Straight from the You-Gotta-Be-Kidding-Me Files, we have this update from the Supreme Court of the United States: if you want to invoke your right to silence, you better say so. OUT LOUD.
Oh, SCOTUS, why do you hate Miranda so?
As you may remember from Civics class, the 5th Amendment to the U.S. Constitution guarantees all of us the right to remain silent, that is, the right not to incriminate ourselves. And as you no doubt remember from every Law&Order episode ever, suspects are to be reminded of this right when they are arrested-- before they are interrogated-- and arresting officers are to be sure that suspects understand their Miranda rights, even if that means translating the warning into the suspect's native language. Until this most recent Supreme Court decision (Burghuis v. Thompkins, 08-1470), an arrestee's silence was not considered to be a waiver of these rights. But in a 5-4 decision today, SCOTUS ruled that remaining silent was not tantamount to invoking your right to do so.
If it weren't such a devastating blow to civil rights, the decision would be almost comical. There is more than a bit of cartoonish absurdity involved in the logic that concludes one must speak in order to invoke his or her right to be silent. (Reminds me more than a bit of the old "Duck Season, Wabbit Season" sketch.) In her dissent, our newest Justice Sonia Sotomayor got right to the heart of this absurdity, writing: "Criminal suspects must now unambiguously invoke their right to remain silent – which counterintuitively, requires them to speak... At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded." Yeah, counterintuitive is an understatement.
The majority opinion attempted to draw a parallel between an arrestee's right to an attorney, which he or she must explicity request, and an arrestee's right to silence. If you're being interrogated and you want the interrogation to stop so that you can consult legal counsel, you have to ask for that. If you cannot afford legal counsel, the court is obliged to provide it for you, but there is nothing to stop police from proceeding with their interrogations and investigations in advance of your invoking your right to an attorney. According to Justice Anthony Kennedy, the same logic applies to an arrestee's right to silence. Unless he or she says-- out loud and in an unambiguous declarative statement-- that he or she is invoking the right to silence, then it should be assumed that said right is being waived.
Of course, the problem with this parallel is that it seems entirely reasonable to presume that a suspect who has been informed of his or her right to an attorney, and who does not ask for that attorney, is effectively waving his or her right to one. (At least temporarily, because we know, of course, that this right can be invoked at any time.) On the other hand, it seems entirely unreasonable to presume that a suspect who has been informed of his or her right to remain silent, and who remains silent, is not in effect invoking the right to do so as a "right." At the very least, it seems safe to assume that he or she is NOT "waiving" the right to remain silend by remaining silent!
What's more, there is an easily anticipatable slippery-slope that proceeds from the logic of this decision. For example, what exactly are we going to require suspects to SAY in the course of invoking their right to silence? It's going to have to be something more than "I don't want to talk" or "I won't answer any questions," because neither of those positive declarations are substantively different from simply remaining silent. Will courts require that suspects say something like "I invoke my right to remain silent" or "I am exercising my privilege against self-incrimination"? Again, I'm not sure that's substantively different than remaining silent. What's left to make sense of the SCOTUS decision except a demand that suspects declare something similar to the "pleading the Fifth" statements that are often delivered in trials?
When witnesses plead the Fifth in trial, their statement of that plea usually follows this form: "On advice of counsel, I invoke my right under the Fifth Amendment not to answer, on the grounds that I may incriminate myself." In a courtroom, no inferences at all can be drawn from this declaration. But I wonder whether or not such a statement, inside a police interrogation room, would be treated so judiciously. My guess is that it would be taken, effectively, as an admission of guilt-- or, at the very least, as a justification for heightened suspicion-- which would no doubt undermine further the already-waning presumption of innocence in our legal system.