Tuesday, June 01, 2010

Say What?

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.


anotherpanacea said...

I think you're overstating the objection in the "slippery slope" paragraph, which echoes the dissent's protest that the majority is demanding "magic words" not currently specified in the Miranda warning. It's generally better to affirmatively claim one's rights rather than hope they'll be protected. "You have the right to remain silent" is already somewhat misleading, and it ought to be altered to "You have a right to refuse interrogation."

I haven't read the opinion, yet, but it seems like it could be salvaged if we see Miranda rights through the lens of the 5th Amendment, not the 1st Amendment. That is, we should replace the somewhat "free expression"-y right to remain silent with a positive right not to be interrogated.

It's really to a defendant's benefit to get out of the interrogation room, and an affirmative right not to be interrogated is preferable to hours of the police lying, manipulating, and talking themselves into believing that you're guilty while you sit stoically. The right to remain silent largely cemented this image of stolid refusal to answer questions: the defendent in this case had to sit through three hours of questioning before he broke down. We can and ought to do better.

It's a symbolic defeat, but perhaps also a practical victory. Rather than think of this decision as a loss in some sort of liberal/conservative trench warfare, we ought to see it as an opportunity to expand the institution of rights that protect the accused.

I also think the facts in this case raise more questions than the abstract discussion of principles:

Thompkins was “[l]argely” silent during the interrogation, which lasted about three hours.He did give a few limited verbal responses, however, such as “yeah,” “no,” or “I don’t know.” And on occasion he communicated by nodding his head. Thompkins also said that he “didn’t want a peppermint” that was offered to him by the police and that the chair he was “sitting in was hard.”

About 2 hours and 45 minutes into the interrogation,Helgert asked Thompkins, “Do you believe in God?” Thompkins made eye contact with Helgert andsaid “Yes,” as his eyes “well[ed] up with tears.” Id., at 11a. Helgert asked, “Do you pray to God?” Thompkins said “Yes.” Helgert asked, “Do you pray toGod to forgive you for shooting that boy down?” Thompkins answered “Yes” and looked away. Thompkins refused to make a written confession, and the interrogation ended about 15 minutes later.

When, during that conversation, would you have terminated the interrogation? It seems more like he was being partially cooperative. The old Miranda formula is vague because it's meant to cover all stages of the detention from lockup to trial. What we need are additional guidelines specifically for interrogations themselves, because the old Miranda warnings aren't sufficient.

DOCTOR J said...

@AnPan: I like the way you're thinking... though, I'm skeptical that this decision is really an opportunity to expand/redefine Miranda.

I haven't read the whole decision, either, but I don't see anything yet that indicates that the majority opinion was viewing Miranda rights "through the lens of the 1st Amendment." I'm curious why you say that, since it seems that taking the right to silence to be a mode of the right to free expression would have inclined the justices NOT to resrict an arrestee's exact expression of its invocation. What I've read so far seems squarely within the frame of the 5th Amendment; the majority opinion was obviously attempting to delimit the privilege against self-incrimination. That is, they were/are restricting the rights of arrestees, not opening a window for their expansion.

I went back and put a link to the entire text of Burghuis v. Thompkins. Maybe you see something in there that I don't.

I couldn't agree with you more about the need for a right not to be interrogated ("by police," I assume you mean). For better or worse, police are "officers of the court" too... but they simply don't exercise the same impartiality as attorneys, judges and juries. Amending Miranda to include the negative right not to be interrogated would undoubtedly make life difficult for people like Jay Bybee, though!

anotherpanacea said...

I think you're right to link this to the Bybee memo, because it's really cases like Faisal Shahzad that are in the background here. If the dissent had their way, then we'd have to cease questioning terrorist suspects at the first sign of refusal to cooperate. That's silly. It's better to recognize and inform a prisoner of an affirmative right to be free from interrogation or to consult a lawyer before proceeding with the interrogation. Then allow them the opportunity to exercise that right, or not. If they choose not to do so, and then incriminate themselves... well, that seems fair to me. We ought to supply protections when asked, but we don't have a responsibility to protect criminals from their own stupidity.

The dissent appears to want all inquiry to end when a suspect first responds to a question with silence. But that's unworkable: sullenness can't be an excuse to cease investigations. If a suspect isn't willing to speak up for themselves, why *shouldn't* we continue to question them? Somebody's dead, you're the only witness/suspect, and we're supposed to ignore you because you're a bit reticent?

Thompkins had the opportunity to refuse to be interrogated, but he chose to remain sullen and mostly silent. This despite the fact that somebody had just shot a bunch of people in his neighborhood. In my view, the police were correct to continue questioning him, and his affirmative response does constitute a confession that was legitimately admitted to evidence. If I were on the jury, presented with this evidence, I would likely have convicted. What would you have done? Would you rather not know that he agreed that he was in need of forgiveness?

As to the grounding in the 1st/5th Amendments... this gets a little into the weeds of the case laws, but originally Miranda was interpreted as a kind of penumbra right, like privacy: the right against self-incrimination plus the right not to have one's speech compelled. But that interpretation was eliminated quickly because the court can always grant immunity and THEN compel a witness to give testimony. There are lots of situations in which you don't have the right to remain silent, so it's an over-broad description.

But the Miranda formula was already laid out, and it included this "Right to remain silent" rather than some other, more exacting formulation. Thus we get hours of interrogation: the police can't *make* you talk, but they don't have to leave you alone, they can continue to pester you until you tell them to stop explicitly.