The Supreme Court's New Miranda Rules - Perhaps a Boon for Defendants?

I was going to write about this shiny, new SCOTUS ruling as soon as I got home from work, but I just saw that Shani O. Hilton wrote most of what I wanted to say.

About the ruling:

Want to invoke your right to remain silent? You'll have to speak up.

In a narrowly split decision, the Supreme Court's conservative majority expanded its limits on the famous Miranda rights for criminal suspects on Tuesday – over the dissent of new Justice Sonia Sotomayor, who said the ruling turned Americans' rights of protection from police abuse "upside down."

Justice Anthony Kennedy, who wrote the majority opinion, said a suspect who goes ahead and talks to police after being informed he doesn't have to has waived his right to remain silent . . .

A right to remain silent and a right to a lawyer are at the top of the warnings that police recite to suspects during arrests and interrogations. But Tuesday's majority said that suspects must break their silence and tell police they are going to remain quiet to stop an interrogation, just as they must tell police that they want a lawyer.

What Hilton says:

In her dissent, Sotomayor wrote that this decision “turns Miranda upside down.” And I admit, that was my first reaction, too.

But 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. It should be as simple as: you have a right to remain silent, so long as you remain silent. That is, if you start talking, you’re no longer exercising that right.

Setting that aside, however, maybe the court’s decision isn’t that terrible. I think my initial reaction was out of worry that suspects may not know that they have to say something. But this ruling has the potential to clear up any ambiguity about the “remaining silent” clause. I was talking to a friend, and he noted that if the Miranda language were modified to include something along the lines of “you have to actively assert your right to remain silent,” it could be okay. Then cops, prosecutors, and suspects are all protected.

This was pretty much my progression of reactions as well. To flesh it out a little more, there is a lot of case law that says when a lawyer is requested, that the interrogation must end until that lawyer is present. But in the case of remaining silent, I don't know that there were any guidelines whatsoever about ending the interrogation. The police, obviously in a much more advantageous position, could just wear down the suspect until he decided to talk, at least according to the federal constitution. (In fact, as Hilton noted in the updates, this is precisely what happened in the three-hour interrogation that led to this Supreme Court case.)

So while I had the same initial reaction that people probably will not know to assert their rights in the future and that this will hurt suspect and defendants, changing the Miranda warnings could be an easy enough workaround for that. In fact, some states already have an approximation, e.g. Virginia: "You can decide at any time from this moment on to terminate the interview and exercise these rights."

And what of Sotomayor's protestations that

Criminal suspects must now unambiguously invoke their right to remain silent – which counterintuitively requires them to speak," she said. "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.

First, the fact that they must speak to invoke the right to remain silent is great rhetoric, and somewhat ironic, but for the most part meaningless, as long as invoking the 5th amendment still cannot be used as evidence of guilt.

The second problem is of more concern, in that we typically think of the default position of rights as not having been waived. However, one glaring exception to this is in the very same doctrine (that is, Miranda). You do not have to have a lawyer present unless you request one, and therefore, the default state for the right to an attorney is waiver, too! And even if that were not the case, if you were to merely remain silent, and somehow outlast the officers, that is exactly as it was before - no more, no less. This ruling at least creates a way out. And assuming suspects are made aware of the option, the fact that this creates a way to end the interview may turn out to be a boon for them after all.