SCOTUS – Miranda means you have to say "yes" to silence
The Supreme Court decided yesterday, in a narrow vote, that if you want to remain silent – and stop police from peppering you with questions – you have to say you wish to remain silent (and thereby legally end the police questioning).
Our newest Supreme Court Justice, Sotomeyer, dissented saying this ruling “turns Miranda upside down.”
“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.”
That’s what happens when the word “right” is thrown around haphazardly as it is in today’s culture. What Sotomeyer is attempting to do (and what the court has done in the past) is imbue a legal privilege with the mantle of “right”. Telling someone they have the option of remaining silent has nothing to do with a right. It is a privilege our legal system has granted to those who’ve been arrested so they won’t incriminate themselves mistakenly.
There’s nothing wrong with requiring an acknowledgement that they wish to invoke the privilege of silence. There is likewise nothing wrong with assuming they aren’t invoking it by their silence. They must speak when they’re asked if they understand the Miranda warning, and they must speak to acknowledge their desire for a lawyer. There’s certainly nothing wrong with speaking to say you are invoking the legal privilege of silence.
It’s an “opt in” situation (just as speaking up for a lawyer). Otherwise, police are free to assume that privilege isn’t being used and can continue to try to question the suspect.
I see no right – in real terms – violated by this ruling. And I assume that the Miranda warning will be modified to say that the person arrested must clearly state they choose to be silent and that will be recorded or attested too. The simplest way is verbally followed up by a standard form invoking the privilege and signed by the defendant. I don’t see a problem there.
BTW, Elaina Kagen, now a SCOTUS nominee, had this to say about the case to the court as solicitor general:
“An unambiguous-invocation requirement for the right to remain silent and terminate questioning strikes the appropriate balance between protecting the suspect’s rights and permitting valuable police investigation.”
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