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You don’t have the right to remain silent if you remain silent

The Supreme Court ruled today that in order to exercise your right to remain silent, you have to explicitly tell the police that you are invoking that right. It isn’t good enough to just remain silent.

As dissenting justice Sonia Sotomayor put it, this decision turns the famous Miranda rights upside down. “Criminal suspects must now unambiguously invoke their right to remain silent — which counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.”

What’s next on the Supreme’s agenda? You only get due process of law if you ask for it? You have to label all of your possessions — your car, your home, your camera, your mobile — “private property” or else the government can take them away from you? The police can search your house when you’re not home unless you have signs telling them not to? The government can establish a religion unless you tell them you don’t want it? The government can use cruel and unusual punishment, unless you ask them to be nice?



  1. Sammy wrote:

    Officer: “You have the right to remain silent….”
    Suspect: (says nothing)
    Officer: “You must tell me if you wish to remain silent”
    Suspect: “Okay, I invoke my right to remain silent.”
    Officer: “Oh gotcha! I didn’t say ‘SIMON SAYS you have the right to remain silent.'”

    Tuesday, June 1, 2010 at 12:44 pm | Permalink
  2. Ah, the joys of having to opt-in instead of having to opt-out.

    Tuesday, June 1, 2010 at 2:36 pm | Permalink
  3. TJ wrote:

    “The ruling comes in a case in which a suspect, Van Chester Thompkins, remained [b]mostly silent[/b] for a three-hour police interrogation before implicating himself in a Jan. 10, 2000, murder in Southfield, Mich. He appealed his conviction, saying he had invoked his Miranda right to remain silent by remaining silent.”

    He didn’t stay silent. Mostly silent is not silent. He had a right to stay silent, but he didn’t do it. So to argue that you “invoked your right to remain silent by remaining silent” is a false argument, as he did not remain silent. It doesn’t say “you have a right to remain mostly silent and if you only say a little bit it won’t be used against you in a court of law, but if you talk a lot anything you do or say can be used against you in a court of law.”

    If you want to talk about his right to have a lawyer present, that’s a different subject. If you want to talk about his ‘right to cut off questioning’, as Kennedy put it, that’s a different subject too. Neither of those is being argued here, so it can be assumed that he did not ask to invoke those rights. It is not the job of the police to assume that you want an attorney or to stop their own interrogation. Had the the police not followed the rules in either of those cases, this whole thing would have (hopefully) gone differently.

    It could be argued that the man’s “yes” to the question “did you pray for forgiveness after shooting that boy” doesn’t actually constitute a “confession”, but again, that’s not being argued in this case.

    I have to say, I expected to think differently about this case when I first read this article, but after reviewing it, I believe that the decision handed down was the correct one.

    Tuesday, June 1, 2010 at 2:48 pm | Permalink
  4. Iron Knee wrote:

    TJ, I too think that in this particular case, the subject waived his right to remain silent. The problem I have is that they are using this case to change the general rule about Miranda rights. Should this case have been decided the way it was? Perhaps. Should it be used as a precedent in future cases? Probably not.

    Should the wording of the famous Miranda rights be changed to inform people that if they want a lawyer or to remain silent, they should request it? Absolutely.

    Tuesday, June 1, 2010 at 7:15 pm | Permalink
  5. starluna wrote:

    This case highlights the challenges with the processes used in our judicial system. Thompkins did not remain silent, nor did he ask for a lawyer, and he refused to sign the form that stated that he understood that his Miranda rights. His lawyer was not arguing about his right to have a lawyer present or for the police to stop questioning after he remained silent. The courts don’t choose the cases that come before them and they are generally required to make decisions on the basis of the arguments made before them. A better case and a better lawyer may have resulted in a different decision.

    I have heard that there is a rumor going about some criminal circles that if you refuse to acknowledge you understood your Miranda rights, that you will eventually be able to get off on a technicality. This decision does clarify that you have responsibilities that go along with your rights. You have to express yourself affirmatively if you want to invoke your rights. Same as with voting. Thinking about voting is not the same as getting off your butt and into the poll.

    There are some practical concerns that I have about the ruling, mainly in relation to questioning suspects weeks after they’ve invoked their Miranda rights that Sotomayor discussed in her dissent. On the whole, I am not too upset about this decision. Unfortunately, it was not the best case for this kind of question, but like I said, we don’t control that.

    Wednesday, June 2, 2010 at 8:47 am | Permalink
  6. Iron Knee wrote:

    Thanks for the excellent summary, Starluna.

    Wednesday, June 2, 2010 at 12:07 pm | Permalink