Tuesday, June 01, 2010

Be careful about what you don't say

From Miranda v. The United States:

“...The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent her or him.”

Hence, the thousands of police movie and TV show scenes with the policeman reading from a little card to a suspect.

Let me repeat part of the talismanic sentence. “[H]e or she has the right to remain silent….” As of today, not quite. The Supreme Court ruled today that a suspect having been told his or her rights can’t rely on them until they verbally invoke them. Think about that one. The police office tells you don’t have to talk but you now can’t invoke your right not to talk unless you talk.

The Defendant in today’s case was interrogated for three hours, following him being read his rights, while he remained silent, occasionally responding to a question (nothing that incriminated him) until he slipped up and gave an incriminating answer to a question.

This is wrong on a number of levels. There’s obviously the fact that it throws Miranda and its following cases in the gutter. But, it also completely reverses centuries of law on waiver and consent. You have rights until you affirmatively waive them or consent to something that contravenes your rights. Silence isn’t waiver nor is it consent. Except now it is.

I know too much legalistic jargon; but, this just pisses me off.


The Curmudgeon said...

I've not read the opinion. And I have no strong opinion of my own here. But let me ask a devil's advocate question based on the facts as you present them:

After Defendant was read his rights, you say he was largely silent except he gave some non-incriminating (but presumably responsive?) answers to some questions over the course of the interrogation until he slipped and gave an incriminating answer.

You -- and the headline writers -- have said that it was the silence (that is, the Defendant's failure to verbally invoke his Miranda rights -- that gives rise to the waiver.

But isn't it the prior, non-incriminating answers that establish his willingness to answer at least some questions as he saw fit?

Dave said...

From the NYTimes.com article about the opinion:

"Thompkins was read his Miranda rights but refused to sign a form acknowledging that he understood them.

Mr. Thompkins then remained almost entirely silent in the face of three hours of interrogation, though he did say that his chair was hard and that he did not want a peppermint.

After two hours and 45 minutes of questioning, Mr. Thompkins said yes in response to each of three questions: “Do you believe in God?” “Do you pray to God?” And, crucially, “Do you pray to God to forgive you for shooting that boy down?”

His affirmative response to the last question was used against him at trial, and he was convicted of first-degree murder."

From Miranda itself as quoted by NYTimes.com:

“'a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.'
'It added that the government faced 'a heavy burden' in trying to prove that a suspect’s waiver was knowing and intelligent."

The burden has been significantly lowered.

Thomas said...

Hindsight is 20-20, of course, but he should have invoked his right to have an attorney present. He might be a free man today if he had.

The Curmudgeon said...

Well, I have to agree that the tender of a form acknowledging receipt and understanding of his Miranda rights is an important fact.

There was a 3-year old murdered in far suburban Chicago a few years back. Her father was the immediate and only focus of the police investigation. He confessed to the crime after lengthy interrogation.

DNA evidence exonerated him.

He and his wife recently got an eight figure judgment in a civil rights suit against the local sheriff.

And, most recently, that DNA evidence led to the arrest of a convicted sex offender -- still in jail from another offense.

People will confess to anything with sufficient prompting. For some folks, that prompting may not even seem to be particularly harsh.

In the case at blog (a new term I just invented), I'd be curious to know what else the cops had when they extracted this inculpating statement. The NYT says that his inculpating statement was used to convict him. But, on the record submitted, was this the crucial piece of evidence or just overkill?

I don't know if that should make a difference either, but I'm still curious....

Dave said...

It would be interesting to know Curmudgeon. I've read the cases that say, yes there was error but given the overwhelming evidence.... I'm not sure if that works with a constitutional violation, which this isn't I'm sad to learn.

Dave said...

And, I may steal "case at blog" if I remember it.