Supreme Court: Speak Up for the Right to Remain Silent

To enjoy Miranda rights, you can't just sit there quietly

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On Tuesday, the Supreme Court ruled that suspects claiming their right to remain silent during police interrogation have to actually say that's what they're doing: they can't simply remain silent. The case brought before the court involved a man convicted of murder partly on the basis of a one-word implied confession at the end of over two hours of interrogation. Since he had remained silent up until the end of the interrogation, his lawyers claimed the confession should be inadmissible.

This new ruling is one in a long string of interpretations and revisions of the so-called "Miranda rights." In this decision, the court split along ideological lines--Daniel Foster at the National Review calls it "a usual suspects 5-4 split," liberal justices opposing the ruling. Yet in the blogosphere, at least, the reaction is not quite so clear. A number of generally left-leaning bloggers are agreeing with the conservative justices on this one.

Here's the best of the blogosphere on what this decision means, why some oppose it, and why some think it makes a lot of sense.
  • 'Decisively Tilted the Warnings Procedure Toward the Police,' writes veteran Supreme Court reporter Lyle Denniston, who notes that "encounters in interrogation rooms," despite the Miranda rules (which have been interpreted and reinterpreted since the very beginning), are "still and often are a test of wills." His translation of the new ruling:
first, if a suspect does not want to talk to police--that is, to invoke a right to silence--he must say so, with a clear statement because it is not enough to sit silently or to remain uncooperative, even through a long session; and, second, if the suspect finally answers a suggestive question with a one-word response that amounts to a confession, that, by itself, will be understood as a waiver of the right to silence and the statement can be used as evidence ... The net practical effect is likely to be that police, in the face of a suspect's continued silence after being given Miranda warnings, can continue to question him, even for a couple of hours, in hopes eventually of getting him to confess.
  • 'Abbott and Costello Routine,' Jon Bershad dubs the decision at Mediaite. "Yes, you now need to tell them that you don’t want to tell them anything." He admits that, in the particular case under review, "the ruling makes sense," but maintains that "just reading the overview of the new rules makes one think that they were thought up by a sketch comedy writer." Chris Cassidy at goes further, disagreeing with the decision: "Wacky, anti-defendant and right-wing? Welcome to the Roberts Court."
  • Actually, This Decision Makes Sense  It's somewhat unusual to see members of the liberal Firedoglake community agreeing with conservative justices, but Shani O. Hilton, writing at the Attackerman blog, does just that: "how did this case even get to the Supreme Court in the first place? It strikes me as completely laughable that someone can ask that a statement given during an interrogation be thrown out on the grounds that they didn’t talk for the first few minutes of being questioned." Adam Serwer, another liberal writing at The American Prospect, also agrees with the conservative judges on this one. He does think, though, that the conservative majority should have required "a modified Miranda warning" to explain this new policy.
  • Need to Control Interrogations, Though  The New York Times editorial board thinks, like Serwer, that the court needed to do a bit more if they were going to rule this way:

[A] three-hour interrogation is too long and too coercive. If the court really wanted to bring clarity to a murky issue, it should have gone further. In cases where a suspect does not explicitly invoke the right to remain silent, the court should have set a time limit on how long the police can continue questioning.

Alternatively, the court could have explicitly changed the Miranda warnings by having police officers tell suspects that they have to verbally invoke their rights.
  • A Reason to Oppose This Ruling  Rick Ungar, a Californian attorney at True/Slant, says even those welcoming what looks like "a step forward in reining in what many believe to be overprotection of the criminal class in the United States" should be careful: the person most hurt by this new decision will not be "the professional criminal who knows the rules of the game" but rather the confused and "terrified" suspect who is "most in need of our Constitutional protections."
  • A Reason to Support It  Doug Mataconis at Outside the Beltway joins the lineup of bloggers defending the conservative majority: "Merely staying silent without specifically saying 'I won't talk' or 'I want a lawyer' ... could mean a number of things from a suspect who thinks he can beat the police interrogator to one who wants to delay the inevitable as long as possible. Requiring police to assume that it always means that the suspect wants to invoke their Constitutional rights seems to me to be an undue hinderence on law enforcement."
  • From Justice Sotomayor: The Purpose of Miranda  Justice Sotomayor argues in her dissent that the decision "ignores the important interests Miranda safeguards" by declaring that "suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so." Here's her case for the importance of an undiluted Miranda, quoting another Supreme Court case:
The underlying constitutional guarantee against self-incrimination reflects "many of our fundamental values and most noble aspirations," our society's "preference for an accusatorial rather than an inquisitorial system of criminal justice"; a "fear that self-incriminating statements will be elicited by inhumane treatment and abuses" and a resulting "distrust of self-deprecatory statements"; and a realization that while the privilege is "sometimes a shelter to the guilty, [it] is often a protection to the innocent."
This article is from the archive of our partner The Wire.