1, 2010 [1 favorite]


I guess I don't see the injustice of when a murderer admits to a murder and gets convicted.

That's where you get into the whole "I'd rather a guilty person go free than an innocent person end up behind bars".

The ruling has the power to affect more than just this person.
posted by inigo2 at 2:57 PM on June 1, 2010 [1 favorite]


Mister_A: "I agree with Potomac and others that there should be some kind of interrogation standards."

Kinda like standards that say Tasers are an alternative to lethal force? Those kinda standards?
posted by symbioid at 2:58 PM on June 1, 2010 [1 favorite]


Er... okay. This there some kind of protocol to this or is it a Cache 22 where if you say something about silent you are now no longer silent?

It seems to me something in the nature of a logic puzzle. "Also, you will be provided wth either an attorney who always tells the truth or an attorney who always lies, and without knowing which it is you have you may ask only one question. What do you ask the attorney?"

I foresee this as being crucial in the upcoming United States v. Farmer, which deals with a wolf, a goat, and a bag of grain being transported across a river.
posted by ricochet biscuit at 2:59 PM on June 1, 2010 [13 favorites]


As long as it;s not the one with the doors and the tigers, I fucking hate that one.
posted by Artw at 3:01 PM on June 1, 2010 [1 favorite]


A lot of the reactions to this ruling sound really knee-jerk.

It answers the legal question: After you are told that you have the right to remain silent, and you do not remain silent, what effect?

Now you have your answer: If you do not remain silent, anything you say can and will be used against you in a court of law.

Wait - haven't I heard that before? Oh yeah, right after I was told "You have a right to remain silent," I was then told "Anything you say can and will be used against you in a court of law."

I don't think our rights have been abridged in accordance to the level of outrage being expressed.
posted by jabberjaw at 3:03 PM on June 1, 2010 [7 favorites]


In a future ruling, suspects are not allowed redress from violent police actions if they do not call "no hitsies." Flinching, however, is still admission of guilt.

Suspects who have guessed today's magic word may also enjoy this right, if they are able to properly use the word in a sentence (new and different each time). However, when 14 days have passed since the Judge's secret wink, officers may give the suspect purple nurples.
posted by fleacircus at 3:04 PM on June 1, 2010 [13 favorites]


Coupla Points overlooked in the discussion here (lifted from the SCOTUSBlog link):

1) The appellant (Thompkins) refused to sign the form indicating he had heard and understood the Miranda statement at the outset of the interrogation and it is unclear if he confirmed he had heard and understood the Miranda statement verbally.

Oughtn't the authorities have confirmed, one way or the other, what Mr Thompkins meant to do with his rights?

2) The majority also made it easier for suspects to waive Miranda rights they have claimed; if, during questioning the suspect makes a damning statement, the utterance itself constitutes the waiver. More formal procedures, such as signed forms or clear verbal assertions are not necessary.

I can kinda sorta get behind the part of the ruling everybody's focused on -- that a suspect has the burden to assert his rights. But not the second. The burden should be on the authorities to demonstrate that the suspect unequivocally renounced those rights. Anything short of that is asking for abuse.
posted by notyou at 3:08 PM on June 1, 2010 [5 favorites]


The conservative wing of the court acts like they are smoking crack but they actually have a very coherent (if unspoken) judicial philosophy when it comes to criminal matters: the Police and Prosecutor declare a person to be a criminal, and the purpose of the Court is to affirm the criminal's guilt.

The criminal's defense is seen, at best, as a quaint but unnecessary Anglo-Saxon tradition or, at worst, as a pointless obstacle to justice (since guilt has already been established by the Police) -- an obstacle which must be overcome through close cooperation between Police, Prosecutor and Court.

It all makes sense when you see it through their eyes.
posted by Avenger at 3:09 PM on June 1, 2010 [20 favorites]


Metafilter: a Cache 22 where if you say something about silent you are now no longer silent
posted by (Arsenio) Hall and (Warren) Oates at 3:10 PM on June 1, 2010


Flinching, however, is still admission of guilt.

Or a crime of the "contempt of cop" kind in and of itself, as shown in Douchebag Vs Watts
posted by Artw at 3:13 PM on June 1, 2010


Isn't there a name for the number of guilty people you'd rather go free than see an innocent person convicted? I seem to recall that this ratio was supposed to be in the neighborhood of 10:1, but of course it'd vary from person to person depending on their value system.

I'd like to see this metric advertised loudly with each person going through the confirmation process to become a SC justice, if for nothing more than the irony of pro-lifers demand that the ratio be < 1.
posted by mullingitover at 3:13 PM on June 1, 2010


The detectives of Homicide: Life on the Street share their thoughts on suspects rights.
posted by never used baby shoes at 3:15 PM on June 1, 2010 [14 favorites]


Well, in Canada, you can be questioned even after you assert your right to silence, and we're hardly living in a police state. If you want to assert your right to remain silent, you simply have to remain silent, even under long, hard police questioning. This is why the best thing to do is always to get in touch with a lawyer.
posted by Dasein at 3:25 PM on June 1, 2010 [2 favorites]


...
posted by quin at 3:28 PM on June 1, 2010


is it a Catch 22 where if you say something about silent you are now no longer silent?

No, at no point are you compelled to speak, regardless of what you said or didn't say beforehand. You're only waiving your right to to remain silent at the particular moment you're speaking- you can shut up at any time even if you started talking previously.
posted by spaltavian at 3:29 PM on June 1, 2010


I'm on a limited battery life right now so don't have time to read all comments, if this is just a repeat forgive me please.

I am all for removing gray areas of the law so that expectations are clear in as many cases as possible. On the face of it, it seems a reasonable ruling... or at least a ruling I can understand. What I wish would now happen is Miranda warning would be amended to include a statement that informs the arrested that they must verbally assert those rights, and it must be given in a manner that the arrested can understand.. in Spanish, by sign language, whatever.
posted by edgeways at 3:33 PM on June 1, 2010


Oh, those wacky SCOTUSians - they're always on the lookout for opportunities to give the rest of us a good belly laugh. Or, perhaps, the chance to weep for the slow eroding of what we thought were our rights.

I confess, I get the two options mixed up myself sometimes.
posted by HannoverFist at 3:34 PM on June 1, 2010


I'm not talking to you without my lawyer present.
posted by mattdidthat

Epony-incriminating?
posted by joe lisboa at 3:37 PM on June 1, 2010 [1 favorite]


It seems as though some of the responders here feel that coolly and calmly following the logic of a series of statements you've never heard before in the MIDDLE OF BEING INTERROGATED BY THE FUCKING POLICE is something anyone can do.

I agree that this means that the Miranda warning needs to be revised to include:

"You have the right to remain silent. You must tell us if you want to exercise this right."

It also means that police must be required to desist in questioning a subject who has asserted that right, because badgering someone into forfeiting a right is the opposite of recognizing and respecting that right.

In that case, the ruling would work against investigators and prosecutors and the unholy quintet of reactionary justices would probably rescind their decision.
posted by Mental Wimp at 3:38 PM on June 1, 2010 [1 favorite]


Did you pray to God? for forgiveness for the shooting
posted by ArgentCorvid at 3:46 PM on June 1, 2010 [6 favorites]


This sucks, but from a strictly legal perspective (I'm far from knowledgable here) they seem to be saying that while you have the right to remain silent, you don't have the right to compel the police to stop asking you questions. The onus of remaining silent is on the suspect.
Of course you can compel the police to stop asking you questions. You have to do more than just sit there looking surly, though. You have to say "I want a lawyer, and I'm not answering any questions until he gets here" or something to that effect. At that point, the police are supposed to stop interrogating you. Do they always? No, but confessions actually do get supressed on the grounds that they didn't.

The whole "haha you have to speakin order to be silent!" complaint is a red herring, because the right was always that you didn't have to incriminate yourself, but of course if that was the warning, people would be complaining that nobody knew what that meant.
posted by planet at 3:57 PM on June 1, 2010 [4 favorites]


there's an easy solution to these kind of religious questions: make sure everyone has prompt access to representation by a competent attorney.

It's not like the CEO of Massey Energy had to sit for three hours with a bunch of cops until he admitted that yes, he did decide that killing 29 people was worth it to make the quarterly earnings projections on Wall Street.
posted by ennui.bz at 4:02 PM on June 1, 2010


I tell people to remain silent all the time just to make sure everybody knows.
posted by I Foody at 4:05 PM on June 1, 2010


The part that's so absurd is that everyone knows that as soon as your attorney showed up she'd tell you to shut the hell up. The "right to have an attorney present" has to be pretty meaningless for this situation to matter. If an attorney was present, no interrogation would happen.
posted by a robot made out of meat at 4:12 PM on June 1, 2010


I understand that the precedent is changing here, but this is only going to affect defendants to dumb to keep their mouths entirely shut.

Aside from the fact that a rule that affects unintelligent or uneducated criminal defendants more than others is inherently unfair, most people aren't going to be able to keep their mouths shut under three hours of police interrogation. Police are experts at making people talk, which is why, even with Miranda tons of people confess, even though we explicitly tell them they don't have to. This group affected by this decision is not small, it's big, and more than likely it includes plenty of people you wouldn't consider dumb.
posted by Bulgaroktonos at 4:15 PM on June 1, 2010 [7 favorites]


Could someone explain how this is going to be used to confuse accused non-criminals into confessing to crimes they didn't commit? I just can't imagine how this would play out.
posted by Potomac Avenue at 5:16 PM on June 1 [+] [!]

Yes, any number of cases involving lengthy interrogrations and young or otherwise vulnerable suspects. The Peter Reilly case in Connecticut ("A Death in Canaan") is just one of many where the cops succeeded in talking someone into a false confession.
posted by etaoin at 4:16 PM on June 1, 2010 [2 favorites]


"My name is ________. I would like to speak to an attorney" is sufficient.

Is this true? I'm not sure. According to the SC ruling in Hiibel v. Sixth Judicial District the police have the right to demand that you identify yourself. It is my understanding, however, that they never specified what is the full sets of necessary and sufficient information that can be demanded in order to have you identify yourself - please correct me if I'm wrong. I thought that this is what the Stevens pointed out in his dissent:

"Justice Stevens opined that the Court’s precedent required it to strike down Nevada’s stop-and-identify law. Under the Court's Terry jurisprudence, a suspect has always had the right to refuse to answer questions put to him by police officers during a Terry stop. And the Fifth Amendment privilege had always attached during custodial interrogations because information extorted by the police during such interrogations is unavoidably testimonial. Why else would the police ask for a person’s name, if not to determine whether that person was either wanted for committing a crime or directly suspected of committing a crime? “The officer in this case told [Hiibel] that he was conducting an investigation and needed to see some identification. As the target of that investigation, [Hiibel], in my view, acted well within his rights when he opted to stand mute. Accordingly, I respectfully dissent.”

Basically doesn't that mean they can continue asking questions under the guise of making you identify yourself? Breyer who also dissented seems to point to some concerns when he makes the slippery slope concern argument:

"Justice Breyer also expressed a “slippery-slope” concern that the majority’s opinion would lead to allowing the police to ask follow-up questions, such as what the person’s license number is, or where a person lives, without running afoul of constitutional protections."

So just how does all this shake out? Perhaps it shakes out to this:

"My name is ________. I would like to speak to an attorney" is sufficient.

NOT being sufficient and liable to getting slammed with an "obstruction of justice" charge. BWDIK, IANAL.
posted by VikingSword at 4:22 PM on June 1, 2010


How is this any different from the way the right to an attorney is handled? You are advised of your right to an attorney, but you don't automatically get one before questioning. You have to ask for it. If you answer questions without asking for an attorney, your answers won't be inadmissible because there wasn't an attorney present.

It sounds to me like this actually would open up things a little. If you want to invoke your right to remain silent, you can either keep your mouth shut for the duration of questioning (as has been your only option up till now), or you can tell the police that you're invoking your right and (if the NYT article is correct) they have to stop questioning you.

You have the right not to self-incriminate, but that doesn't mean you aren't allowed to self-incriminate. The guy in this case wasn't silent for three hours - he just didn't incriminate himself for three hours. But then he did. He then claimed that he was "uncommunicative." But he wasn't. He wasn't communicating enthusiastically - but he was communicating. And even if he had been uncommunicative up until the 'confession' - he certainly communicated something when he answered the question. I don't see a problem with this ruling.
posted by Dojie at 4:27 PM on June 1, 2010 [1 favorite]


...one of the officers asked him if he prayed for forgiveness for ''shooting that boy down,'' Thompkins said, ''Yes.''


I can't see any reason to believe having a lawyer present would have stopped this guy answering "yes" to this question. Unless his lawyer had taped this simpleton's mouth shut at the start of the interview.
posted by selton at 4:29 PM on June 1, 2010


If the minority opinion had won the day, would the murderer have been set free?

I guess I don't see the injustice of when a murderer admits to a murder and gets convicted.

Exactly. Murders make the worst case law of all. No appellate court wants to free someone who is guilty of murder. The only times you will see an appellate court rule in favor of defendant on a point that might reverse the conviction will be a case where the appellate court thinks the defendant is actually not guilty.

Drug cases make pretty good case law. Theft-related cases make good case law. But murders -- because of the fear of turning a murderer loose -- make the worst case law of all. Sex offense cases also can make horrible case law for similar reasons.
posted by flarbuse at 4:31 PM on June 1, 2010 [1 favorite]


Basically doesn't that mean they can continue asking questions under the guise of making you identify yourself?
Possibly. But as I understand Hiibel/Terry, a proper Terry stop is non-custodial, so it doesn't trigger Miranda rights. Here, Thompkins was unambiguously arrested (i.e., the setting was custodial), so I'm not sure Terry slippery slopes are really applicable. That's not to say there isn't a general problem with Terry stops being expanded, but I don't see it here.
posted by planet at 4:33 PM on June 1, 2010


I can't see any reason to believe having a lawyer present would have stopped this guy answering "yes" to this question.

You've never seen a movie where the lawyer doesn't jump up and shout, "Don't answer that!" Admittedly, that's the movie version, but it happens all the time.

Moreover, in a courtroom or deposition situation, you can move to strike the answer from the record.
posted by Cool Papa Bell at 4:39 PM on June 1, 2010


The language of Miranda warnings really needs to be expanded and made a lot more clear. Repetitions of "Do you understand this right as I have read it to you?" and a conclusory "Do you wish to exercise your right to remain silent? Do you want an attorney?" to make absolutely clear.

That said? This opinion is not the big deal that people seem to think it is. It's a clarification of a gray area, and a tool in the defense attorney's arsenal to say "My client explicitly invoked his right to remain silent at minute 1 of the interrogation, so the three hours of further interrogation and the confession at minute 181 should be excluded from evidence."
posted by kafziel at 4:40 PM on June 1, 2010 [1 favorite]


I can't see any reason to believe having a lawyer present would have stopped this guy answering "yes" to this question. Unless his lawyer had taped this simpleton's mouth shut at the start of the interview.

What lawyer would let him participate in an interview to begin with, much less a three hour one? Talking to the police almost never helps you, and his lawyer would know that.
posted by Bulgaroktonos at 4:44 PM on June 1, 2010


The language of Miranda warnings really needs to be expanded and made a lot more clear. Repetitions of "Do you understand this right as I have read it to you?" and a conclusory "Do you wish to exercise your right to remain silent? Do you want an attorney?" to make absolutely clear.
I'm not sure about this. The focus needs to be on preventing (or excluding) false confessions. If a guilty person confesses, as long as the confession wasn't solicited under clearly abusive circumstances, there seems little pragmatic reason not to use it.

Too often, it seems to me, proposed Miranda reforms seem to be focused on discouraging anyone from ever confessing. I don't see value in this, unless one believes that the confession process is so broken that it cannot possibly be made reliable -- in which case, this should be made a stated assumption.
posted by planet at 4:47 PM on June 1, 2010 [1 favorite]


posted by VikingSword liable to getting slammed with an "obstruction of justice" charge.

What? No.
posted by mattdidthat at 4:48 PM on June 1, 2010


The focus needs to be on preventing (or excluding) false confessions.

The focus needs to be on preserving the Constitutional right against self-incrimination by creating a legal regime that prevents the police from eroding that right through deceptive or manipulative tactics.
posted by The World Famous at 4:57 PM on June 1, 2010 [4 favorites]


I'm nominating "the confession process" as euphemism for "interrogation" for the 2010 Orwell Award for Excellence in Doublespeak.
posted by 0xFCAF at 4:59 PM on June 1, 2010 [16 favorites]


Query to anyone who's dealt with defendants and suspects:

What happens if people refuse to say that they understand their rights?

I mean, I can recite the you-have-the-right... stuff, but I know that there's all sorts of caveats and exclusions and clarifications, so, not being a trained lawyer, I'm sincerely a bit fuzzy about what my rights actually are.

So what happens if I reply "No." when I'm asked if I understand those rights? Leaving aside extralegal consequences like "I get beaten."
posted by ROU_Xenophobe at 5:00 PM on June 1, 2010 [1 favorite]


The focus needs to be on preserving the Constitutional right against self-incrimination by creating a legal regime that prevents the police from eroding that right through deceptive or manipulative tactics.
Why? Why does it matter if guilty people incriminate themselves, as long as the police stay on the right side of some clear standard of abusiveness? Why is the right against self incrimination considered so sacrosanct that any actual instance of self incrimination is seemingly viewed as an illustration of a need to tighten the rules?
I'm nominating "the confession process" as euphemism for "interrogation" for the 2010 Orwell Award for Excellence in Doublespeak.
I didn't say "interrogation" because that's not what I meant. I meant the entirety of the way confessions are acquired and used in the criminal justice system.
posted by planet at 5:08 PM on June 1, 2010


How is this any different from the way the right to an attorney is handled? You are advised of your right to an attorney, but you don't automatically get one before questioning. You have to ask for it.

This is what I was wondering. On first pass, this new process for "invoking the right to be silent" seems to parallel the process for invoking the right to have an attorney. But the problem with that comparison is the interpretation of a suspect's non-response.

If a suspect doesn't express a desire to have an attorney and instead says nothing at all, that lack of a response can't reasonably be interpreted as a desire to have an attorney.

However, if a suspect doesn't express a desire to remain silent and instead says nothing at all, that lack of a response can reasonably be interpreted as a desire to remain silent.

The problem with the latter scenario is that there is a lot of grey area around what really constitutes a lack of a response.

In summary: I'm confused about this.
posted by mullacc at 5:15 PM on June 1, 2010


So what happens if I reply "No." when I'm asked if I understand those rights?

Well, you're not going to go free, for one thing. "Dammit, Larry. He found the hole in Miranda! That's the third time this week. Fuck. Just go ahead and uncuff him, I guess."

No, the arrest and arraignment process will still go forward, with your claim being noted. At some point, a judge will just make a determination as to what's admissible and what isn't, and whether police and prosecutors have made reasonable efforts to inform you of your rights, and you can enter various motions which can be considered.

Think about children, or people that are literally insane or mentally disabled -- people that literally cannot understand their rights. Legal processes exist for them, too.
posted by Cool Papa Bell at 5:18 PM on June 1, 2010 [2 favorites]


Just FYI - Miranda, the Fifth Amendment, and the Sixth Amendment all have different bodies of case law. Invoking the Fifth Amendment is rarely going to be the most helpful thing you can do.

My general understanding, somewhat simplified, is that it works something like this:
"I am exercising my right to remain silent." ==> The police can ask you questions again in the future.
"I want my/a lawyer before I say anything." ==> Interrogations must cease, permanently, until counsel is present.
posted by thesmophoron at 5:23 PM on June 1, 2010


"Why? Why does it matter if guilty people incriminate themselves, as long as the police stay on the right side of some clear standard of abusiveness?"

The problem occurs when innocent people incriminate themselves. Examples of this happening are all too common as has been pointed out in this thread.
posted by Mitheral at 5:25 PM on June 1, 2010 [1 favorite]


The problem occurs when innocent people incriminate themselves. Examples of this happening are all too common as has been pointed out in this thread.
Right. And that's why I said that the focus should be on reliability.
posted by planet at 5:29 PM on June 1, 2010


"other than these words I am uttering now you will hear nothing else from me"
posted by robbyrobs at 5:33 PM on June 1, 2010


Look, I'm a lowly analyst type, but I guarantee you, I keep a CFO on the phone long enough he's going to give it all up like the girl in high school with the bad rep in the back of your dad's station wagon.

The results of information asymmetry are a fundamental rule of semiotics and a much more practical rule of thumb when dealing with inequitable power situations. You really think that you, Mr/Ms educated person is not going to say something beyond, "I want my lawyer" when you're about to shit your pants, you'd sell your own brother down the river for a drink of water and they're talking about taking your kids away? That is, in fact, how they roll. LE's only job is to get enough evidence to prosecute.

I may be extreme in this, but I take it as axiomatic that any SC ruling that further erodes the rights of citizens accused of crimes is inherently bad. You picture yourself surrounded by large, armed men with - at the moment - absolute power over your most basic bodily functions and health, and tell me you disagree.
posted by digitalprimate at 5:45 PM on June 1, 2010 [14 favorites]


Over 20 years ago I was interrogated about a theft from an eatery I had recently quit.

It went on for around 4 hours with a lie detector test, and repeated badgering to get me to "confess." I hadn't done the crime, so I cooperated willingly. As the hours dragged on I realized the cops didn't CARE who did it, they just thought I was the easiest mark to pin the theft on.

I was allowed a phone call, which was to my parents to hire a lawyer.

I was told I failed the lie detector test (I don't know if I did or not, it's just what I was told.)

When I wouldn't confess, and after hours of questioning, I said "no more questions without my lawyer present, are you gonna arrest me or what?"

They let me go, having no evidence against me except for the fact that I no longer worked at said establishment.

Cops do NOT act in good faith, they just want to close the books, this ruling makes it potentially easier for them to trick a person into incriminating himself even if they weren't involved in any way whatsoever.

The Riley Fox case is a good example of lazy police work as well.

The father was zeroed in on by the cops and spent 8 months in jail because after hours of questioning he "confessed" to the crime.

It turns out and DNA testing has proven that Scott Eby did it, not the father.

Could someone explain how this is going to be used to confuse accused non-criminals into confessing to crimes they didn't commit?

When cooperating with the cops, there is no such thing as a "hypothetical." A statement like "OK officers let's say I did it, why would I want to kill my daughter?" Becomes "I did it."

Like a bad Fox News edit.
posted by Max Power at 5:45 PM on June 1, 2010 [20 favorites]


I'm not a criminal attorney/lawyer or anything, but I love Harry Bosch novels. From my uneducated opinion:

You are not Mirandized unless you're arrested. The police can question you, or bring you in for questioning, without arresting you. Any statements you make are admissible under these circumstances. This is a tactic used to get you to give alibis, for instance. If you make conflicting statements, or they ask you a bunch of questions out of order, you may incriminate yourself.

If you choose not to cooperate, and are not under arrest, they have to let you go. I'm sure there are ways around this, as well. Not talking to cops is often your best defense, even if you are innocent.

If you are arrested, the moment you "lawyer up," is the moment that all the tactics the police can legally use against you change. If you don't specify that you want to remain silent, then this ruling significantly extends the tactics that can be used against you. A police officer or detective is trying to make a case against you, but they won't tell you this. They''ll be your friend. They'll let you know that they're asking the questions to eliminate evidence against you, they'll lie about their intentions. If you respond to them at all, this ruling gives them a lot more leeway to gather evidence.

In this particular case, after several hours of questioning, perhaps the suspect didn't hear the question right. Maybe he answered before thinking about it. I don't have transcripts, but people answer the question, "How many animals of each species did Moses bring on the Ark?" incorrectly all the time...maybe he was responding to the "praying to god" part, maybe he prayed that he would stop being badgered about committing a crime he didn't commit. Regardless, his right to remain silent was not respected by the police...even if it is a game, even if he was guilty as hell...this is a tough ruling for anyone not aware of or not comprehending their rights.

This ruling will definitely open up some of the tactics used by police, and it basically leads in the direction of "You do NOT have the right to remain silent, unless you specifically invoke that right." Sink or swim. If you are the type that thinks of a person as guilty until presumed innocent, I suppose it's a step in the right direction for you...
posted by Chuffy at 5:48 PM on June 1, 2010 [3 favorites]


Why? Why does it matter if guilty people incriminate themselves, as long as the police stay on the right side of some clear standard of abusiveness?

Because you will never know whether a person coerced into incriminating themself was guilty or not if their conviction is based on the coerced confession.
posted by The World Famous at 5:49 PM on June 1, 2010 [8 favorites]


I could be wrong about the conditions of Miranda...you may get Mirandized even if you're not arrested, so that questioning you about a case is admissible.
posted by Chuffy at 5:54 PM on June 1, 2010


You are not Mirandized unless you're arrested.

For Miranda to apply, you need two elements: custody and interrogation. Custody can be present absent a formal arrest, where your liberty is restrained in a manner similar to a formal arrest. Similarly, interrogation can occur outside the context of formal questioning, where the police should know that what they're doing is reasonably likely to elicit an incriminating response.
posted by Bulgaroktonos at 5:58 PM on June 1, 2010 [1 favorite]


Great discussion, MeFites. A thing I forgot to say earlier: I just believe the playing field should be tilted toward making the police do, you know, police work, rather than making it easier for them to coerce confessions--which as many have proven with cites above, is much easier than you'd like to believe. With the technology available, it should be easier than ever to prove who's guilty with resorting to cases based on nothing but confessions, or nothing but eyewitness accounts (also famously unreliable). How about processing all those untouched rape kits we keep hearing about, for example?
posted by dust of the stars at 6:03 PM on June 1, 2010 [1 favorite]


Why? Why does it matter if guilty people incriminate themselves, as long as the police stay on the right side of some clear standard of abusiveness?

Well, right off the bat, because that "as long as" constitutes an "if" so big that it has its own gravity.
posted by spaltavian at 6:21 PM on June 1, 2010 [3 favorites]


I was told I failed the lie detector test (I don't know if I did or not, it's just what I was told.)

A polygraph "test" is basically just an interrogation with a magic box that they use to intimidate the suspect. One study (which I would link to if I could find it) involved telling the person administering the test that there was one main suspect among people being tested about a theft (who was in fact randomly selected), and the randomly selected main suspects failed at much higher rates than the rest. Basically if the police think you are guilty (which they probably do if they are asking you to take a polygraph) then you are not going to pass the test.
posted by burnmp3s at 6:57 PM on June 1, 2010


A book I read awhile back advised that, in the questionable "not detention but you're in dention" condition, that you Mirandarize yourself by announcing your own awareness of your Miranda rights. I wonder what the MeFi lawyers think of that idea?
posted by localroger at 7:10 PM on June 1, 2010


burnmp3s, yeah I can see that now. At the time all the questions were cadenced very well too, requiring yes of no answers.

For example, (nice voice) "Your name is Bill?" "You live at 231 Baker Street?"

Interrupted by "YOU TOOK THE MONEY!" And the like all designed to relax you than spook the hell out of you.

From a soft, this is all routine voice to SHOUTING at you in seconds, then back to hey relax, we're just trying to get to the truth.

Turns out I had been implicated by another employee ( guess who did it), and the lawyer my folks hired did a very good job of keeping track of the case even though I was never bothered by the cops again.
posted by Max Power at 7:17 PM on June 1, 2010


Oops, sorry if I derailed there...
posted by Max Power at 7:17 PM on June 1, 2010


'Cache 22' totally sounds like the punchline to an XKCD strip.
posted by Sebmojo at 7:46 PM on June 1, 2010 [6 favorites]



"Do you know why I pulled you over?" do I have to answer?


I'm not a lawyer, this is not legal advice. I believe you have an ethical and moral responsibility to at least, shrug.
posted by furiousxgeorge at 8:27 PM on June 1, 2010


furiousxgeorge wrote: "I'm not a lawyer, this is not legal advice. I believe you have an ethical and moral responsibility to at least, shrug."

I've never had them ask me if I know why they stopped me. They always ask if I know how fast I was going. I always say the same thing: "about the speed limit." I should probably change it to say "at or below the speed limit."

I used to say "about ," but then I realized I was opening myself up to inadvertently admitting guilt in situations where I was mistaken as to what the speed limit is in a particular location.
posted by wierdo at 8:48 PM on June 1, 2010


"Do you know how fast you were going?"

I like the answer, "How fast was I going?" so as not to admit any knowledge or ignorance. Also I'd make sure the officer is comfortable by having my hands near the top of the wheel where they're visible, and having the window cracked an inch or so before they get there. If it's night leave the internal light on.

Not that I really get pulled over, like, ever.
posted by closetphilosopher at 10:19 PM on June 1, 2010


This is important.
To add to what norm said about police procedure and the default - there are practical street effects to consider, but that goes both ways. And all this cop hate and outrage is sort of misplaced.

Lemme 'splain:
No, the police aren't your friend. It's not their job to be. They're adversarial, yes. By design.
Consider the nature of that relationship. They don't know you're not the bad guy. Perhaps, if they're lousy at their jobs, they don't care. But that doesn't much matter either.
What matters (to them) is what makes them successful at their jobs.
There are the power trippers and sadists, but they tend to screw up the job unless they're very smart. So let's just take all the sloppy, abusive, tase happy cops off the table because they have zero professionalism in the first place.

So - remaining silent shouldn't be contingent on the amount of time the police can hold you. Sentiments to that effect have been expressed above. But I don't think it's exactly clear how long this is.
In some jurisdictions you can be held for up to 72 hours before you have to go before a judge. Police can't hold you too long without evidence and probable cause and the seriousness of the circumstances. Traffic ticket - no, they're not going to hold you three days.
Murder? Yeah, you're not walking out the door any time soon.
Some places, 48 hours before even filing charges. And you're still being held pending further investigation.

I know we're all major league bad asses, but it might be a little tough on folks who aren't completely sharp or might be a little intimidated being in a small windowless room for that kind of time to stay completely silent for a few days though interrogation.

On top of this (and I think it's been mentioned upthread - Stansbury v. California) there's a difference between being interrogated in custody and non-custodial interrogation. You don't have to be advised of your rights if - hey, we're just talkin.' But if you mention any details of the case, suddenly you're a suspect (maybe) and you're (maybe) in custody (the whole whether a "reasonable person" in your position would now think they're under arrest).
But of course - since you've already talked, what you've said can and will, yadda yadda. It's more convoluted than that.
As an example - that gray sort of 'custody' thing applies to traffic stops - you're not free to go, but you're not under arrest. So you don't have to be advised of your rights. Hence the "Know how fast you were going?" routine.

Suffice it to say - tools exist to conduct decent individual interrogations without this ruling. Better, worse now that it's there - not a topic I'm going to pick up just yet.

(Before I go further, I'll grant that it's logical to assume the police would continue, because - what? they're going to stop if they guy hasn't said "I won't talk. I want my lawyer" specifically. Because why wouldn't they? It's their job.
But I would be more sympathetic to this kind of default setting for a suspect's rights if the justice system also assumed someone wants their lawyer present during questioning. Because it's similarly logical. I mean - who wouldn't? Who wants to be convicted of a crime?)

We know that this will have an effect on procedure. What about the reverse? What could be the pressure from the other side, from the law enforcement environment to perhaps effect the justices thinking on this?

Well, a lot of cities and towns have been cutting police officers.

Just a bit ago in my backyard a combined multijurisdictional taskforce took down a coke distribution network (seized 8 kilos of coke, loads of meth and other drugs and guns, quarter million in cash). This took coordination, manpower, legwork, time and money.

Exactly what most police departments are missing.

It takes work to get evidence on someone. It's more work to get someone to finger someone else. Stands to reason though they're more likely guilty if 10 people point to someone and say 'he's the guy, I saw him.' or 'yeah, I'm a coke dealer and I work with that guy' than if one guy cracks after three hours and agrees to a passive voiced question.

This will result in more lazy police work. But at a time when many departments don't have the money for overtime or the talent to pull off serious investigations, probably because if you have a decent education you can make more money in another field - and hell, public service is for idiots anyway, isn't it?

That certainly doesn't excuse this ruling. I think it's the wrong move. Hell, I know it is.

But you ask a historian 10,000 years from now why the court ruled this way and they'll talk about social this and yadda that and it will boil down to it being the most cost effective method for getting the most convictions in a time where fewer police officers with less comprehensive organization faced more corruption and larger cartels.
And that's why the judges had it in their heads to rule this way at this moment in history.

And some sharp kid in the front row will ask the historian: "But getting confessions and putting people in jail that way only makes it LOOK like you're fighting crime. The real criminals might get away while the police are making someone testify against themselves because its easier and cheaper to have oversight and do a more comprehensive investigation! Didn't people just see through all that and become more cynical about the police specifically and the legal system in general? Wouldn't the long term effect be a self-perpetuating and ever greater cycle of overstressed law enforcement incapable of dealing with real crime because of increasing resistance of the community and increasing resistance from the community as their rights are eroded in order to appear to be dealing with crime?"

And the professor will say "Ah, yes. Well, that's another reason the whole shithouse went up in flames."

And they'll learn about the TSA and security theater before getting their memories temporarily wiped, fabricating clothes, and heading back to study WWII and the origin of muslim extremism where they'll lose a guy to glucoside at Somerton Beach near Adelaide, Australia. But I digress.


On note more related to the topic - some public defender's offices have little cards that say: "I understand my constitutional rights to remain silent and to have an attorney present during questioning. I refuse to waive my rights. Stop questioning me until my lawyer is present."

They're not official documents. One could always make up a batch. Read them aloud. Pass them to police when being questioned. Whatever.
It's usually not a bad idea to have one right next to your driver's license. Keep one in your shoe or whatnot.
It's easier to resist stress if you have a talisman and a mantra.
In this case, since it does contain 'magic words' that have a real world (supreme court ruled) effect, it's more than a placebo.
posted by Smedleyman at 11:18 PM on June 1, 2010 [6 favorites]


On note more related to the topic - some public defender's offices have little cards that say: "I understand my constitutional rights to remain silent and to have an attorney present during questioning. I refuse to waive my rights. Stop questioning me until my lawyer is present."

They're not official documents. One could always make up a batch. Read them aloud. Pass them to police when being questioned. Whatever.
It's usually not a bad idea to have one right next to your driver's license. Keep one in your shoe or whatnot.
It's easier to resist stress if you have a talisman and a mantra.
In this case, since it does contain 'magic words' that have a real world (supreme court ruled) effect, it's more than a placebo.

Little bit of a derail, but...

In the UK, section 44 of the Terrorism Act 2000 allows police to stop and search anyone in a 'designated area' without the need for reasonable suspicion. Fewer than 0.1% of those stopped in 2008 were then arrested (let alone convicted) of terrorism offences. If you're black or Asian then you would be four times more likely to be stopped than a white person.

It has recently been declared incompatible with the European Convention of Human Rights, but that hasn't stopped the UK using it.

I have a little card in my wallet (that I got at a Mark Thomas gig), the text on it is as follows:

---
STOP AND SEARCH CARD
I pledge to waste your time if you decide to waste mine
(Let your legal representatives know your wishes and keep this card with you at all times)

In the event of a stop and search being intrusive, unlawful or malicious I pledge to issue a formal complaint to the relevant Police Professional Standards Department. As these complaints are investigated by fellow police officers redress is unlikely to be forthcoming. I therefore pledge to pursue the issue through the IPCC and if the situation permits to issue civil proceedings against the chief constable or commissioner of the relevant police force, seeking an admission of liability and damages.

Regardless of the outcome, you will have your time wasted for wasting mine.
---

It is amusing at least, and actually here it is in pdf from Mark Thomas' website.

Can't imagine the police would like it too much, and I would certainly not like to use it with a US cop, but I like the principle.
posted by knapah at 3:16 AM on June 2, 2010 [1 favorite]


Since when do I have to specifically invoke my constitutional rights to use them? WTF is this, D&D?
posted by QIbHom at 6:22 AM on June 2, 2010 [2 favorites]


When I was arrested I had just turned 19. The cops came to my dorm room w/ a search warrant and just about kicked down the door. When I answered it, I was very calm and polite and scared shitless, because honestly I was glad the whole thing was over.

About that time, a young police officer who was the little brother of my brother's best friend and who we had a fairly friendly relationship with, pulled me out of the room into my stairwell. In that stairwell, he told me that as a friend he had asked to come along, and that the best thing I could do for myself was to tell them everything I knew, accompany them to the police station, and to NOT call my parents, because I should give them one last nights rest before I turned their lives upside down.

So I went back in and showed them everything that wasn't mine.

And then I got into his squad car, no handcuffs or anything, in the front seat, and he took me to Hardees. And then he bought me a drink, offered to buy me food. Then he reminded me that they were going to ask me if I wanted to call anyone or anything, and that I should say no because I wouldn't want to upset my parents at 1am.

So we go to the station, and they put me in the interrogation room, and they turn on the tape. On tape, they ask me if I want to call anyone...and I don't answer, instead office BH says for me "Oh we've talked about that, and TomMelee doesn't want to call anybody, he wants to let his parents get one more night of good sleep before he turns them upside down." And then they hand me the paper, and he points to it and shows me where to sign that I don't want anyone.

And then they proceed to ask me 10 bazillion questions, and I answered every single one truthfully.

So it turns out that, save my statement, the only thing they had on me was possession of stolen property. And in this state, knowledge of an illegal act and the commission of said illegal act are equally punishable.

So I'm watching the evidence video w/ my lawyer, my $10,000 lawyer who we leveraged everythign we owned to pay for, and he doesn't say anything about the advising me against my rights. So I explicitly asked him, having done my own little bit of research, and he wouldn't even consider asking to have the statement tossed, on the basis that I had signed the paper. On film, on the states evidence tape, I was told what to do by a friend, and there would be no argument by my lawyer. I later realized that this was a lawyer who had to deal with these same cops every day of the year, and he didn't want to piss them off.

So I took a plea bargain and I moved on with my life. No, I didn't steal anything---yes, I did stupid things and knew about stupid things. The cops said I was a sociopathic criminal genius, they never mentioned anything about my cooperation or anything.

I sometimes wonder if I could go back now, having accepted a plea bargain that says all over it is permanent and fight for a hearing or something---but I don't, because I already had to go through the spotlight and I don't want to deal with it again. I think in the ensuing semesters I probably handed out 1000 ACLU Bust Cards.

So no, I'm not a bad guy---in fact I think I'm a pretty good guy. Prior to my getting in something over my head as a stupid 18 year old, I was all for big punishment and big sentences and execution and whatnot. Now, having walked that mile, I feel a little differently---because I absolutely know that my case was not the only one like it that day, week, or month.
posted by TomMelee at 6:24 AM on June 2, 2010 [12 favorites]


If you ask me this almost extends a new right. If you simply say "I wish to remain silent", the police can't ask you any more questions.
posted by xammerboy at 6:46 AM on June 2, 2010


if you say something about silent you are now no longer silent

This comment intentionally left blank



posted by Kirth Gerson at 8:58 AM on June 2, 2010 [1 favorite]


Is Thompkins About Shahzad?

"Perhaps it's just me, but I couldn't help but thinking as I read through Justice Kennedy's opinion for the majority that the ongoing debate over Miranda's applicability to terrorism cases is one of the (perhaps many) elephants in this particular room..."
posted by homunculus at 9:20 AM on June 2, 2010


The Burge trial is going on here in Chicago now. Burge was a police officer that is accused of torturing confessions out of suspects. Some were guilty, others weren't. Most of them confessed under torture though.

And at the time, the lawyers of these folks didn't believe, or didn't pursue the fact that their confessions were tortured.
posted by garlic at 9:43 AM on June 2, 2010


I think I'll just sing "The Sounds of Silence" over and over... And get my ass beat... Over and over...
posted by symbioid at 10:05 AM on June 2, 2010


I would counsel although IINAL, but I speak from personal knowledge, that one be extremely, extremely careful about non-custodial "meetings" or "little talks," as they are indeed interrogations and lots of times if a case is borderline, but for whatever reason, the cop (or Detective), wants to nail you, it will begin as a friendly invitation down to the station house to "get to the bottom of this thing." It does not matter how friendly the detective is or humorous, or easy going. HE IS NOT YOUR FRIEND. He's just looking for anything he can charge you on, and will blow up the charges anyway he can. Any visit to the station house means they intend to charge you, but want you to talk under non-custodial conditions, with the suggestion that it is not a big deal and they just want to "understand," what happened. Lawyer up immediately (anyone will do, a friend or someone you can pay for a couple of hours of their time), and go down to the station house with him or her present. If its a BS charge you should be alright.
posted by Skygazer at 10:46 AM on June 2, 2010


I was arrested as a kid. A few times. Mostly for stupid kid stuff. Some things, bit more serious.

What's funny is one of my uncles gave me a great piece of advice when I was busted for something stupid that I admitted to. I thought he was going to kick the hell out of me because he made King Leonidas look like a hippie. But he said "Smed," gently pinching the nerves in my neck and locking my shoulder. "Don't ever admit to anything. Ever. Even if they have you on video doing it. If 200 people and the president saw you, don't ever admit anything. But don't do anything you would be ashamed of doing in the first place. Because you can't hide it from yourself."
So I carried that with me. That and he mentioned that if he found out I was screwing up he'd loosen my teeth.

But my mom could have won Olympic gold in interrogation. She knew ways to shame me, my friends, play tough, get sympathy, etc. - she grew up in a very tough neighborhood and knew everything that was going on, all the time, as a matter of survival. Plus she was one of those people that you tend to naturally confide in.
Dangerous, dangerous woman.

Eventually the only person in the family and in the neighborhood who had any chance of hiding anything from my mom was me. And I could pull it off about 1/3 of the time.

Later in life I got into some situations in some tough rooms. I just started laughing one time and said "My mom tried that same thing on me when I was 12 years old. Nice try asshole."

Sounds farfetched, but it's not at all hyperbole. I was off doing something in the military and I got injured so I hadn't written my mom in a bit. She was worried (I usually wrote and said I was off on a beach somewhere taking it easy or working in an office so she wouldn't worry) and she got the number to my real office.
God only knows how.
I told everyone not to tell my mom where I was much less that I got hurt. Simple rule - don't tell my mom. She'll worry. She's got a bad heart. High blood pressure. It could kill her.
Lots of guys made the same kinds of requests. People respect them even if you're not in their unit. It's a tight knit family. And your family at home is sacrosanct.

Now the guy she eventually talked to was trained in resisting hardcore interrogation. He's got knife scars from studying Kali in Cavite in the Philippines. He went through SERE-c. He's been raked over by highly motivated sadists who are experts in breaking strong men through sleep deprivation, batteries of tests, and beatings. This is a tough, smart, well honed bastard. He wouldn't talk if you pulled his fingernails out and set his balls on fire to keep him from sleeping for a week.

He comes into my hospital room ONE DAY after my mom had made contact with folks in the office.
He's got a satellite phone. "Uh, your mom wants to talk to you..."
He looks all shamefaced but he's handing me the phone.

Again - this guy is trained to resist hardcore interrogation. My mom, who he had never seen in person, not only broke him down, got him to break a solemn personal promise and perhaps violate secrecy, but did it from thousands of miles away with nothing but a telephone in less than 24 hours.

So, much as I like to pat my back and think I'm a smart, tough, unbreakable guy - anyone can be gotten to. And we need protections. My mom isn't the only person in the world with a strong will and silver tongue.
And ok, she's a sweet old lady, and she means well, but that's exactly the problem. It's exactly the case that I was trying to protect her from herself. (She doesn't need to know I'm fucked up when there's nothing she can do about it and worry herself into a heart attack)

Plenty of prosecutors out there think they are fighting the good fight and they believe in what they're doing. And many of them - hey, God bless 'em. They are doing good work and trying to protect people.
But they're not omniscient. And even the best intentions can have unintended consequences. Justice is not served only by incarcerating the guilty. You must protect the innocent.

This ruling makes it just that much more necessary for the innocent to have to get their own backs instead of relying on the very system they support.
posted by Smedleyman at 12:09 PM on June 2, 2010 [11 favorites]


Do not talk to cops. Even if you are innocent. There is literally nothing good which can come from answering an officer's questions. The only thing they do with anything you tell them is use it against you.

This case neither surprises me nor upsets me that much. Of course I wish it had gone the other way, but it won't change anything very much. In reality, the situaitons we're talking about are far more in need of the suspect exercising the right to an attorney than the fifth amendment. After all, if you don't have a lawyer present, the fifth amendment is pretty worthless in itself.

There's a lot of confusion about Miranda among non-lawyers, however. Even among defense attorneys and prosecutors the nuances can get pretty convoluted. Everything revolves around the questions of "express questioning" and "custody," and the exceptions are almost as inclusive as the rules. Here are the big three things to remember, though.

1. Don't talk to the cops. I know this has been said before, but it's just so easy to forget at the time. They are not there to help you. They are there to talk to you until they can put you in jail based on the things you have said while talking to them. So don't talk to them.

2. Assert your right to an attorney immediately. Apparently assert your right to remain silent as well, but the attorney thing is far more important. The longer you go without demanding to have an attorney present the more exponentially and irrevocably fucked you are.

3. This is the important one that no one knows - if you have not yet been read your rights (and a lot of jurisdictions won't read you your rights ever in most cases), try to leave. This seems like a bad idea, but it's the most important thing you can do beyond those first two things. If you are successful, then hey! You're not dealing with cops anymore. If you are not, then the cops are forced to assert control over you, and the situation becomes explicitly custodial. Custody is the hardest thing to prove in a suppression hearing and the crux of the issue more often than not. Help yourself out by putting the burden on the cops.
posted by Navelgazer at 12:53 PM on June 2, 2010 [1 favorite]


Since when do I have to specifically invoke my constitutional rights to use them? WTF is this, D&D?

You don't have to specifically invoke your constitutional right to remain silent in order to use that right by remaining silent. But, as I understand the opinion, if you do specifically invoke the right to remain silent, that invocation might actually exclude statements that you make even if you stop remaining silent and say something incriminating.

In other words, you're allowed to say nothing when interrogated, regardless of whether or not you specifically invoke your right to remain silent.

Think of it as analogous to, say, the right not to eat bacon. The moment you eat a piece of bacon offered to you by the police, you have shown by your action that you are no longer exercising the right not to eat bacon. This is because it's not the right not to be offered delicious bacon by the police; it's the right not to eat it when offered. Likewise, the right to remain silent is not a right not to be questioned. It's the right to not incriminate yourself by answering the questions.

To address your second point, yes, it's a lot like D&D, in the sense that it's a complex system with lots of complicated and often contradictory or confusing rules that are overseen by nerdy people whose opinions about those rules often seem capricious. And they wear robes.
posted by The World Famous at 1:47 PM on June 2, 2010 [2 favorites]


As many have said, this seems to actually weigh in on the side of defendants and the accused. You now have two options if you're picked up and questioned by the police: You can remain silent physically and verbally (the standard approach), or you can invoke your right to remain silent right off the bat or at any time in the process when you're afraid the first tool will fail(the new tool).

While the point of police questioning suspects for long spans of time is valid, it would seem that this would work against the police. As a suspect, if I'm taken into "the box" (yeah, I have the DVD collection of Homicide: Life On The Streets, what of it?), my understanding is that everything from that point on is recorded, visually and with audio. So I can either not say anything, admittedly something that will get harder and harder to do the longer I'm in there, or I can go on record and say that I'm invoking my right to remain silent. Now I've been recorded saying that and it would seem a defense attorney could make a competent case that anything I say AFTER that is inadmissible or coerced.

Further, if the police continue to question me after I've made that invocation, then they're now on record themselves. This potentially means they can be charged with harassment and possibly brutality, depending on the length and conditions I'm held in after that statement. Again, a defense lawyer now has a tape they can point at and say, 'Not only was my client treated unjustly after he exercised his rights correctly, but he was coerced/abused while in the custody of these police as you can clearly tell by the timestamp on this tape." Certainly there can be end runs around this thing, but now I as a suspect have a new tool I can use to ensure that I don't incriminate myself.

And while the point is understood that many may not fully understand their rights in the first place, that's a pretty nonspecific argument. It may sound harsh, but you can't legislate out stupid or uninformed. No matter how clear or simple you make the Miranda process and language, it seems a foregone conclusion that some will still be ill informed or unable to understand the situation. Is ignorance of the law therefore exculpatory? Possibly, but that's why we have judges and juries in cases like these and why a suspect doesn't become a convict the second they say anything to a police officer.
posted by quakerjono at 3:19 PM on June 2, 2010


Do not talk to cops. Even if you are innocent.

You also might want to think twice before taking their picture.
posted by homunculus at 3:31 PM on June 2, 2010 [1 favorite]


Is ignorance of the law therefore exculpatory?

Miranda warnings refer to constitutional rights, not guilt. Exculpatory doesn't play into the scenario.
posted by Mental Wimp at 3:38 PM on June 2, 2010


Best, most mind fuck interrogation, without charges, I've ever witnessed was in the novel, Lush Life by Richard Price. No spoilers from me, other than to say I inhaled it. Great stuff.
posted by Skygazer at 3:46 PM on June 2, 2010


The Obama administration is OK with SCOTUS' decision.

Do not talk to cops. Even if you are innocent.
A law professor and a cop agree.
posted by Rykey at 3:51 PM on June 2, 2010


From homunculus' link:

In at least three states, it is now illegal to record any on-duty police officer.

This is the complete opposite of what we need.

Funny how while the freedom to carry the deadly weapons of the industrial age (firearms) seems to be expanding, the right to bear the non-lethal weapons of the information age (cameras) seems to be increasingly under attack.
posted by weston at 4:56 PM on June 2, 2010


Since when do I have to specifically invoke my constitutional rights to use them? WTF is this, D&D?

Player: I want to assert my right to remain silent.
GM: Okay, make your will save against the police officer's questioning.
Player: ::rolls, adds up modifiers:: All right, I got a 24! I made the save, right?
GM: ...oops, I forgot to tell you -- you suffer a -15 penalty because you're black, so you fail the save and are forced to make a false confession.
Player: $#%&?!
posted by armage at 6:23 PM on June 2, 2010 [1 favorite]


You still have the right to remain silent. Just... remain silent. And there's never been a right not the be interrogated. The right to remain silent is not the right to have the police leave you alone because you don't want to hear them talking to you. It's not a right to silence on the part of the police. Concerns about oppressive interrogation tactics are totally legit but the law thinks about that too. The police can't keep you awake for days at a time or prevent you from having food and water. I don't know what all the rules are, but I know this stuff is not unregulated.

Anyway, as far as I can tell this is one of those decisions that seems bad at first but actually is kind of fine.
posted by prefpara at 6:42 PM on June 2, 2010


Yeah. The major problem isn't actually the law here. I'd like the law to be much more in favor of defendants than it is, but it's already more than halfway there. The problem is that suspects don't understand what their rights are and what they mean. The rights are there to be taken and asserted, but people, unfortunately, just don't take and assert them most of the time.

Now my criminal defense practice is limited to the past year in DC, where they almost never Mirandize anyone as a matter of course, usually because they don't need to - most cases don't require interrogation; you find a guy with a vile of crack on him and you've got all you need.

But nobody who hasn't studied criminal law knows the nature of what makes a Terry stop legit, and how the cops are allowed to search under such circumstances (they can pat you down for weapons, but if some other clearly illegal thing comes up in the pat-down they can arrest you for that, a loophole which might be the most exploited tool in the cop handbook.)

This all goes back to what I was saying above. If confronted with police officers, the only response is to shut up entirely except to say that you are demanding to leave, and if the officers deny you, that you demand an attorney.

That's it. Anything more than that just serves to put you in jail.
posted by Navelgazer at 2:18 AM on June 3, 2010


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