One difference I can see is the the free speecher gets to use his right, then points out his right to do so afterward.
With this Miranda decision, a person only gets to use his right after he points out that it’s his right to use his right.
Speaking is an act, which I am free to engage in, and is protected by the US Constitution.
Remaining silent is an act, which I am free to engage in, but only after I speak up and tell people that I am not going to be speaking as an assertion of my right to not speak, rather than just not speaking at all and thus simply engaging in the act, which is my right, except that I didn’t tell anyone I was doing it, so it isn’t a right?.. it’s all kind of circular and ridiculous (tho perhaps not unnecessary).
If something is a right, then people should be able to engage in that activity without having to declare that they are doing so. I don’t display a sign on my vehicle that displays my right to move about freely, or else I can’t do it.
Anyway, so what happens with the suspect who doesn’t answer questions but never invokes his right to remain silent?
IIRC, in the case of a warrantless search, a presumption that the search has been refused exists unless the owner or person in control of the vehicle/premises/whatever explicitly authorizes the search.
If he’s not answering questions, he’s presumably exercising his right to remain silent - though not invoking it.
This particular guy is assumed to have waived his right to remain silent, not because he failed to explicitly invoke it, but because he didn’t remain silent.
When asked a question during a trial, you must invoke your right against self incrimination. Just sitting there not answering the question could be considered contempt of court. No?
I don’t really see a problem here. The real meat of Miranda is that you have a right to have an attorney present while you’re being questioned. If the cops tell you that you have the right to remain silent, and all you do is remain silent, I don’t see why it should not be assume that you waived that right if you suddenly start talking.
Here are two potential problems. I’m not sure what I’d have said ought to be the result here, but since everyone seems in agreement in one direction I’ll suggest another perspective, at least.
First, Miranda isn’t so passive as to allow the police to simply read the rights and then do whatever they want. The case doesn’t just say that a suspect has to be informed of certain rights, bla bla – the famous part. It also says that once a right is invoked, questioning must cease. If the suspect says he wants a lawyer, no questions until the lawyer gets involved. If the suspect says he wants to invoke his right to be silent, no more questions, period, unless the suspect indicates that he no longer wishes to be silent.
This:
misses the point that the suspect did not just suddenly start talking. He answered a question after ignoring a whole bunch of questions – he talked in response to interrogation. If silence in response to the reading of the rights is an assertion of the right to silence, then any interrogation after that point is a Constitutional problem. And if talking after being silent for a while is a waiver of the right to silence, then the silence before that waiver must have been an invocation of the right, which should have served to cut off all questioning. Right?
Second is the point that if the police read you your rights and you just sit there silent, you haven’t manifested any understanding of the rights. If the suspect doesn’t make any indication at all that he understands the rights and the facts about the questions the police are going to ask, he hasn’t been successfully Mirandized in that case, either, because he couldn’t waive his right if he didn’t understand it. So there are potential sticky areas on both sides of the spectrum here – if he really was totally non-responsive, then he couldn’t have waived the right and he shouldn’t have been questioned. If his (mostly) silence is interpreted as the beginning of an attempt to invoke the right to be silent, then the police shouldn’t have been interrogating him and it never should have come to his eventual confession.
There’s middle ground, to be sure. You can read the situation such that that he did understand his right – knew that he could be silent if he wanted to – but never actually invoked the right, thereby impliedly waiving it by his failure to invoke it. But I don’t think it’s as clear as the discussion in this thread suggests, because of the way Miranda works.
According to the opinion, and even the dissent, both of which can be read here, at a suppression hearing before trial, a police officer testified that Thompkins did indicate that he understood his rights, though the officer couldn’t remember if Thompkins verbally indicated his understanding. The problem with silence being considered an invocation of the right to remain silence requiring interrogation to cease is that there is no way of knowing at what point of the silence actually crosses the threshold of an invocation - 5 minutes, 25 minutes, an hour? SCOTUS has previously held that invoking the right to counsel must be unambiguous and in the Thompkins case basically ruled that the same standard applies to the right to remain silent.
Since Thompkins did appear to answer some questions with a few words during the course of the interrogation - neither the opinion or the dissent really give a good timeline - this essentially makes it ambiguous.
As for the waiver, the Court held that short of an express waiver, an implicit waiver of the right to remain silent could be found when someone has acknowledged that they understand their rights following a warning along followed by silence and a course of conduct indicating a waiver. Here, they determined that the waiver was Thompkins answering questions, however intermittently, and ultimately him giving an implied confession.
Despite how it’s always presented in movies and television, there is no standard form a Miranda warning has to take so long as it includes the basic information. Ultimately though, as this decision underscores, the burden for invoking the right to remain silent and/or to request to speak to an attorney will always remain with the individual who is about to be questioned. This new rule won’t help the helpless but it will help those who want to try and help themselves.
Depending on the state (in Arizona, it’s Rule 15.2 of the Arizona Rules of Criminal Procedure), as a part of the discovery process in a criminal case, a defendant may be required to submit to fingerprinting, posing for certain kinds of photographs, providing handwriting samples, and speaking for voice identification. Since police asking certain biographical questions of a defendant such as their name aren’t considered questions likely to elicit an incriminating response - thus not required to be subsequent to a Miranda warning - a general voice sample could be taken then as well. In that case, the mere sound of a person’s voice is not self-incrimination, it’s merely used for identification by a witness or victim.
Taking this to the ridiculous extreme, if you could be identified visually or by fingerprints… wouldn’t posing for a photo or standing in a line-up or giving your prints also be self-incriminating? I think it’s clear that self incrimination doesn’t extend to things that simply identify you, even if they may also identify the suspect.
Your fingerprints, your picture and your voice are not implicitly incriminating.
Back to the original topic:
After you agree that you understand your rights, the cops can freely question you without a lawyer, even though it is your right to have a lawyer present during questioning… until you request one. At which point questioning ceases until a lawyer is present. And they can keep questioning you hoping you might answer some questions, until you specifically say you won’t.
I’ve read the opinions, and this isn’t exactly true; at least, I don’t think it is. I may have missed something. The court says:
and later:
There’s nothing there that I can see about a specific indication of understanding, other than the verbal one that the officer himself isn’t sure about. In fact, the officer said he wasn’t even sure he asked. What I wonder is, don’t we care at all that there’s no evidence that he indicated that he understood? We have one clear piece of evidence, which is that he refused to sign the form that said he understood. We have “conflicting evidence,” which is to say that we have the guy who gave the evidence saying he isn’t really sure, about whether he verbally said he understood. So what did he do? They asked and he nodded his head? If so why isn’t that in the record? According to the court’s opinion, it appears that it doesn’t matter. The opinion does not actually say that the officer testified Thompkins understood (again, except for the above) – it just says that there’s no reason to believe he didn’t.
We know for sure that he heard his rights - he even read one of them aloud himself. It’s probably true that as a practical or a common sense matter that he had a pretty good idea what they were telling him. But I don’t see anything that indicates that he ever did show any indication he understood what it meant to exercise his right to be silent, and my understanding of the rules is that, well, we need something like that before a constitutional right is waived by implication.
So, silence is acceptable as an affirmative that he understood his rights? Is that what’s implied?
Or are we all now legally assumed to understand things unless we say we do not? Even if we aren’t asked?
“Did the defendant want a grilled cheese sandwich?”
“Your Honor, he indicated that he did.”
“Did he ask for one or did you offer him one?”
“I don’t really know, your Judgeness.”
“And how did he indicate he wanted a grilled cheese sandwich?”
“Well, he mumbled or he said yes or something.”
“After you asked him if he wanted a sandwich?”
“Well, I’m not sure I asked him. But I remember he said ‘yes’.”
“The defendant answered in the affirmative?”
“Well, he might have just nodded his head. I can’t really recall.”
“Let the record show that the defendant heard, understood, and responded positively to the possibility of eating a grilled cheese sandwich.”
“Objection, your Honor. My client is a vegan who does not eat dairy products, and has been mute since birth.”
“Overruled.”
Seriously, are we all now just assumed to have heard and understood the Miranda rights? Will that be a legacy of this case?
I thought he acknowledged he understood his Miranda rights. The key point seems to be whether it should reasonably be inferred that by his silence, he wanted the interrogation to end. He was never compelled to say anything. The dissenting point was that his silence should have prompted the officers to cease the interrogation, exactly as they would have if he said, “This is over. I want a lawyer and I’m not answering any questions.”
The decision doesn’t compel future suspects to say anything, but it (reasonably, I think) says the cops aren’t mind readers. But even if that’s too much for him, uttering the words, “I want a lawyer” or “I won’t answer any questions,” he needn’t say a word. But then the cops can keep asking questions. And if he answers, it is not a defense to later say, “You should have stopped asking, by virtue of the message I was sending you via my silence.”
If you want to use your analogy, it would be the cops asking him for 3 hours if he wanted a grilled cheese sandwich, until the suspect finally blurted out, “Yes! Yes! I want a grilled cheese sandwich!” Sotomayer would argue that his silence was a clear inference that he didn’t want to answer the question and the questioning should have ceased–not that it wasn’t reasonable to conclude he wanted the sandwich. (For some reason I’m hungry now.)
Strat, Jimmy’s post above mine details his concern that there may not have been a confirmation that the suspect understood his rights, or if he was even asked if he did understand them.
I was only commenting (and asking a question) based on that.
The officers had him read the 5th part of the Miranda form out loud, to ensure he could read and understand English: "You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.” The suspect refused to sign a form saying he understood his rights. And there was ambiguity to some extent as to whether there was verbal confirmation that he understood this simple rule. But it doesn’t read to me as if the case hinges on this, or that the conclusion is that Miranda rights should no longer be read, or anything like that. The case didn’t hinge on his understanding of his Miranda rights–in fact, I read it to mean that it is assumed he understood and was, in fact, exercising his rights, and that the cops should have recognized this.
You’re right in that the interrogating officer couldn’t remember whether Thompkins verbally acknowledged understanding his rights or not - he could have just nodded his head in the affirmative when asked the question. The problem is that absent any video recording of the interrogation, the only way to challenge the interrogating officer’s version of events is either the testimony of other officers who were watching the interrogation, in the room or otherwise, or Thompkins himself. Since the opinion and dissent do not mention any testimony from Thompkins, it appears he did not testify at trial. So, there wasn’t anything to dispute or contradict the interrogating officer’s version of events.
Are you saying either the opinion or the dissent addresses this as a problem in this particular case? My read of this is that the defendant’s appeal depended upon the notion that he not only understood his rights, he was exercising them. Do you read it differently? Again, I didn’t scour all 46 pages, but I didn’t see this as a major point–it appeared to me that it was not a major point of debate, that it was a given (more or less) that he was read and understood his Miranda rights. Worded differently, none of the arguments on either side make sense if there was a credible assertion that he wasn’t read or didn’t understand his rights. I don’t think that issue requires SCOTUS at this point. Did I miss something?
Yes, good summary, better than I put it (but same conclusion): this case isn’t really debating if he was read his rights or if he understood them. That’s not the argument here.
Okay, I get what Jimmy was calling attention to, but now I have to agree with Strat & Camus that it seems to be sort of a minor (and mostly moot) point, because the main argument was that he was exercising his right, but didn’t specifically invoke it. If he didn’t understand what his rights were, then he can’t argue he was trying to invoke them, at least not very convincingly.
As always, thanks to the legal types who post here.